Not a pet hawk to oversee the uncaged parrot, please

Delivering this year’s lecture in memory of DP Kohli, founding director of the Central Bureau of Investigation (CBI), Chief Justice NV Ramana recommended the creation of an autonomous umbrella organisation to house all the different central investigative agencies, and clear separation of prosecution from investigation of crimes.

The creation of an autonomous organisation to which all different central investigative agencies would report is meant to serve two goals — insulate investigation from political interference and avoid duplication of investigations by different central agencies of the same offence.

The chief justice has only added to the already bounteous supply of material to pave the road to hell. Yet another autonomous body only begets the question, who will hold the autonomous body to account?

How do we ensure its autonomy is any more substantive than the absurd estimates of notional loss by another autonomous body, the Comptroller and Auditor General of India (CAG), an occupant of which office is now being investigated for a role in arms deal shenanigans?

Chief Justice Ramana is right, however, to demand coordination amongst central investigative agencies. We see how a CBI inquiry is followed, when it fails to turn up anything incriminating, by an investigation by the Enforcement Directorate or, if that also proves infructuous, by the tender ministrations of the Narcotics Control Bureau, in the case of individuals who happen — just happen — to be affiliated to political opponents of the powers that be.

Assumption of autonomy

The notion that designating some office as autonomous will guarantee its autonomy is naïve. We have seen Election Commissions that have been truly autonomous and Election Commissions that have been more accommodative of the wishes of the ruling party.

We have seen CBI directors who have been upright and CBI directors who have the curvilinear appeal of a child in the womb. We have seen chief justices who have called the Centre’s premier investigative agency ‘a caged parrot’ and others who have quietly accepted a political nomination after retirement.

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Autonomy has to be instituted through procedure, not by nomenclature. Having a selection committee with representation by the Leader of the Opposition does not guarantee impartiality or political neutrality, as was evident from the recent battle between two claimants to the CBI director’s post, both assiduously loyal to the powers that be.

Insulation from the influence of the ruling political dispensation has to be secured through institutional accountability to representatives of the people, a committee of the legislature, whose composition must be multi-party, and proceedings, public, except for matters with a bearing on national security.

One problem with the notion that the investigative and prosecutorial functions must report to an autonomous body, and not to the executive, is that it vitiates, in order to insulate it from political interference, the exercise of legitimate political oversight of these functions.

The police must be accountable to the elected government, not to some ‘autonomous’ embodiment of righteous nobility. The point is to ensure that such accountability to political authority is not abused for partisan gain by those in office; and that goal is best achieved by making the investigative and prosecutorial functions accountable to the legislatures and to a body such as the National Human Rights Commission. Multiple lines of accountability will not so much breed inefficiency as offer insulation from overbearing influence by any one source of oversight.

Separation of prosecution from investigation

Another important matter raised by the Chief Justice in his address was the separation of prosecution from investigation. This is how it is supposed to be, especially after an amendment to the Criminal Procedure Code in 1973, and yet another in 2005. Yet, merely separating prosecution from investigation is no panacea for the ills of India’s criminal justice system.

The police bear the double burden of maintaining law and order and investigating crime. The two are inter-related, but, except in the area of preventive intelligence, call for divergent skills.

Deploying forensic science and the sleuthing skills that we admire in Sherlock Holmes and Hercule Poirot are very different from reining in a rioting mob or capturing armed robbers.

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Indian police are trained primarily to maintain law and order. This makes their investigation feeble, by default. Separate specialisation in investigations and law and order functions is desirable, to strengthen the cause of investigation. And without effective investigation, there cannot be successful prosecution.

Will not partisan majorities in committees of legislature interfere with the business of holding the investigative and prosecutorial functions accountable? Why expect Members of Legislative Assemblies and Members of Parliament, who demonstrate all the autonomy and initiative of sheep trailing behind the bellwether, to put their partisan loyalties aside while hearing the testimony of those whom they are supposed to hold to account?

This is where the importance of conducting the work of the legislative committees in the open — on camera, rather than in camera (camera has the same etymological root as the familiar Hindi word for room, kamra, explaining the ‘behind closed doors’ sense of in camera).

Even if the Opposition is in a minority on the committee, its members’ questioning can bring out partisan conduct, if any, in the working of the investigative or prosecutorial agency. That should matter to the public and to institutions such as the judiciary.

The ultimate guarantors of freedom in a democracy are a vigilant public. Eternal vigilance, it has been said, is the price of liberty. Those who are not ready to pay that price can immerse themselves in the pleasures of T20 matches, WhatsApp videos and the subliminal hysteria of leader worship, but not expect to experience democracy.

(TK Arun is a senior journalist based in Delhi)

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not reflect the views of The Federal)