The clamour for CBI reform should focus on accountablility first, not autonomy. With the cries for CBI autonomy becoming shriller and the Supreme Court joining the chorus, the investigation agency has sensed a unique opportunity of transitioning from being an institution that would occasionally help political masters in their dubious political ends to becoming a self-propelled behemoth of coercive harassment and extortion. The transition enables it to be an ‘autonomous’ player in power politics and command its own price in political power markets.
The recent FIR against former coal secretary PC Parakh and Aditya Birla Group chairman Kumar Mangalam Birla is a masterstroke towards asserting the claim to autonomy in the perverse use of power.
The move achieves several ends. First, it establishes the CBI’s credentials in not being afraid of targeting seemingly powerful and well-placed persons. It is a classic image-making stratagem.
Second, focussing public attention on the exalted status of the suspects rather than on any actual wrongdoing deflects attention from the more shadowy deals that form the bulk of the dubious coal allocations — exposing those deals would require forensic skills far beyond the competence of ham-handed CBI sleuths; deals that may render many of its political masters more vulnerable by exposing the real villains.
Because, after all, the charge of a criminal conspiracy to bestow “undue” favours in the Hindalco case wears thin when it is known that there was no quid pro quo and that the decision to allocate the Talabira mines, superseding the Screening Committee’s recommendations, was arrived at after taking into account the arguments against Hindalco’s claim.
No law was circumvented, nor were processes deliberately manipulated. Hindalco argued and pressed its claim, which it thought to be legitimate and justified; the Odisha government supported the claim; the PMO felt that it merited consideration. On consideration of all these factors and after giving a hearing to the claimants, Parakh recommended that the Screening Committee’s recommendations against the allocation be overruled. His decision was approved by the competent authority.
So, choosing a case as straightforward as this, in which only a convoluted mind will find even a scintilla of suspicious criminal conduct, is actually a masterly manoeuvre of deception to conceal the real wrongdoers.
Third, it provides a perfect cover for lazy investigations that can be prolonged indefinitely and thereby keep alive rent-seeking opportunities for decades to be availed of whenever convenient.
Fourth, by choosing a weak case, which is guaranteed not to withstand objective judicial scrutiny but that may take years to come to a conclusion, the CBI can successfully buy time to enable the real wrongdoers to plan their escape.
Fifth, it enables the CBI to hedge its political bets in a way that the agency can quickly change course to align itself with the winning side in 2014 and embarrass Prime Minister Manmohan Singh should fortunes change.
Sixth, it deliberately chooses soft targets who, unless they are driven to the wall, will think countless times before they retaliate, because they would much rather allow better sense to prevail and let the case die a quiet death rather than fight a noisy court battle and risk more adverse publicity and consequent loss of goodwill.
Seventh, it ensures that any attempts to make the CBI more accountable are nipped in the bud.
Lastly, by continuously adding new high-profile cases to its portfolio, the CBI successfully diverts attention from its dismal track record in all previous ones.
We seem to have a genius for defining a problem incorrectly and then finding solutions that not merely exacerbate the problem but give rise to a host of new, much worse, problems. The misuse of the CBI as a political tool is said to be the main problem. But is it?
The number of cases where the government may have an overweening political interest is limited. Cases against Mayawati, Mulayam or Jayalalithaa are exceptional and constitute less than 1 percent of its total portfolio. While these cases may sometimes be initiated at the instance of a party in power, they are not intended to be pursued with any seriousness and investigations continue indefinitely through several regimes.
The value of such cases lies primarily in the leverage they provide to the CBI director with different political actors. The CBI initiates many such cases on its own. For example, take the matter relating to former railway minister Pawan Bansal and the alleged pay-offs to the minister’s nephew and members of his personal staff. The pay-offs were in return for assuring the Railway Board director’s job to a general manager who had been liberal in contracts given out to companies said to be close to Bansal’s nephew. The CBI had been keeping the minister’s personal staff under secret surveillance and the entire sleazy drama emerged out of that exercise.
Surely, it was not the government that had ordered the surveillance? Has anyone wondered why the CBI was keeping tabs on a minister known to be close to the PM? And why was the affair turned into a full-blown scandal through selective leaks to the media with Bansal having had to resign, thereby giving the CBI an unprecedented handle with which to assert its own power?
And before the matter could go out of hand, the CBI was quick to absolve Bansal of any wrongdoing, knowing well that it has sufficient ammunition that can be brought out whenever it is politically expedient to do so.
The point is that politically important cases are taken up and kept on the boil or put on the slow burner (depending on which way the wind is blowing) not for the purpose of nailing the offenders but for exercising political leverage. The CBI is a crucial partner in the exercise of political power, not an agent or instrument of those in power.
