TOPIC : WHETHER THE ALLEGATIONS OF THE MISUSE OF CENTRAL INVESTIGATIVE AGENCIES CAN BE TACKLED BY THEIR AUTONOMISATION?

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THE CONTEXT: There have been multiple allegations  against the Central Investigative Agencies from various quarters that  the Government of India is misusing them for political motives. One view is  that to prevent their misuse, more autonomy and independence should be provided to  these institutions. However, the Government claims that these institutions inherently have autonomy and independence as per their mandate. This article examines these issues in detail from the UPSC perspective.

AGENCIES IN THE NEWS

When any institution becomes a law unto itself, it becomes imperative to ensure that it is made answerable and accountable to society at large, and not just to the government. Over the years, disconcerting questions have arisen regarding the functioning of the Enforcement Directorate, Central Bureau of Investigation, and National Investigation Agency. For Instance- Recent questioning of AAM Aadmi Party leader- Manish Sisodia by the CBI. Thereby stating that this misuse is affecting the Federal structure of India, where the government in power infringes upon the rights of the state. The same is the case with ED and NIA. We will be analyzing the working of these three important agencies: CBI, ED, and the NIA which reflect the problems with other agencies as well.

MANDATE OF CBI, ED, AND NIA

CENTRAL BUREAU OF INVESTIGATION (CBI)

• It is the premier investigating police agency in India that functions under the superintendence of the Ministry of Personnel, Pension and Public Grievances, Government of India, which falls under the prime minister’s office.
• Thereby, CBI is not a statutory body but derives its power to investigate from the Delhi Special Police Establishment Act, of 1946.
• It handles cases like:

1. Anti-Corruption Crimes under the Prevention of Corruption Act of 1988.
2. Economic Crimes like fake Indian Currency Notes, Bank Frauds, Import Export, and Foreign Exchange violations.
3. Other cases-Special Crimes, Suo Moto Cases, etc.

ENFORCEMENT DIRECTORATE(ED)

• The Directorate of Enforcement is a multi-disciplinary organization mandated with an investigation of offenses of money laundering and violations of foreign exchange laws.
• The statutory functions of the Directorate include the enforcement of the following Acts:

1. 1. The Prevention of Money Laundering Act, 2002 (PMLA)
   2. The Fugitive Economic Offenders Act, 2018 (FEOA)
   3. The Foreign Exchange Management Act, 1999 (FEMA)

NATIONAL INVESTIGATION AGENCY(NIA)

• NIA is the Central Counter-Terrorism Law Enforcement Agency of India mandated to investigate all the offenses affecting the sovereignty, security, and integrity of India.
• The Central Government for the trial of Scheduled Offenses constitutes one or more Special Courts under Section 11 and 22 of the NIA Act 2008.
• The scheduled offenses under NIA include the Narcotic Drugs and Psychotropic Substances Act, Unlawful Activities (Prevention) Act, etc.

CONCERNS RELATED TO THE WORKING OF INVESTIGATION AGENCIES

When any institution becomes a law unto itself, it becomes imperative to ensure that it is made answerable and accountable to the society at large, and not just to the government. Over the years, disconcerting questions have arisen regarding the functioning of Investigation agencies-

1. NATIONAL INVESTIGATION AGENCY (NIA)

The recent amendment in NIA has empowered the agency to investigate offenses related to-

●  human trafficking

●  offenses related to counterfeit currency or banknotes

●  manufacture or sale of prohibited arms

●  Cyber-terrorism

●  offenses under the Explosive Substances Act, of 1908

Now the Central Government can ensure that offenses under these headings are no longer investigated by the respective state’s police but by the NIA, which is seen as larger encroachment on federalism.

    2. CENTRAL BUREAU OF INVESTIGATION

POLITICIZATION OF INSTITUTION

• A bench headed by Justice R M Lodha described the CBI as a “caged parrot speaking in its master’s voice”
• Repeated transfers of officers led to a change in the direction of the investigation.
• In 2019, then CJI Ranjan Gogoi questioned the role of the CBI in “politically sensitive” cases, and said that it reflected “a deep mismatch between institutional aspirations” and “governing politics”.

STRUCTURAL ISSUES-

• CBI has been stymied both by the legal structure within which it functions and by the changes made by governments in the rules governing it. For instance-
• To prosecute any MLA, state minister, or MP, the CBI needs sanction from the Speaker of the state Assembly (in case of MLAs) or the Governor (for state ministers). In the case of an MP, a sanction is sought from the Speaker of Lok Sabha or Vice Chairman of Rajya Sabha. Since all these sanctioning authorities have links to the ruling dispensation, Opposition parties feel they are unfairly targeted.

FACE OFF WITH STATE POLICE-

• CBI enjoys the concurrent powers of investigation and prosecution for offenses that sometimes lead to duplication and overlapping of cases with state police forces.

LOOPHOLES IN INVESTIGATION-

• According to the latest annual report of the Central Vigilance Commission, nearly 6700 cases probed by the CBI were pending in different courts, 275 cases of them pending more than 20 years.
• The federal agency is normally required to complete an investigation in a year.

DEPENDENCY ON OTHER INSTITUTIONS-

• CBI depends on the Ministry of Home Affairs for staffing since many of its investigators come from the Indian Police Service.
• It depends on the Ministry of law and justice for lawyers.
• It depends on the Ministry of Finance for financial needs.
• It depends on State governments for invoking their authority to investigate cases in a State.

POLITICAL TUG-OF-WAR

• The mandate of agency has been constrained by the increasingly hostile relations between the Centre and the state governments. As many as nine states have withdrawn general consent to the CBI as they allege that the CBI is being used by the Centre to target the Opposition.
• Withdrawal of consent means CBI cannot investigate even a central government employee stationed in a state without the consent of the state government.

