Corruption and autonomy can't go together

Law and order is a prime State subject where sovereign authority lies only with the Executive. Investigation into any cognizable or complained offence is the exclusive domain of the police as per the Code of Criminal Procedure. Under Sections 156 and 36 of Cr.P.C., an officer in charge of a police station or any higher police officer has the power to investigate a cognizable offence without any orders of the magistrate. Before the charge sheet is filed, and if there is any complaint of abuse of power, the power of the High Court or the Supreme Court can be invoked, and it can intervene.

After a charge sheet is filed in the Magistrate's court, the latter will take over monitoring of the investigation and prosecution. The evidence gathered by the IO has to be produced before the court which will appreciate its value. Normally, it is the IO who investigates and the trial court tries the case where the police prosecute the accused.

However, the autonomy of investigation is affected by several factors: a) The Government has total power to appoint anyone as Director General of the CBI or Director General of police, b) It retains the power to sanction probe against corrupt public servants, c) It can transfer investigating officers to unimportant positions to dilute probe, d) the ministers charged against continue to hold their power, and so surely hamper the investigation.

Unless a citizen moves constitutional courts, i.e., High Courts or the Supreme Court, through PIL (Public Interest Litigation) there is almost no chance to probe corruption of public servants. Recently, all the scams, such as 2G Spectrum, Commonwealth Games, and Coalgate were probed only at the instance of the judiciary. This is both good and bad; good because at least courts came down on the serious corruption indulged by politicians; bad because there is no system created for such probes and it is difficult for all to take circuitous route from top courts to lower court.

To avoid this, and keep the Executive's political interests at a distance, civil society is demanding Lokpal, which is supposed to be a high body of reputed persons of integrity who can review and sanction prosecution besides supervising investigation. The Supreme Court is supervising the Coalgate investigation, which is a unique thing that must not have happened in any other democracy so far.

The CBI is supposed to report the progress and submit the reports to the Supreme Court. The CBI was asked not to share the report with any other authority except its 33- member team and Director. The Law Minister, the PMO and officials of the Coal Ministry summoned the Director and altered the report. A The apex court wanted to know if the Law Minister could ask the CBI to show details of probe or status report in a case involving people of other Ministries and the PMO. Does it not subvert the integrity of investigation if changes are brought in status report on the suggestion of the Law Minister and officers? It is not the CBI, but these high dignitaries that interfered with its autonomy.

The Government has transferred DIG Ravi Kant Mishra who was the investigating officer in the case. His transfer to the Intelligence Bureau was considered as a serious interference and the apex court directed immediate steps for his repatriation to investigation. The Supreme Court even wanted to consider various aspects, including the setting up of a Special Investigation Team (SIT), to look after the probe into the case. At every level of investigation, the CBI needs to take the Government's permission, which gives scope for the Government to use the CBI in any way it wants, as rightly said by its former Director Joginder Singh.

After the CBI's affidavit disclosed that it had to share report with government, the SC described the CBI as a "caged parrot speaking in its master's voice. It's a sordid saga that there are many masters and giving unbridled power to the CBI is not possible. The CBI has become the police force and is in the administrative control of the Central government. CBI investigations have to be independent."

Fifteen years ago, in Vineet Narayan case, the apex court had suggested creation of a system to make the CBI independent in its investigation. It was only a suggestion, hence not taken seriously. It gave a specific direction saying "that if a law was in the offing which would protect the CBI's impartial investigations, then it will not pass any orders but if there was no such move, then we will step in.

What is important is that, along with autonomy, accountability should be ensured. The Supreme Court recognized that giving unbridled powers to the agency was not a possibility. Then who will impose these limitations on the CBI's power? It is again the Executive headed by politicians.

The Supreme Court studied the report on investigation and was not satisfied. It said: No substantial progress has been made in the coal scam probe after registration of the case.A The Manmohan government constituted a Group of Ministers to study and propose the law to provide autonomy to the CBI. But the question is when they do not remove the rule of prior sanction for probing political corruption, not accept an independent Lokpal, what kind of autonomy can they legally provide? Though they asked Ashwani Kumar and Bansal to resign from their respective ministries, what would have happened if they had continued?

When the Supreme Court is supervising the investigation, it is performing the job of the Executive in one way and of the magistrate in another way. Though it was inevitable to check the personal interests of political rulers, it has its own problems and limitations. After the charge sheet is filed, investigation is supposed to be completed and prosecution begins before the trial court. Now, after the Supreme Court monitored and certified the charge sheet, will case go to a trial court, and what role is the trial court expected to play? Can they appreciate evidence independently? The case eventually comes back to the Supreme Court's ultimate appellate authority.

To avoid these difficulties, the investigating agencies should be supervised only by the Executive but under a changed law. As long as there is no law to compel ministers facing allegations to step down, this so-called autonomy is just an illusion. The charged ministers will wield their political power to dilute investigation. When the Prime Minister and other ministers stand by their corrupt colleagues and dare to alter the report of the CBI, how does autonomy work?

When the Supreme Court is supervising the investigation, it is performing the job of the Executive in one way and of the magistrate in another way. Though it was inevitable to check the personal interests of political rulers, it has its own problems and limitations

(The writer is Professor & Coordinator, Center for Media Law & Public Policy, NALSAR University of Law, Hyderabad)