Errantry - Exploring the quotidian CBI archive

As is fairly well known, the Central Bureau of Investigation [CBI] traces its origins to the Special Police Establishment [SPE]. This agency operated without statutory backing at first, but then was conferred legal basis first by way of an Ordinance [No. 22 of 1943] and then by the Delhi Special Police Establishment Act of 1946 [DSPE] — which remains on the statute book even today. 

The primary task of the SPE was rooting out corruption from public service; or more specifically, central agencies and their officers. The need to combat corruption is perhaps one of those political and legal issues that resonates across time and space in independent India's history. Which is what makes the archive of the SPE a fascinating site to explore for anyone interested in how has the enforcement of laws fared in the past— either for pure, unsullied historical interest, or to draw lessons for the present.

This is the rabbit hole that I stumbled into after having found a copy of the Report published by the Bakshi Tek Chand Committee, or the "Report of the Special Police Establishment Enquiry Committee" (1952). It is a remarkable document in more ways than one. For instance, I did not know that permanent commission for the SPE itself was an uncertainty for many years. Nor did I know that staffing concerns undermined the agency as poorly back in 1952 as they did in the 1990s-2000s, when the Supreme Court decided it had to do something about the CBI's functioning.

The 1952 Report was merely the most visible part of the iceberg. Publicly available material pertaining to the SPE archive extends to providing us with a quotidian account of how the fledgling agency was being run at a time of unparalleled significance for the country. Just before independence we find letters being written to the Chief Commissioner, Delhi, for issuing Curfew Passes to SPE officers as they all lived in Old Delhi and could not manage to travel for work (!). It also has an interesting portrait of the officer in-charge of the agency in its initial years, one T.A. Bambawale. 

The organisational setup shows how threadbare the operation was, a feature of the fiscal constraints as well as constraints imposed upon by partition on the availability of officers. We see detailed progress reports of cases being maintained and circulated, as well as acquittal reports with remarks by officers. There is protracted letter-writing on financial questions such as who should bear costs of hiring special counsel running a trial — a debate running from 1948 till 1953.  

The archive shows us the other side of the story too: petitions to various authorities by persons aggrieved of their prosecutions. Writing to the agency the grounds invoked are in the language of law. And when that leads to no avail the aggrieved parties did not hesitate to write to the ministers themselves, invoking the idea of a "people's government" for good measure. All of this, mind you, was happening in the immediate aftermath of Independence Day on 15.08.1947 so as to curb further hearings scheduled for October — the wheels of justice continuing to turn and to give glimpses of the every day in an extraordinary moment.

For the lawyer, I particularly enjoyed glimpses from the archive about how legal procedures played out. A few of these vignettes pertained to one case — a prosecution against M/s JK Gas Plant and its directors for (essentially) illegal sale of iron during the War [part of the same group which is today responsible for other 'JK' businesses in India]. While I could not locate the fate of the trial which was proceeding before one of the Special Tribunals constituted through an Ordinance during the War [and retained pursuant to a logic of perpetual ordinances], the archive shows us that it was a somewhat sensational case where one of the accused [B.B. Mathur] sought police protection alleging threats to his life in August 1947 made by / on behalf of the other director of the company. His plea was found genuine and he was granted protection, up till July 1948 when it was withdrawn on his own request. Far more mundane was the affair surrounding summoning of a key prosecution witness for the trial. This witness was now in Pakistan, and a government employee. In a series of events all too familiar to criminal lawyers today, the government bungled up the manner in which summons had to be served on a witness residing abroad, delaying the trial. In a series of events all too familiar to witnesses, the case kept getting adjourned on multiple dates thereafter when the witness was present. Ultimately, the Pakistani authorities wrote to their Indian counterparts to complain about the sheer wastage of time this exercise had occasioned, and requested if a commission could come to Pakistan whenever the proceedings did decide to record evidence.

Unsurprisingly, some effort appears to have gone into thinking about publicising the work of this agency in which such faith was instilled. The publicity drive extended to more general efforts at informing the public about the existence of the SPE [a more low key version of governments doing automated calls to inform citizens about anti corruption bureaus]. In an odd twist, the generic piece so published ended up suggesting there was too much corruption, not the kind of messaging the government wanted. The solution became to share all draft articles with the government before publication. Careful measures were taken to publicise convictions, with press notes being circulated by the government through agencies like the AP etc and also being placed in newspapers of the day. Much of these pertaining to cases where officers were caught "red handed". 

