HOW TO FREE CAGED PARROT The CBI

By; S Farman Ahmad Naqvi, Advocate, High court, Allahabad.

naqviandnaqvi.com, naqvifarman@yahoo.com CBI chief Ranjit Sinha accepted the Supreme Court's observation that the country's premier investigating agency was a "caged parrot" that "speaks in its master's voice". Over the last few years the CBI (Central Bureau of Investigation) became an infamous name. Where there is corruption, political or otherwise, this name crops up and then comes the blame, in handy, that the Central Govt. is misusing the agency either to frame someone or to shield someone of its own. One of the latest controversies is relating to Coal scam in which a very piquant situation reached in Supreme Court. Serious allegations continue to surface against the United Progressive Alliance (UPA) government on its attempt to interfere with the CBI status report on the coal scam, with the latest salvo fired by Additional Solicitor General Harin Raval who has accused the Attorney General GE Vahanvati, in a letter, of trying to meddle in the coal scam as well as other investigations by the Central Bureau of Investigation (CBI). Under fire from the Supreme Court over showing the CBIs preliminary investigation report to the Law Minister and two other bureaucrats, CBI director Ranjit Sinha has claimed no substantive changes were made to it by the political executive. Sinha, who has been alternately praised and criticized for his affidavit in the apex court, has maintained that he was summoned by the Law Minister to see the report on 5 March. CBI Director Ranjit Sinha maintained that the agency is not an autonomous organisation and that he had not shown it (report) to any
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outsider but to the Law Minister of the country. I am a part of the government. I am not an autonomous body. I have not shown it to any outside person. I have shown it to the Law Minister of the country. I will inform the Supreme Court about any situation arising out of that. The decision of Supreme Court will be acceptable. The simple analogy which came out from Sinhas clarification is that the CBI is working under the Central Govt. as one of numerous departments hence showing of the status report to Law Minister of the Country is not an illegal act on its part. Hence in this backdrop the demands are growing that the Govt. is trying to hide correct facts from public and is also interfering in investigation of not only coal scam but other such big scams. Now it is necessary to throw some light over the CBI, how it came into existence and how it works. The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India. The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Deptt. of India during World War II. Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt. The Delhi Special Police Establishment Act was therefore brought into force in 1946. The CBI's power to investigate cases is derived from this Act. This is an Act to make provision for the constitution of a special police force (in Delhi for the investigation of certain offences now extending in the Union Territories also, for the superintendence and administration of the said force and for the extension to other of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. As the CBI is working under The Delhi Special Police Establishment Act whereby section 4 provides as follows;

4. Superintendence and administration of special police establishment. (1) The superintendence of the Delhi Special Police Establishment shall vest in the Central Government. . . . . . . . . Interestingly CBI is working with inadequate staff and professional hands, which recurrently creates delays in finalizing investigations. As many as 831 posts at different levels were lying vacant in the CBI, according to a data updated till December 31, 2012. The total sanctioned strength of CBI is 6,586. The vacancies existed in the ranks of special or additional director, joint director, and deputy inspector general of police, superintendent of police, additional superintendent of police, deputy superintendent of police, inspector, sub- inspector, assistant sub-inspector and head constable. The posts of 54 Law Officers and 94 Technical Officers at various levels were also lying vacant. At the time when the government is accused of interfering in the CBI's functioning by virtue of its administrative control over the agency, it is suggested that either enactment of a separate law or amendment in the existing archaic Delhi Special Police Establishment Act to give CBI a statutory backing". The Delhi Special Police Establishment (DSPE) Act, governing the CBI, is to my mind "grossly inadequate", and hence either make changes in it or enact a new law. The question is how this could be achieved? Is there any mode and mechanism available in the Constitution to make an independent organization? Reply is yes, and the answer lies in article 246 of Constitution of India which gives powers to the Parliament and State legislature to enact laws upon the subjects enumerated in the schedule. Its heading suggests that it relates to subject-matter of laws made by Parliament and by the Legislatures of States. The article says that the Parliament has exclusive power to make laws with respect to any of the matters enumerated in list one in the seventh schedule which is commonly known as Union List. The Union list of seventh schedule of Constitution of India includes various heads but some of the important issues upon which the Parliament
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is authorized to make laws include Defence of India and, Naval, military and air forces; Arms, firearms, ammunition and explosives. Atomic energy and mineral resources necessary for its production. Industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war. Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; Foreign affairs; all matters which bring the Union into relation with any foreign country. Diplomatic, consular and trade representation. United Nations Organisation and Railways, etc. etc. In this list item no. 8 is about creation of Central Bureau of Intelligence and Investigation. In view of this provision the Parliament can frame law to create such agency. Thus the Parliament by legislation shall create Central Bureau of Intelligence and Investigation as per entry 8 of the Union List of schedule 7 of the Constitution of India as per article 246. As the same had not been given consideration till now and all successive governments and for obvious reasons they relied upon CBI, it can now be given birth to as it is still not too late. One may misinterpret that agency named as NIA, which came into existence in 2008, and the Central Bureau of Intelligence and Investigation are the same. The fact is that NIA was formed after Mumbai attack which only covers terrorism related cases and not beyond that. The Central Bureau of Intelligence and Investigation when comes into existence will cover all types of cases directly under the control of Parliament and not under the Central govt. It is also surprising that nobody, in the government or the opposition, is looking towards this aspect or calculatingly not looking towards it. Although there is huge hulla bulla for freeing CBI from the clutches of Central Govt.