What’s really going on at the CBI

Ashish Khetan

Two stories involving the CBI are playing out right now.

In one, the CBI (actually the Supreme Court and the agitated public) is being promised that it will have autonomy henceforth. In the second, the CBI is being told firmly by the Home Ministry that it cannot arrest an intelligence official whom it suspects of being involved in cold-blooded murders.

That these two stories are unfolding simultaneously without an uproar is an indication that perhaps the public isn’t quite agitated enough.

In May, the Supreme Court had caustically directed the government to liberate the ‘caged parrot’ that prides itself as India’s premier investigating agency. The court had good reason to be caustic. It had been monitoring the CBI’s probe into the coal-allocation scam, and had discovered that then-Law Minister Ashwani Kumar had vetted the CBI’s status report before it was submitted to the court. The apex court’s acerbic strictures resulted in the UPA government filing, on June 3, a 41-page affidavit promising the agency autonomy – or at least, relative autonomy.

The affidavit is a step in the right direction, but only a very small step. A good part of the proposal is devoted to the appointment of the CBI director. It is certainly a relief to know that those police officers whose careers have been built serving influential political families or ideological causes of nationalist parties cannot henceforth be brought in as CBI directors. In times past, such partisan directors would be brought in to get the high and mighty out of trouble, as was the case during Bofors, and then habilitated in various Raj Bhavans post-retirement.

The simple fact that going forward the Prime Minister, the leader of the principal opposition party, and the Chief Justice of India will all be party to the appointment of the CBI director that bias and blatant bargaining will not govern the appointment of the head of India’s main investigating agency.

While good, this merely scratches the itch. There is little value in having an independently appointed CBI director when every officer under him/her will continue to battle government interference in every aspect of their professional lives: recruitment, posting, transfer, promotion, disciplinary action and cadre control.
An independent CBI director is a fine thing, but a DIG or IG in the CBI is sometimes as significant as the director, for they are the ones who closely supervise or conduct investigations. For a truly autonomous CBI, we would need to put into practice the clear structural reforms suggested by the Supreme Court in the Prakash Singh case in 2006.

On that occasion, the court recommended that the investigating wing of police forces should be free of government influence, and the police as such should be controlled by an independent body comprising of representatives from important sections of society. This independent body would need to be drawn from civil society, eminent jurists (though I’m inclined to agree with Arun Jaitley that there are judges and there are judges) and perhaps even a small minority of members of the government, and the body thus constituted should have the right and the mandate to supervise the CBI and free it from government influence.

As on date, the CBI and the various state police forces are crippled by constant interference. Free and fair investigations are a joke, as we have witnessed over and over again. We have seen in Gujarat, in Chhattisgarh, in Karnataka and in Madhya Pradesh that the police cannot prosecute cases against anyone with Hindutva connections. In Madhya Pradesh, the government refused to let the police act independently in terror cases involving members of the Hindutva brigade.

The CBI is also crippled because, unlike in many other nations, it combines within itself the functions of investigating and prosecuting. In case after case, we have seen the investigating arm of the CBI being thwarted by the prosecuting arm.

For instance in the 2G case, the prosecuting arm of the CBI told the investigating officials that there is not enough evidence to press charges of corruption against the Ruias, the promoters of the Essar group. In the Airtel excess spectrum case, the investigating officials were told there is not enough evidence against the Mittals and that they could only prosecute the company – what is essentially a legal fiction.

Those are just two of countless instances where the officers have not been allowed to prosecute the actual beneficiaries of a criminal action – for instance, Anil Ambani and his wife in the 2G spectrum scam and Gandhi family loyalist Satish Sharma in the petrol pump allotment scam. And this is the problem with the affidavit the UPA government filed in court yesterday – it fails to address the crucial issues of administrative and financial autonomy and the need for an independent prosecution wing for the CBI, though it pretends to take some steps in this direction.

So yes, it is good that the CBI director will be picked through a credible selection process -- but who will liberate the rest of the force? And just as importantly, who will insulate the force from a malicious, malleable director?

The CBI’s lack of true autonomy is why we see the second of the two stories mentioned at the outset playing out the way it is.

First, the CBI announces its intention to chargesheet Rajinder Kumar, Special Director Intelligence Bureau (IB), for first facilitating and then covering up staged encounter killings in the Ishrat Jahan case.

Then. Kumar’s boss and the director of the IB, Syed Asif Ibrahim, unselfconsciously and openly -- not in the shadows that spies operate -- strikes back. He teams up with the Home Secretary and the National Security Advisor and lobbies with the Prime Minister’s Office demanding that the CBI back off. The IB director meets the Home Minister and stays in touch with the PMO almost on a daily basis, and hence, perhaps, feels he is entitled to privileges that ordinary mortals cannot dream of.

Certainly, what follows justifies his sense of aukaat. The PM’s office does not reprimand Ibrahim or ask him to back off from an investigation being conducted by the CBI under the supervision of the Gujarat High Court. The PM’s office doesn’t tell him to stop mixing individual criminal action with institutional integrity. Instead, the Home Ministry tells the CBI, on a daily basis, that they cannot prosecute Rajinder Kumar without sanction from the Home Ministry itself – sanction that, clearly, neither the ministry nor the PMO has any intention of giving.

In effect, this says that the legal yardstick for determining guilt is different for the Gujarat police and for IB officers. The Congress party itself has carefully left the discussion of the case to its Gujarat state members, so that the national leaders are not seen to be crossing swords with patriotic state agencies.

This is clearly not a happy situation at all. In the last few weeks, I’ve seen unprecedented levels of lobbying for Rajinder Kumar. In television studios I’ve encountered scores of serving and retired officers who have materialised to defend the honour of Rajinder Kumar; to convince whoever is listening that Kumar is honest, capable and dedicated. These officials have sought to drum home the notion that the IB merely gathers intelligence and does not engender information to cover up for the Gujarat police, and that Kumar was not a pivotal player in the Ishrat Jahan conspiracy.

Thus, on the same day that we hear the CBI will have some autonomy, we also hear that Rajinder Kumar will not figure in the first chargesheet in the Ishrat Jahan case.
To what extent was Rajinder Kumar involved in Ishrat’s case? What was his role in other similarly hideous staged killings of the members of the minority community? To what extent was he mixed up with the BJP government and its carefully crafted agenda of building Narendra Modi as a saviour of Hindutva pride and slayer of Islamist terrorists? Perhaps we will never know the truth.

Connect the dots, and what emerges is this: Rajinder Kumar did what he did while posted in Gujarat in 2004, when the BJP was in power both at the Centre and in the state. Like most observers, he too probably expected the NDA to return to power. And like many other officers, he too leaned in the direction of the favourable wind.

To do otherwise  -- to have been able to do otherwise -- would require autonomy.

Ashish Khetan is an award-winning journalist and founder of Gulail.com, a news portal specialising in investigative journalism.

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