The catching of officers "red handed" is a technique that remains prominent to this day. Today these are called 'trap cases' where often the officer is entrapped into taking a bribe, with witnesses at hand to catch him in the act. Back in the day, a feature of the traps laid by the SPE appears to have been using judicial officers are eyewitnesses to the exchange of bribes. Such a 'committed' judiciary might have been the stuff of dreams for some in new India, but it was not palatable to more conventional heads such as the Justices of the Calcutta High Court [AIR 1951 Cal 524], who strongly deprecated the practice in 1951. A few years later [1954 SCR 1038], dealing with a set of appeals against convictions resulting from prosecutions launched by the SPE, the Supreme Court also dealt with a trap case. Here, not only had the SPE made an Additional District Magistrate a witness, but it had also supplied the bribe money for laying the trap [a princely sum of Rs.25,000/-]. While the Supreme Court accepted that laying of traps may be necessary on occasion, it strongly condemned the SPE having supplied the bribe money and having used members of the judiciary as witnesses for the trap. 

The archive suggests that one of the reactions at the level of the SPE was to quickly reorient itself to make sure that it could use the technique of entrapment effectively. Accordingly, a memo was issued to all the ministries to depute officials who could serve as independent witnesses whenever the SPE asks, citing the need for independent witnesses to bolster the legitimacy of the entire exercise. It would be interesting to see what memos were generated in respect of the SPE using its coffers to set the trap itself!

Supreme Court Grants Bail in the P. Chidambaram Cases — Some Thoughts

[This is a long post discussing both the CBI and the ED Bail Orders]

Readers may recall that at the end of August 2019, the Delhi High Court dismissed the petitions of P. Chidambaram for anticipatory bail in connection with what has become popularly known as the "INX Media Scam", which was the subject matter of investigations being conducted by the Central Bureau of Investigation ["CBI"] as well as the Enforcement Directorate ["ED"]. Mr. Chidambaram was arrested by the CBI almost immediately after this order, and so he moved the Supreme Court for anticipatory bail in the ED case. The petition in the ED case was also dismissed on 05.09.2019, since the Supreme Court agreed that necessary custodial interrogation would suffer if bail were granted.

Mr. Chidambaram's bail pleas in the CBI case made their way to the Supreme Court, and around two months after his initial arrest, the Supreme Court held in his favour, directing that he be released on bail in the CBI Case [Crl. Appeal No. 1603/2019, decided on 22.10.2019]. However this did not lead to his release since, around a week before the order, the ED had sought, and was granted, permission to arrest Mr. Chidambaram [Note that the ED had not made any efforts to secure his custody, let alone arrest Mr. Chidambaram, till 11.10.2019]. This triggered another set of bail petitions, which resulted in the order passed today in P. Chidambaram v. Enforcement Directorate granting him bail in the ED case [Crl. Appeal 1831 of 2019, decided on 04.12.2019].

The slew of orders passed by courts in Mr. Chidambaram's petitions has made distinct contributions to the law in this field — some desirable, others not so. Having discussed previous orders at the stage of anticipatory bail, this post discusses the two orders of October [Crl. A. 1603/2019] and December [Crl. A. 1831/2019]. I first discuss their contributions to the law, and then make some observations on the proceedings at large to highlight the seriousness of certain issues that are given criminally negligible attention by courts while considering the grant or refusal of bail.

P. Chidambaram v. CBI — Focusing on the Particulars       

The posture of proceedings before the Supreme Court in this case was slightly peculiar: The High Court had held that there was no basis to apprehend that Mr. Chidambaram would tamper with evidence, or that he was a "flight risk". Nevertheless, it rejected his bail plea, considering the probability that he could influence other witnesses. Both parties filed cross-appeals in the Supreme Court where the accused sought bail, and the CBI sought to challenge the High Court's observations that Mr. Chidambaram was not a flight risk.

In a pleasantly short order, the Supreme Court held that bail ought to be granted. Besides helpfully culling out five relevant principles for considering bail pleas for future courts [(i) Gravity, (ii) Threat of Tampering with Evidence, (iii) Threat of Absconding, (iv) Status / Personal factors of the Accused, and (v) Public / State interest (See Paragraph 22)], the Court also repeatedly insisted that the specifics of each case be looked at and, in doing so, chided the State for asking the Court to treat the "flight risk of economic offenders [as] a national phenomenon".