    3. ENFORCEMENT DIRECTORATE

POLITICIZATION

• The ED is alleged to be targeting those political leaders who do not belong to the ruling party/parties at the Centre. Even the past cases of these leaders have been reopened in order to pressurise them either to change parties or to curb dissent.

VIOLATING FEDERAL PRINCIPLES

• The division of power under the Schedule 7 of the Constitution places the responsibility for police and public order in the State List. But the power of ED to investigate cases without the state’s consent, especially in ordinary crimes, is against federal principles.

VIOLATION OF RULE OF LAW

• ED can carry out the pre-trial attachment of property and funds just on basis of reasons to believe the investigative authority and not concrete facts. So even without an investigation is complete, a person can be charged, and the property can be attached just because a complaint/investigation exists against him.
• It effectively means that though a citizen is presumed not guilty, he is deprived of control over his property, when the prosecution believes that it comes from tainted money, effectively destroying lives, families, and businesses, just on the basis of the investigator’s reason to believe and not on evidence.

IS AUTONOMISATION THE ANSWER TO THE PROBLEMS OF THE CIAS?

• Dissent and criticism are welcome in a democracy even if they are not fair at times. But when the opposition does nothing else but oppose and criticize, then it tends to become counterproductive and points toward the bankruptcy of intelligentsia within the opposition ranks. The opposition invariably charges these institutions of being under government control and thereby not being fair or unbiased in their functioning.
• If these institutions have come under greater scrutiny in the last few years, it is because of the high-decibel and unbridled political rhetoric practiced by the opposition against the government.
• The fact that these institutions are organs of the government of the day is an axiomatic truth. No government department can ever be totally and unquestionably independent in its work. It has to be remembered that these departments come into action on orders of the government and therefore they will also have to report back to the government periodically.
• The government of the day does not just exercise control, it is also responsible to the nation for the working of these departments. Till about two decades ago, these departments were not in the public eye to the same extent as they are today. The excessive debate over their work today is a result of the overflow of true and false information through all kinds of media, the right of Right to Information, and the regular press briefings of the department itself. Thus, today these institutions are under greater public scrutiny in whatever they do.
• There are no two views on the fact that these institutions must be afforded maximum autonomy for the best results. The onus for that lies with the government of the day. It should only exercise administrative control that does not interfere with its professional functioning. The expertise of such institutions should not be wasted on frivolous cases that can easily be resolved by local police authorities.
• Political leadership’s decisions may be influenced by political considerations at times. This is part of a democracy and will have to be accepted as long as it is in good faith and not against the interests of the nation.

LESSONS TO BE LEARNED FROM ED

The Enforcement Directorate (ED) has a set of powers that the CBI or other investigative agencies don’t have, making it the feared agency. These powers are

1. Under PMLA which ED deals with, a statement recorded before an investigation officer (IO) is admissible in court as evidence.

• Statements to police are otherwise not admissible in court. Only statements recorded before a magistrate are admissible.

2. All offenses under PMLA are non-bailable.
3. Unlike CBI or state police forces, the ED does not have its own lock-ups, so there are no special cells with ED for VIPs in its custody. People in ED custody go to the lock-up of the nearest police station, irrespective of their status. This means that VIPs being chased by ED don’t have a shred of comfort when in custody.
4. The burden of proof is on the accused. Unlike regular criminal law, it is the accused, not the prosecutor, that has to furnish the proof under PMLA which ED deals with.

FEDERAL BUREAU OF INVESTIGATION(FBI), USA

The FBI is the lead investigating agency in the USA, which sets an example for the whole world as to maintain transparency and accountability.

THE WAY FORWARD

• A high-level governing board should be set up for the CBI in which, apart from the prime minister and union home minister, four-five chief ministers of states may be appointed, by turn, to give broad guidelines and keep a watch over the working of the CBI. This will instill a sense of confidence in the states and help in building consensus in favor of a Central law for the CBI.
• In the Vineet Narain case, 1997 The Supreme Court laid down guidelines to ensure the independence and autonomy of the CBI and ordered that the CBI be placed under the supervision of the Central Vigilance Commission (CVC), an independent governmental agency intended to be free from executive control or interference.
• A comprehensive new central law should govern the working of the institutions. The law should specifically provide for the appointment of a special public prosecutor who will have full independence to deal with politically and nationally sensitive cases and take a stand in safeguarding the public interest.
• The Central Investigative Agencies should be brought fully under the Right to Information law, with a stipulation that no information pertaining to any ongoing investigation can be made available, but that all information pertaining to cases that were withdrawn, cases that were closed, or were dismissed by the court would be made available to the people. Such a social audit will go a long way in making both these institutions fully accountable.
• The selection of the directors of Central Investigative Agencies these institutions should be made by a committee presided over by the prime minister and comprise the home minister, the Lok Sabha speaker, the Rajya Sabha chairman, judges of supreme court and Leader of opposition.

THE CONCLUSION: What is at stake is more than just the image and credibility of the CBI. India’s image as a country committed to the rule of law itself needs to be refurbished nationally and internationally. The Central government can send a powerful message by setting the ball rolling without the loss of any further time.

MAINS PRACTICE QUESTION

Q.1 ‘Whether the allegations of misuse of Central Investigative Agencies can be tackled by their Autonomisation?’ Discuss.

Q.2 Discuss the loopholes in the institutional structure of Central Investigative Agencies in India. Suggest reforms to bridge the loopholes.

Q.3 Enforcement Directorate has a set of powers that make it a feared agency. Discuss.