No, Minister! Not A Fair Deal

There is a proposal of the Law Ministry aiming to divest the CBI of its legal wing under the guise of creating an independent directorate of Prosecution, much like the British Crown Prosecutor. But is the CBI allowed to function independently to inspire confidence in the new directorate and should not the Law Ministry be focusing on other citizen friendly reforms rather than a step that gives it greater hold on the whole process?

by JOGINDER SINGH

The Law Ministry, has proposed to the Ministry of Personnel and Training (DoPT), the Government Department for the CBI, to set up another Department of Prosecution, independent of the Central Bureau of Investigation (CBI), for scrutiny, review and presentation of all cases of the CBI. This will mean divesting the present Prosecution set up of the CBI from it. The Law Ministry’s case is, that it wants to establish an Independent Directorate, with an independent budget, and its own cadre of lawyers.

At present, the CBI has its own separate prosecution wing, headed by the Director of Prosecution, who is a Joint Secretary-level officer, on deputation from the Law Ministry. Director of Prosecution is the highest legal functionary of the organisation. He also heads the prosecution cadre consisting of Public Prosecutors, Senior Public Prosecutors, Assistant, Deputy, and Additional Legal Advisors, who tender advice, on the strengths and weaknesses of cases investigated by the CBI, as well as, on the fitness, of any acquitted case, for being taken up to the higher Courts. Private Counsels are hired with the approval of the Law Ministry and Department of Personal for conducting cases in the High Courts and in Supreme Courts CBI has a sanctioned strength of 230 Law Officers, with nearly 30% vacancies. There are 32 Courts of Special Judges and 9 Magistrate Courts, functioning exclusively for trial of CBI cases in the country.

Once, I, as the head of the CBI was invited by the Union Public Service Commission to sit on the board for selecting Law Officers for it. For four vacancies, only three candidates appeared for the interview. Two of them were lawyers, almost without any briefs and one candidate, who could answer some questions was selected. A fact, which came out, clearly during the discussion after the interview, was that meager salary offered for the Government Prosecutors, attracted only those, who had little or no practice and hence very small income.

The Law Ministry’s case that it wants to establish an independent Directorate, sounds not only hollow, but also clumsy for the simple reason, that without conferring an independent status, like that of the Election Commission or of the Courts, how can there be, an independent department. In fact, nothing moves in the CBI, without the permission of the Government including whether an appeal should be filed in the Higher Courts or not, and how much private counsels should be paid, or who should go abroad for investigation, is not decided by the CBI, but by the Government. There have been a number of cases, including the JMM Bribery cases, wherein the lower court convicted the former Prime Minister, Narasimha Rao, and the High Court acquitted him. But the Government decided, not to go in appeal to the Supreme Court.

The devil can cite Scripture for his purpose. “An evil soul producing holy witness is like a villain with a smiling cheek,” said Shakespeare. But what is important is the purpose for which they are cited and whether it is good or diabolic. Law Ministry says that the creation of an independent Directorate of Prosecution modeled on the lines of the one in UK was one of the directions given to the Government by the Supreme Court in 1997 in the Vineet Narain case. What is being contemplated, in reality, is not an independent Directorate of Prosecution, but an attempt to totally weaken if not exactly slaughter the CBI. With Law Officers directly under the Law Ministry, it will be easy to bury any case the Government wants, on the advice of pliable officers. In fact all kinds of obstacles, are put on the working of the CBI, in the name of supervision and legal advice.

It will be of interest, to cite one case, amongst many. It is the same the law ministry, which was responsible for de-freezing Quattrocchi‘s accounts (Bofors Case) having over Rupees 24 Crores in London, in 2006-2007. In a bizarre and weird statement, the same department had claimed that the CBI has no evidence to prove Quattrocchi’s involvement in the Bofors kickbacks money in London. It sent an Additional Solicitor General of India, to tell the Crown Prosecutor in UK to do so, when a registered case is still pending against him in the Indian Courts. Even when he was detained, in 2007, on the basis of red corner notice, issued by Interpol, in Argentina, all the internal noting of the legal officers, in favour of Quotrochi, and against CBI stand were produced in the Argentinian Court. At the top, Law Ministry refused to pursue the case in the Supreme Court of that country. It is strange that instead of strengthening the Apex Anti Corruption Agency, of the Government, all out efforts are being made to enfeeble it. It is a misplaced priority. I can not even call it bona fide. If the Law Ministry is serious about improving the criminal justice system in the country, it should heed to what the present Chief Justice has said; “India has only 12,000 judges, 2,000 short of the sanctioned strength of 14,000. As a result, there are over 3.5 crore cases pending in the lower courts, 37 lakh in HCs and 46,000 in the SC.

“We need one judge for 500 cases to clear the backlog — that would mean 77,664 judges? .. As the governance is not good in this country, we suffer… Our system is encouraging litigation.” There have been reports of disposal of civil and criminal cases getting disposed off after twenty or twenty five years. These are the urgent citizen friendly matters, which need the attention of Law Ministry, rather than tinkering with the CBI. A US President James K. Polk, had said “There is more selfishness and less principle among members of Congress ... than I had any conception of, before I became President of the U.S.” Perhaps, it equally applies to our country, our governments and our politicians, in a large measure. Conceivably, in politics, an absurdity is not a handicap.

(The author is former Director, Central Bureau of Investigation)