How is a Court to consider the above factors, then? The Supreme Court did not approve of a full-blown analysis of the merits of the prosecution. Instead, it advocated an approach that focused on the identified factors primarily, along with a minimal consideration of the prosecution's case itself. Judicial analysis of these bail factors had to be rigorous — something apparent in how the CBI submissions were rejected for being vague, generic, and totally unsupported by the actual facts of the case [Paragraphs 27 ("Flight Risk"); Paragraphs 28—31 ("Tampering")]. Thus, as the Court points out: 

Mere averments that the appellant approached the witnesses and the assertion that the appellant would further pressurize the witnesses, without any material basis cannot be the reason to deny regular bail to the appellant; more so, when the appellant has been in custody for nearly two months, co-operated with the investigating agency and the charge sheet is also filed. [Paragraph 31. Emphasis supplied]

I suspect that the Paragraph extracted above might end up being cited in subsequent bail petitions and judicial orders. But the real takeaway is the judicial approach on display here: The Court's refusal to be cowed by rhetoric and hyperbole while remaining keenly focused on an appreciation of the facts as they are relevant to the issue of bail. This is something that merits emulation, especially in cases where public glare is the harshest.

P. Chidambaram v. ED — Of Triple Tripods and Gravity of Offences

The Delhi High Court had denied bail in the ED case primarily due to the seriousness of allegations while holding that there was no threat of Mr. Chidambaram either absconding or tampering with evidence. Its order had attracted a stream of press coverage for reportedly copying portions of the State's submissions as part of its "findings", as well as discussing the facts of an entirely unrelated case as being related to the case against Mr. Chidambaram [Paragraph 11].

The Court relied upon its own earlier orders from October in Crl. Appeal No. 1603/2019 to outline the factors relevant for deciding a bail petition. But, curiously, the Court completely failed to mention that this was a case where, besides Section 439 of the Criminal Procedure Code 1973 ["Cr.P.C."], the provisions of Section 45 of the Prevention of Money Laundering Act 2002 ["PMLA"] would also have to be considered. 

That provision itself had been struck down as unconstitutional in 2017. But since then, there was an amendment to the PMLA in 2018, which sought to cure the defects in the provision and render it constitutional. In fact, the legal effect of the changes to Section 45 through the 2018 amendments has been the subject of judicial scrutiny before some High Courts but it is an issue that hasn't yet been considered by the Supreme Court. Given this position, I find it extremely peculiar that the judgment completely fails to mention Section 45, and wonder if this fact may form a valid ground for review.

After the Supreme Court simply assumed that the legal considerations for bail in a PMLA case would be the same as in any other case [Paragraphs 15—17], it also impliedly rejected the submission made by Dr. Singhvi, appearing for the appellant, that the gravity of an offence needn't be a factor for consideration at the stage of bail and the only relevant factor was the "Triple Test" of evasion, tampering, and influencing witnesses (or "Triple Tripod" as the order notes at one place) [Paragraphs 15—17, 21]. 

Having said so, the Apex Court disapproved of the manner in which the High Court had gone about considering the merits of the prosecution case for assessing the gravity of allegations. This criticism was of a threefold, and partly contradictory, nature: (i) the extensive nature of scrutiny, (ii) the apparently uncritical assessment of facts (by copying the State's submissions), and (iii) relying upon the material supplied in sealed covers to arrive at a conclusion [Paragraphs 23—24]. Considering the ubiquity of sealed covers in the practice of law today, it was refreshing to read the Court refraining from opening the sealed cover [Paragraph 24] and observing that: 

In that circumstance though it is held that it would be open for the Court to peruse the documents, it would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail. [Paragraph 23. Emphasis supplied]

The Supreme Court did not agree with the finding that the seriousness of allegations was a sufficient reason to deny Mr. Chidambaram bail. In arriving at this conclusion it also strongly rejected the State's claim that his custody was required to confront him with witnesses, recalling that the ED had  had several months to do so since the rejection of Anticipatory Bail on 05.09.2019, and that Mr. Chidambaram's cooperation with the investigation could be secured through appropriate bail conditions. One of these, which is bound to attract some controversy in the coming days, is a condition prohibiting him from speaking publicly in "connection with this case" [which may or may not extend to the CBI case].   

The Chidambaram Cases, Arrests, and Custody — Unexplored Issues

The legal aspects of the Chidambaram cases have thus been explored. But it would be naive to think that these cases were all about the law — far from it. This is why it becomes important to consider some of the other issues that remain unexplored in these orders. Foremost among these issues is the need for greater scrutiny while evaluating the State's perceived need for a person's custody and alleged non-cooperation by an accused person with the investigation.

