‘A Rope of Sand’

In a recent newspaper article, one of the country’s pre-eminent jurists, Fali S. Nariman, has described the Central Bureau of Investigation (CBI) as that of ‘‘nods and winks’’, questioning its independence or autonomy, ‘‘occasioned’’, as he says, by the ‘‘(Jagdish) Tytler drama’’. The CBI has given a clean chit to the tainted Tytler, absolving him of his alleged role in the anti-Sikh riots of 1984 following the assassination of Indira Gandhi by her Sikh bodyguards. Nariman argues that though the Act under which the CBI has been set up provides, under Section 4, that it must function under the ‘‘superintendence’’ of the Central government, the word ‘‘superintendence’’ does not have its ordinary meaning — to ‘‘superintend, direct and control’’ — in the exercise of ‘‘investigatory powers into offences under the Code of Criminal Procedure’’. He says: ‘‘The word has a special meaning — especially since the decision in Vineet Narain (1998) which held that Section 4 cannot be construed so as to permit supervision of the actual investigation of a criminal offence by the CBI and the Central government is precluded (by judicial diktat) from issuing any direction to the CBI to curtail or inhibit its jurisdiction to investigate into offences.’’ But what is the reality? Nariman himself provides the answer by quoting a Supreme Court observation of November 2006 in the Taj Corridor Scam case (for which UP Chief Minister Mayavati earned notoriety) that was investigated by the CBI. The apex court had commented thus: ‘‘In matters after matters, we find that the efficacy and ethics of the governmental authorities are progressively coming under challenge before this court by way of PIL for failure to perform their statutory duties. If this continues, a day might come when the rule of law will stand reduced to a ‘rope of sand’.’’ To avert a ‘‘rope of sand’’ calamity, Nariman has called for putting in place ‘‘an Independent Bureau of Investigation’’ by means of a ‘‘law expressly enacted by Parliament’’ and for which there are ‘‘models in the US which are available which could and should be adapted’’. As he rightly says, the real question, when it comes to the functioning of the CBI and its many failures, is ‘‘whether it isn’t time that the CBI be made institutionally (sic) independent of pressures and pulls from within the government or without’’. It is indeed high time that the question was addressed and an answer found to stop the CBI’s hijacking by the party in power at the Centre.

Had the country’s premier investigative agency been institutionally independent of the party in power or government, the Jagdish Tytler episode would not have happened — and with it a whole lot of other events too, which have sullied the CBI’s reputation and eroded the faith of people in governmental authorities. An investigative authority whose main business it seems is to report to the party in power, whichever it may be, rather than to the court of law, and which cannot resist its misuse and manipulation by that party (think of the CBI being branded ‘‘Congress Bureau of Investigation’’), militates against the very foundation of democracy and disrupts its functioning as a people-driven and people-centric regime. There must now be a way out to salvage our democracy. But will the next government be bothered about that cause? After all, status quo will suit any government, regardless of the party or coalition forming it. THE SENTINEL