CBI and The Folly Of The Wise : A Reprise Item It Was Written A Couple Of Years Back
Italo Calvino’s memorable fable, Numbers in the Dark, contains some timeless observation on the folly of the wise. A conscientious accountant comes across an error – a small error committed long time back – by the legendary Annibale De Canis, “the master of bookkeeping,” in a giant Italian conglomerate.
“This infallible man” made a mistake, a stupid mistake of four hundred ten lire in an addition... Over all these years, you know that mistake of four hundred and ten lire has become Billions! Billions! The calculating machines and electronic brains and whatnot can grind out numbers they like. The mistake is right at the core, beneath and bigger than all their numbers, and it’s growing bigger and bigger. The company has grown big, huge, with thousands of shareholders, hundreds of subsidiaries, endless overseas agencies, and all of them grinding out nothing but wrong figures, there’s not a grain of truth in any of their accounts. Half the city is built on these mistakes. No, not half the city, what am I saying? Half the country. And the exports and imports? All wrong? All wrong, the whole world is distorted by this mistake in the life of Annibale De Canis, the master of bookkeeping, the giant of accountancy, the genius.”That’s the point, if genius, great leaders, founding fathers, statesmen err, their errors also are commensurate with their stature. The Congress has ruled the nation for the best part of seventy years and has indeed given us some wonderful institutions and memorable moments of governance but they ruled just long enough to fritter away not only the inheritance of their forebears but have also gone on to commit such a vast compendium of illegalities, immoralities, mal-governance and other evils that their non Congress successors can always cite instances of worse immorality for every immoral deed of their own, for a long, long time to come.
To quote just one trenchant example: when the Modi government was being pilloried for pestering the RBI someone cited the case of the harried south Indian governor of RBI who was forced to resign because of Nehru’s intransigence.
Congress also created some organisations which threaten to rock the very foundation of our democratic polity. I am thinking of CBI, spawned in 1963, for some noble purpose no doubt, but it has proved to be by far the greatest disruptor of our political process in the last several decades, and its activities – antics –are constitutive of the political history of our time. It has destabilised governments, helped oust popular leaders, shored up the sagging fortunes of those who should have been condemned to jail, destroyed dynasties and consigned many highly regarded public figures to the moral twilight between guilt and innocence, forever.
The remark of Supreme Court about the CBI being a caged parrot was not in the nature of a judicial pronouncement nor even an obiter dicta but it has acquired the finality of an axiom. The observation of the court is only half true. The CBI is an aberration, a bio mythological monster. It is not one bird but a combination of two: a parrot, a popular domestic pet and a vicious bird of prey, a hunting falcon that can be set upon those required to be hunted by those who exercise control over it. It can be recalled midway from flight. For those who control its career prospect, it chirps sweet nothings, but ask those whom it is set upon, how vicious can it be!
The division bench on Guwahati and Meghalaya High Court has in a matter WA No. 119 of 2008 in WP (C) No 6877 of 2005 challenging CBI investigation a couple of years back declared the CBI to be an un constitutional entity. The judgement has been stayed by the Supreme Court and the matter is pending there. But the facts regarding the creation of the Frankenstein monster which threatens to gobble up our federal polity are revealing. Let us give a careful reading of the deliberations on the original file, the foundational document:
“Whether it is necessary to have a new comprehensive Act to define the functions and the powers of the Central Bureau of Investigation and to give it the legal authority for conducting enquiries and investigations all over India?
If States are to be consulted and if a new comprehensive Act has to be passed by Parliament before the setting up of the Central Bureau of Investigation, this proposal is likely to be unduly held up. Objections might be raised or doubts might be expressed by some States and the process of resolving them will necessarily take time. Some difficulties might also arise from the standpoint of the spheres of responsibility of the Centre and the States.”
The creation of CBI, it appears, was absolutely necessary and it could brook no delay so here is what they came up with. “Even with all the care in drafting and preparing the Act it is likely to be questioned in courts and it is difficult to anticipate what the decision of the courts would be on the validity of the new Act or on legal points arising from it.
