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Content

• Background
• Key Functions/Vision of CBI
• Amended in the Delhi Special Police Establishment Act (1946)
• Issue of General Consent to CBI

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Background:

Special Police Establishment (SPE)

• The CBI owes its origins to an executive order passed by the British government in the early stages of World War II (1941) to look into vigilance cases by establishing Special Police Establishment (SPE) in the Department of War. This body was mandated to look into cases of bribery and corruption in War and Supply department and later Railways (1942).
  • Delhi Special Police Establishment Act, 1946 expanded the function of SPE to cover all departments.
• Central Bureau of Investigation (CBI) was set up in 1963 by a resolution of the Ministry of Home Affairs on recommendations of the Santhanam Committee on Prevention of Corruption (1962- 64). The Special Police Establishment set up in 1941 was also merged with the CBI.
• It was later transferred to Ministry of Personnel. Currently it comes under administrative control of the DoPT of the Ministry of Personnel.
• It is not a statutory body and derives its powers from the Delhi Special Police Establishment Act, 1946.

Which cases can be investigated by CBI?

• Matters pertaining to central government.
• Matters pertaining to state government if requested by state government concerned or directed by the high court or Supreme Court.

Key Functions/Vision of CBI: CBI’s function can be divided into two broad categories:

• Investigating Agency: CBI is the premiere investigation agency in the country and investigates grievous cases (Corruption, economic and violent crimes; cyber and high tech crime; national and transnational organized crime)
• Leadership and Direction: CBI provides leadership and direction to police forces across the country.
• Other Functions
  • Assistance to CVC and Lokpal in investigating corruption cases.
  • CBI is the country’s unit for the international police organization.

Declining Credibility of CBI: In its initial years the organization was widely respected on account of high caliber and integrity of its directors like DP Kohli, FV Arul and others backed by the high degree of professionalism of its investigating officers and inbuilt multi-layered decision making procedure and strict internal vigilance mechanism. But, over the years CBI has been losing its credibility. In fact in 2013, the Supreme Court called it a “Caged Parrot”. The main factors responsible for poor functioning of CBI have been:

A. Political Interference both in selection of personnel and day-to-day governance.

B. Dependency on government to initiate a case:

• For e.g., to prosecute MLAs, State Ministers, or MP, the CBI has to take sanctions from the Speaker of the state assembly (in case of MLAs) and the Governor of the State (in case of ministers). In case of Member of Parliament (MP), the sanction is sought from the Speaker of Lok Sabha or the Vice Chairperson of Rajya Sabha. Since all these sanctioning authorities have links to the ruling dispensation, the opposition parties feel that they are unfairly targeted.

C. Dependence on other ministries

• CBI is dependent on home Ministry for staffing and law ministry for lawyers and lacks functional autonomy in certain cases.
• Administrative and financial control rests with the Ministry of Personnel

D. Run by IPS officers on deputation:

• CBI mostly consists of IPS officers on deputation and since these officers depend on government for future postings, they can be manipulated by government.

E. The DPSE Act was amended in 2021 to increase the term of Service of CBI director to five years. But there is a caveat that after completion of the Supreme Court mandated 2 year term, the Director would get extension of tenure each year at the pleasure of the Government. This is also
seen by many as dangling a carrot before the Director.

• Carrot of post-retirement jobs is also something which is hampering independence of CBI. For e.g. former CBI director Ashwini Kumar, was appointed governor of Nagaland by UPA in 2013.

F. Further, the work of CBI has also been impacted by various states have withdrawn general
consent to CBI.

Steps taken to ensure Independence of CBI

• Steps taken by Supreme Court in Vineet Narain vs Union of India, 1997
  • CBI director shall be appointed on the recommendation of a committee comprising of CVC, VCs, secretary (home) and secretary (personnel).
  • Director shall have a minimum tenure of 2 years.

The Lokpal and Lokayukta Act (2013) amended the Delhi Special Police Establishment Act (1946) and made following changes with respect to CBI:

• Improving the appointment Process of Director.
• The act provides that director of the DSPE will be appointed by a Selection Panel comprising of the Prime Minister, the Leader of Opposition in LS(Leader of the largest opposition party – 2014 amendment DSPE Act), and Chief Justice of India (or a judge nominated by him).
• Earlier, the director was appointed by a committee full of government functionaries.
• Security of Tenure for director of 2 years was given statutory backing
• Selection of officers of the Rank of SP and above in CBI will be done by central government on the recommendation of the a committee (with CVC as chairperson, the Vigilance Commissioners, the Secretary of Home Affairs and the Secretary of DoPT)
• Lokpal will have power of superintendence over CBI with respect to cases referred by it
  to CBI.
• CBI officers investigating the cases referred by Lokpal can’t be transferred without Lokpal’s approval.
• Establishment of Directorate of Prosecution with CBI to be headed by Director who is an officer not below the rank of joint secretary for conduction of prosecution of cases under Lokpal.

