CBI carries out searches at Jain’s OSD’s office
In what could be called a troubled year ender for Delhi government, the Central Bureau of Investigation (CBI) on Friday…
It is no surprise that it has happened now, in full public gaze. It is a surprise that it had not happened earlier, even though the “premier” police investigation agency of India, the CBI has been on the prowl for as long as it has. Virtually without any check or control, the agency has been hounding senior civil servants, in the name of “removing corruption”.
The incident would shame any civilized government, not to talk of the Government that prides itself on the claim of being the world’s largest democracy. It also prides itself, rightly so in having the democratic world’s finest written Constitution, with the most elaborate recital of fundamental freedoms and rights. We have ‘heavily’ borrowed these concepts, and incorporated them in our Constitution from the various established democracies the world over and their rich experience – US, UK, Ireland, Canada etc.
The chilling facts first. A very senior civilian of the Union Government was suspected of corruption and was arrested by the CBI in Delhi. He was so hounded by the “premier” police agency of India that he was forced to commit suicide. Not only that. The harassment and worse, must have been so inhuman that his entire family also committed suicide, including his wife and teenaged children.
It is a new low, even by the standards of the Indian police. The family has left a suicide note identifying certain officials, including a DIG of mental torture. According to the Universal Human Rights Act, of which India is a signatory, all forms of torture, especially mental torture are banned. But it is not known if India’s stand in the UN has been ‘ratified’ by the CBI. It would be instructive for all if the CBI would come out with a public statement on the issue.
In law, a suicide note is a “dying declaration”, and a certain credibility is attached to it. This is the norm not only under Indian law but is universally applicable. It is said in legal literature that “Truth sits on the lips of a dying man.” The language of the note, and the details provided are prima facie evidence of considerable thought on the part of the deceased family before they took the ultimate step.
All credit must go to the CBI to publicly announce promptly – that an “internal probe” into the tragic incident has been ordered. For the uninitiated, the same needs to be translated into simple English. In plain words, the accused will be the investigator. The corruption cases may drag on for years and years in courts of law but in this case the investigation has been prompt. The CBI has a system of “rewards” but none is offered for the correct prediction of the results thereof.
The current rise to fame, or infamy, depending on the point of view, of the CBI cannot, of course, be entirely laid at its door. To recall a recent observation of a Bench of the Apex Court, it termed the agency a “caged tiger”. It must be said, with respect that the remark was entirely avoidable. The issue – of a police agency’s place in the overall structure of the Government – was not before the Hon’ble Court. ‘Nihil habet forum ex scena’ is a basic maxim of classic jurisprudence – ‘the court has nothing to do with what is not before it’.
The position of a directorate – CBI – in the architecture of the parliamentary form of Government is for the Executive to decide, in terms of the doctrine of ‘separation of powers’ as sanctified, ironically, by the Apex Court itself in the celebrated case of Keshvananda Bharati. It is now a part of the ‘basic structure’ of the Constitution. It cannot be violated by the Executive or the Parliament, not even by the Judiciary. The basic structure is immutable.
The chance remark by the Bench was seized upon by the then Director, CBI to further grab power in the name of “autonomy”. One of the extraordinary proposals he mooted was to place Public Prosecutors under the control of the Director, which was fortunately shot down by the Government of the day. The very fact that the proposal was mooted, betrays a shocking lack of basic knowledge of law. It is settled law that a public prosecutor, somewhat of a misnomer is ‘an officer of the court’, not a part of the prosecution.
Thanks to the expose by a public-spirited legal luminary, the nation stands warned. The entire high drama in the Apex Court by the CBI Counsel, at the behest of the then Director bemoaning the agency’s lack of “autonomy” was a disguised bid, as it unfolded, to grab more power, for personal aggrandizement. The then Director made good use of the autonomy already enjoyed by virtually opening a “shop” at his official residence. To revert to the issue of abuse of power by the CBI, the current case of the former Coal Secretary, who is incarcerated in the ‘coal scam’ under the Prevention of Corruption Act would be relevant in context. The misuse of authority cannot be understood unless one examines the basic position in law. Corruption has not been defined in law. It is a phenomenon which is loosely talked about in the 24×7 media, in the absence of things more ‘salacious’.
Independent India is fortunate in having inherited one of the finest Penal Codes in the democratic world. It contained a separate chapter on the subject of ‘offences by public servants’ which could be committed by public servants alone. It was the most comprehensive treatment of the subject in the democratic world. It covered bribery, misappropriation of property and extortion by public servants. In 1988, the Parliament in its wisdom enacted a new law – the Prevention of Corruption Act by defining a new offence – “criminal misconduct”.
Plain ‘misconduct’ is defined in the Government’s Conduct Rules, and can be punished with dismissal from service, after an inquiry. It also covers bribery and malfeasance, and the Government has full control. It is a departmental matter. The new Act did not define any new offence but introduced a new rule of evidence. The basic norm of jurisprudence was reversed – the accused public servant would have to prove his innocence if ‘tangible assets’ were found in his possession “disproportionate to his known sources of income”.
Thus, “criminal misconduct” was not a new offence in the accepted sense of the term, but a new rule of evidence. The prosecution would not have to prove the guilt of the accused public servant; instead, he would have to prove his innocence. The other change introduced was one of form, not substance – a minimum sentence was prescribed. Apart from it, there was no change in basic law. Consequently, offences of bribery and illegal gratification were deleted from the Penal Code and transplanted in the new Act.