No amount of control and influence a political executive wields over the CBI can make up for abysmal investigative incompetence, which is almost always the real problem. Take the Bofors investigation, for example, which I had the opportunity to observe at close quarters. In the first two years, the CBI had a completely free hand with unprecedented political and public support. Some of the best legal and administrative minds (NN Vohra in the defence ministry, Bhure Lal in the PMO and Arun Jaitley) were available to it. The Hindu’s Chitra Subramaniam had already done outstanding investigatory work and the painstaking evidence gathered by the Swedish Audit Bureau was available to it on a platter.
On surface at least, political interest demanded swift prosecution. Yet, even the initial FIR filed in the court was thrown out on account of its shoddiness and had to be substantially revised to allow investigations to commence. Three years down the line, when the heat on Ottavio Quattrocchi became intense as a result of the money trails unearthed by the Swiss prosecutors, the CBI ensured that Quattrocchi’s name was not even listed in the FIR, making it impossible to even question him. Surely, it was neither lack of autonomy nor the interference of the political executive that led to the appalling hash the CBI made of that case.
Autonomy is the space that an institution creates for itself for its own freedom of action unconstrained by any external agency. Unlike, say the IB, the CBI occupies a unique space where there are no rivals. The minister in charge performs only routine administrative coordination functions and has no role to play in the CBI probes. The director does not report to him nor has he to bother about an annual performance appraisal. He has more or less a guaranteed tenure, which has never been abridged.
The coercive powers that the agency enjoys are enormous, with ready access to any document, information or resource. It is networked with international agencies with access to privileged information of the kind that no one else in the country has. Never short of funds, the CBI can put wiretaps, bring people under surveillance or conduct tests with complete impunity. Third-degree methods of interrogation are common as they do not attract the kind of public disapproval they would in civilised societies.
Is this then a “caged parrot”?
The fact is that there is nothing in the objective circumstances that constrains the CBI. It is entirely up to the director to be as independent, fearless and unapproachable as he wishes to be; to refuse to be misused; to persist with an investigation if he wishes to and to abandon one if he finds it ill-motivated. Being pliable or not is his choice.
The problem is not a lack, but excess of autonomy, which is misused for a variety of extortionist pursuits. The overwhelming proportion of the CBI’s portfolio consists of petty bribery cases, cases of trivial, administrative misdemeanour, minor procedural transgressions and bona fide mistakes made in the decision-making process by honest officers, or policy decisions that got soured by subsequent developments beyond the control of the decision-maker(s).
These cases, mostly based on motivated complaints or references inspired by those wishing to settle scores, are the CBI’s real bread and butter business. Most involve soft targets, particularly civil servants with no political godfathers. (I suffered the destruction of my civil service career on account of an FIR against me in respect of a high-risk, top-secret defence transaction, approved by the highest administrative and political authorities in which the CBI, after seven years of investigation, found lack of due diligence on my part in drafting the contract.)
Such references allow the CBI to start a fishing expedition so that if it casts a net wide enough, it will catch the small fry. If an official reference is not forthcoming, an anonymous complaint will be converted into a ‘source report’ to initiate the inquiry. The more honest a person, the greater his vulnerability to such fishing exercises. The dishonest, on the other hand, invariably have powerful political protection and are rarely touched (unless they fall out of political favour).
It is natural to ask why the CBI should so easily lend itself to political misuse if it has so much autonomy? The fact is that Indian politics revolves around rent-seeking through the exercise of State power, especially its coercive power. This requires complicity between political masters and the police. Police officers work in an environment where cosying up to those in power is the norm. For any officer to climb to the top requires him to learn this art early on in his career.
This relationship, where both the politician and the police officer mutually align their interests, is far more direct than in the case of politicians and civil administrators. Police officers who have not in some manner or the other cultivated useful political links are extremely rare The CBI director is a plum post and a just reward for a policeman who has managed to reach the top through his political links and his vows of loyalty to the regime in power. Subservience to the dictates of the political masters is as natural to him as breathing — otherwise he would not be there.
As long as the CBI occupies a position in the architecture of State power that allows it to wield arbitrary power without any responsibility and accountability, and as long it is manned only by policemen, it will remain primarily an instrument of harassment, coercion and extortion (if not in money, then in terms of power). The institution will invariably align itself with the politically powerful. More autonomy will make it even more wilful and arbitrary in the exercise of such power.
The most important aspect of CBI reform is not its insulation from legitimate political authority but ensuring its accountability to institutions of democracy, through parliamentary committees for providing non-partisan oversight and supervision. We need to increase democratic control over the CBI, not lessen it. Equally important is a complete change of personnel to bring in people not just from conventional police forces but from a wide variety of professions — law, forensic sciences, information technology, finance, business management and human and behavioural sciences.
Of course, the bigger issue is to shift the public focus from baying for the blood of the corrupt to carrying out systemic reforms to prevent corruption. However effective, investigation, prosecution, trial and conviction have a limited impact on corrupt practices and behaviour. It deters the honest, paralyses decision-making and motivates the corrupt to find new ways to seek rent.
But then, systemic change and genuine administrative reform have neither a constituency that will vote for it nor a television news channel that will champion it.
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