Way forward/Steps that needs to be taken

i. A new CBI Act: The foremost reform would be to ensure that CBI is run under a formal, modern legal framework that has been written for a contemporary investigating agency. The new CBI act should ensure autonomy and improve the quality of supervision.

• This is not a new demand. LP Singh committee in 1978 and 2nd ARC in 2007 also
  suggested this new law.

ii. CBI should be made independent of government and thus political interference.

• Making CBI accountable directly to parliament can be a possibility.
  • A more efficient parliamentary oversight over the federal criminal and intelligence agencies could be a way forward to ensure better accountability, despite concerns regarding the political misuse of the oversight.
• Political neutral selection procedure
  • For e.g. the director of CBI could be appointed by a committee consisting of CJI, the chairman of UPSC and other judge nominated by CJI.
• Extending the tenure of director from 2 years to 3-5 years will also go a long way forward in ensuring CBI’s autonomy.
• Make director in-eligible for any post under GoI or government of any state.
• Dedicated Cadre of Officers
  • CBI should develop its own dedicated cadre of officers rather than depending on officers on deputation. This is international best practice and will ensure independence in the working of the body.

iii. A governing board consisting of PM, Home Minister and 4-5 chief ministers should be created
to keep a watch on the working of CBI.

• This will instil a sense of confidence within states, and help in building consensus for a central law for CBI.

iv. Bifurcating CBI into anti-corruption body and National Crime Bureau

• The NCB should be responsible for matters relating to criminal offence which has national or international ramifications
• This specialization will help in better functioning of both the sub-sections.

v. Lay down Specific Charter for CBI

• The work of CBI should be judged with reference to these charters

vi. Bring CBI under RTI

• It may be stipulated that no-information on any case currently being investigated will be made available, but that all information pertaining to cases which were withdrawn, or cases which were closed, or were dismissed by the court would be made available to people.
• Such social audit will go a long way in making CBI more accountable.

Conclusion

• The frequent controversies surrounding CBI have not just ruined the image and credibility of the premiere investigating agency, but India’s image as a country committed to rule of law is at stake.
• It’s high time that government takes the above suggested steps to make CBI a truly independent, efficient and impartial investigating agency which is capable of dealing with various threats our country faces internally as well as externally.

Issue of General Consent to CBI 

Understanding General Consent:

• The CBI is governed by the Delhi Special Police Establishment Act (DPSEA). This law makes CBI a special wing of Delhi Police and thus its original jurisdiction is limited to the territory of Delhi.

How does CBI operate in cases outside Delhi?

• Section 5 and Section 6 of the DPSE:
  • Section 5 of the Delhi Special Police Establishment Act (DPSE) enables the Central government to extend the powers and jurisdiction of members of the DSPE beyond the Union Territories to a state. But the same is not permissible unless a state grants its consent for such extension within the area of state concerned under Section 6 of the DSPE Act.
• The CBI Manual says, “The central government can authorize CBI to investigate such a crime in a state but only with the consent of the concerned state government.
  • Note: The Supreme Court and High Courts, however, can order CBI to investigate such a crime anywhere in the country without the consent of the state”.
• Supreme Court in Nov 2020 clarified that state government’s consent is mandatory for a CBI investigation in its jurisdiction and agency cannot conduct probe without a nod.
  • The apex court had referred to Section 5 and Section 6 of the Delhi Special Police Establishment (DSPE) Act.

Types of Consent for CBI: General and Specific

• When a state gives general consent to the CBI for probing a case, the agency doesn’t need to seek a fresh consent every time it enters that state in connection with investigation for every case.
• But, if a general consent is not there (or if a general consent is withdrawn) CBI needs to seek a case wise consent for investigation from the concerned state government. This case wise consent is called specific consent. If this specific consent is not granted, the CBI officials will not have the power of police personnel when they enter the state.

Does withdrawal of general consent stop all CBI cases?

• No. The CBI continues to probe old cases (unless specifically taken away by the state government) and cases allocated to it by a court order.

Way Forward:

• Reforming CBI to make it more autonomous.
• Cooperative and Collaborative Federalism 

Example Questions

• “The absence of institutional autonomy has turned CBI from a premiere investigating agency to a ‘caged parrot'” Discuss. In this light elaborate on the key steps required to ensure proper functioning of CBI. [15 marks, 250 words]
• Discuss the key changes that Lokpal and Lokayukta Act, 2013, brought in the Delhi Special Police Establishment Act, 1946. Have these changes ensured the effectiveness and autonomy of CBI? Give reasons. [15 marks, 250 words]
• It is imperative in a democracy that every organization of the government must draw its powers, privileges and authority from clearly defined legal statutes. In this light discuss the powers and functions of Central Bureau of Investigation. Suggest some measures to reduce political interference in the working of the CBI. [15 marks, 250 words]