The definition of the ‘public servant’ was broadened, and it now includes MPs, MLAs and Ministers. As the new offence of ‘criminal misconduct’ required specialized investigative skills and detailed procedures to establish the offence – detailed inventory of all assets – the responsibility was entrusted to the CBI. It will be recalled that the CBI is the successor to the erstwhile Delhi Special Police Establishment, 1946 which was set up as a special police force for all the Union Territories.
The CBI is a police ‘agency’ for investigation, which is its core competence. As a specialized directorate of the Department of Personnel, it has no other function or expertise. It is meant to assist the controlling Department to come to a prima facie conclusion about the truth, or otherwise of complaints investigated. The Secretary of the Department remains responsible for maintaining the discipline and integrity of its civilian personnel.
Somewhere down the line, the CBI assumed responsibility for “removing corruption’ in the Government and maintaining “integrity” in the public services. No doubt, it was emboldened in this by a direct interface with the judiciary. So much so that it has now assumed the mantle of a parallel government. It has started prosecuting public servants under its own authority. It has virtually bypassed the Government.
Basic modern jurisprudence designates the State as the prosecuting authority in an independent court of law. The police do not directly prosecute public servants, like other citizens except in a police state. The present state of affairs has virtually placed the civilians under police oversight. As a result, India is perhaps the only democracy in the world where, at least in theory, every executive decision can be challenged by the police.
‘Rex est legalis et opliticus’ – the King is both a legal and political person. It is a maxim of Roman jurisprudence, duly incorporated in modern India’s Criminal Code, except that the King has been replaced by the modern ‘State’ as represented by its President. And yet, one finds that even in the Apex Court, the prosecuting ‘agency’ is the CBI. Ironically, the ‘agency’ has broken free of the ‘principal’ and virtually disowned it.
One of the serious ramifications of the assumed autonomy of the police ‘agency’ is the regular, almost routine misuse of the relevant provision of the Corruption Act, the notorious Section 13(1)(d). To be fair to the legal draftsmen of the Government, there is nothing wrong with the Act, only its misuse by the CBI. The relevant section is torn out of context, and a ‘catch-all’ for senior civilians who have the occupational hazard of being decision makers.
A single section defines the offence of “criminal misconduct” – S 13, unlucky for senior civilians but lucky for a ‘chosen’ few – the police. The basic ingredient of the same punishes a public servant if he is caught with some tangible asset – a bribe, an unexplained “pecuniary advantage or a valuable thing” (found in his possession), or on his physical person. The law rightly assumes that it is an illegal gratification, unless the public servant can account for it.
The CBI, in any number of cases, including the ‘coal scam’ assume that the “pecuniary advantage” need not be “obtained” by the public servant for himself but for, say, even the allottees. Admittedly, in the present case, there is no evidence of any tangible asset or “valuable thing” obtained by the Coal Secretary for himself or any of his family members. Even prima facie, there is no evidence of “criminal misconduct”.
Assuming that the Secretary acted under political pressure, it can, at best, or at its worst be a case of “misconduct” not meriting a criminal case. In all such cases, the police have an in-built advantage. A civil servant has to take decisions right from the word go, as a sub-divisional magistrate implementing myriad laws on behalf of the state, several dozen at the last count.
Police, on the other hand, even those belonging to the IPS are a uni-functional service. A policeman’s main role and responsibility is that of investigation under a single statute – the Criminal Procedure Code. He has no other Constitutional role, or any executive authority under any law, unlike the civil service which is a multifunctional service. Besides, the latter are trained executive magistrates under the Criminal Code.
There is another manner in which the CBI often misuse their authority. It is often noticed that along with the charge of “criminal misconduct”, they slap the charge of “criminal conspiracy”. The latter is an offence which can be committed by two or more persons. To the uninitiated, a mention of conspiracy is, by itself scandalous. For the 24×7 media, nothing could be more ‘salacious’.
The departments though headed by the Secretary, work through the ‘committee system’. The Secretary does not have absolute authority. The police, under the law of the land investigate singly, and do not have to report to any authority or seek instructions from anyone. Hence, the police are largely innocent of the ‘committee system’ of departmental functioning. To hold the head of the department as the main conspirator is gross abuse of legal powers.
The law of conspiracy as incorporated in the Indian Penal Code is based largely on English law, according to which two or more persons are “said to combine to commit an illegal act”. When departmental multi-member committees meet regularly to decide various tenders and award various woks, they can hardly be said to “combine to commit illegal acts”, which alone is tantamount to “conspiracy”.
Assuming that the committee does decide wrongly, or even favours an undeserving party, the members of the committee can be said to have commited a misconduct, unless there is direct evidence of quid pro quo or bribery. The CBI, by twisting the law have virtually wiped out the distinction between ‘misconduct’ and ‘criminal misconduct’. This can only expedite the march to a police state. We are not there yet, but on the way In sum, what the Corruption law covers – serious cases of bribery and illegal gratification – has been twisted out of shape. Police oversight of executive decision-making will eventually emasculate the working of the entire Government.
By Ashok Kapur
(The writer, a retired IAS officer, is Member, International Academy of Law and Director-General,Institute of Directors.)
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