On the other hand, it might be mentioned that the Delhi Special Police Establishment Act has already gone through this process. Its provisions have been debated in courts from all possible angles and it has withstood onslaughts from all directions. Even the highest courts have upheld the validity of the provisions of this Act. It is a matter for consideration whether it would be worthwhile framing a new Act just at present with all the delay and difficulty that this involves and with the risk that it is likely to entail.” (The above quotes have been cited in the judgement declaring CBI unconstitutional)
Under the Government of the time headed by Sri Jawaharlal Nehru and comprising of the top icons of the Congress pantheon, a resolution was issued under the signature of the then Secretary to government of India S. Vishwanathan bringing into being the CBI from 1st of April (1st of April?) 1963.
CBI was thus born, riding piggy back on the Delhi Special Police Establishment Act. But once launched it has been on a roller coaster ride, gathering destructive potential along the way until its perilous adventure has brought the polity on the brink of an abyss fifty-five years later.
Those who are really keen to educate themselves must refer to the judgment itself, for its sheer architectonics, if for nothing else. It is built like an impregnable castle, designed to withstand every assault. The court has appointed an amicus curie to obtain non-partisan advice apart from the contestations of the rival parties. Then it goes on to make sure that there was no previous judgment on the issue before them for the consideration, that is, ‘whether the CBI is an entity created by due process of law.
There was none. The many Apex Court judgements delivered from time to time, explicating the role, power, and jurisdiction of the CBI are gone through with a fine toothcomb, and like a trained surgeon wielding a scalpel the ratio decidendi is separated from the obiter dictum. The matter in its extant formulation has never been heard.
The division bench begins at the beginning and asks the union of India as well as the parties to the writ to produce all the relevant papers as to its creation. The original file concerning the creation of CBI is missing and the Union of India produces an attested copy of the file procured from the National Archives. Having exhausted this search for papers the Court puts them to diligent scrutiny. The stark fact of the matter is that there is no paper to suggest that the CBI as a police organization was ever created. In fact, the CBI in official parlance and an icon in popular culture can be connected to the Delhi Special Police Establishment Act only through inference, obliquities and indirect references.
There have been half a dozen amendments since independence and yet the word CBI does not occur anywhere in the Delhi Special Police Establishment Act (DSPE). DSPE is like Hamlet without the prince of Denmark.
The resolution which creates this organization has not been vetted by the union cabinet nor does it have the Presidential assent even to qualify as an executive order. “...that CBI has been investigating offences and prosecuting alleged offenders in the garb of being an organization under the DSPE Act, 1946. In fact, we have already indicated above that the impugned Resolution, dated 01.04.1963, is not, strictly speaking, an executive action of the Union within the meaning of Article 73 in as much as the executive instructions, embodied in the impugned Resolution, were not the decision of the Union Cabinet nor were these executive instructions assented to by the President. Therefore, the impugned Resolution, dated 01.04.1963, can, at best, be regarded as departmental instructions, which cannot be termed as ‘law’ within the meaning of Article 13(3) (a) nor can the executive instructions, embodied in the impugned Resolution, dated 01.04.1963, be regarded to fall within the expression, "procedure established by law", as envisaged by Article 21 of the Constitution”.
The Court went on to quash the resolution “In the result and for the reasons discussed above, this appeal partly succeeds. We hereby set aside the impugned judgment and order, dated 30.11.2007, passed, in WP(C) No. 6877/2005, and while we decline to hold and declare that the DSPE Act, 1946, is not a valid piece of legislation, we do hold that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946.
The Government of India challenged the verdict in the Supreme Court and the judgement has been stayed. Matters sub judice are to be approached with utmost care and respect, therefore, I have studiedly avoided making any comment and have stated only quoted facts and observations from the judgment. My simple submission is this: why did Mr. Manmohan Singh’s government not make a special plea to the Supreme Court to decide this matter on an utmost priority. What stops the present government, political party activists, jurists, civil society spokesmen to make a common cause before the Supreme Court now to take up the matter straight away instead of PILs about peripheral issues.
But that is not going to be. Every politician, every political party worth the name aspires to the Sultanate of Delhi. All of them would like to use this versatile tool when their turn comes to discipline their rivals. CBI is happy to be used and has found innovative ways to be ever more useful.
The judgment needs to be more widely known and read in the original by whoever cares about constitution and constitutional proprieties.