While discussing the 05.09.2019 order rejecting Mr. Chidambaram's plea for anticipatory bail in the ED case, this Blog had criticised the "hands-off" approach of the Supreme Court in engaging with the arguments about the lack of cooperation by the accused. The order reflected a complete refusal to test the claims by ED of the need for Mr. Chidambaram's custodial interrogation, uncritically accepting the submission about there being a "qualitative" difference in the kind of questioning that might be conducted with a person on bail. The bail order of 04.12.2019 does narrate the failure of the ED in conducting any significant interrogation or confrontation with witnesses, but it sorely missed an opportunity to revisit this critical issue which crops up in almost every other bail hearing. 

In fact, the Chidambaram cases confirm how agencies often seek custody without ever having any intent to conduct thorough questioning, and repeatedly seek further extensions of custody by promising that a very important phase of questioning is on the horizon. Thus, while the Supreme Court did well to call out the ED on its bluff of future questioning in the 04.12.2019 order, it still remains possible for state agencies to merely claim that an accused person is not cooperating with the probe without ever having to substantiate this allegation to a reasonable degree of scrutiny. Surely this cannot be the position of law in a constitutional republic that claims to be very protective of a person's right to life and personal liberty. 

The unrelated, and more thorny issue, is the role played by the "gravity" of an offence. This was one of the main grounds for critiquing the Delhi High Court's initial orders of August 2019. Again, it is unfortunate that the Supreme Court did not make some attempts at clarifying the legal position through the multiple orders it passed in the Chidambaram cases. 

To recap, the problems with considering the gravity of the offence as a factor for deciding bail petitions are twofold. The first problem is a lack of nuance while considering the issue: Simply looking at the maximum possible sentence and the best case of the police is too uncritical an approach, especially in offences where criminality is inferred from neutral facts [fraud, corruption] and is not apparent as in cases of bodily harm [murder, dacoity]. 

But there is also a second, related problem with treating gravity as a factor for deciding bail petitions. Considering the fact that a case is at its infancy when a bail petition is being heard, courts have consistently held that there mustn't be an in-depth examination of the merits, which is something reserved for the trial. At the same time, there must be some examination of the merits to determine the gravity of allegations, since a court cannot blindly accept every averment that the police makes. Drawing this fine line between what is too little and what is too much scrutiny of the facts is the problem, and we saw how the High Court's approach was criticised in both the CBI and ED cases as having gone too far in its analysis. But this criticism was hardly scientific, and the arbitrariness of this line-drawing is apparent upon a random sampling of bail orders and on reading the submissions made before courts. 

Considering that the Supreme Court specifically rejected Dr. Singhvi's submissions on the factors for deciding bail, and unequivocally held that "gravity" must be seen as a factor for determining the bail petition [Paragraph 21 of the 04.12.2019 order], it is singularly unfortunate that while it criticised the Delhi High Court's analysis, it did so without offering any guidance for courts which undertake this difficult line-drawing exercise on a daily basis. Greater certainty in this realm would not only help reduce the arbitrariness that plagues bail hearings at present, but would also arguably make them proceed faster, with everyone having a clearer picture of what is relevant and what isn't.      

The Asthana Judgment and the Puzzle of Section 17-A, PC Act

A few weeks ago, a Single Judge Bench of the Delhi High Court dismissed the petitions filed by Mr. Rakesh Asthana and others, seeking to quash the criminal investigations initiated against them by registration of a First Information Report [FIR] under provisions of the Indian Penal Code 1860 [IPC] and the Prevention of Corruption Act 1988 [PC Act] [See, Devender Kumar v. CBI, WP (Crl.) 3247 of 2018, decided on 11.01.2019]. The allegations, briefly, were that the concerned officers were extorting the complainant into paying them huge sums of money to close investigations being run by the CBI. It took the complainant almost a year after the first alleged incident of extortion to register a complaint with the CBI, which then lodged an FIR against the concerned CBI officers. 

The Section 17-A Issue

The High Court judgment dismissing the petitions discusses several arguments, but the focal point of attack for the CBI officers was a lack of sanction under the new Section 17-A of the PC Act, that was inserted in 2018. This Blog has discussed Section 17-A in depth earlier, and for convenience the text of the provision is copied below (the judgment copies the incorrect provision, amazingly):

(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval [relevant authorities mentioned] 

... 

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: 

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month. [Emphasis supplied]

Briefly, the point to be noted is that Section 17-A applies to investigations. This is different from the existing provisions in Indian law that require police to obtain sanction before prosecuting public servants.

The High Court's View on Section 17-A
In dismissing the petitions, the High Court naturally held that there was no need for prior sanction to register the FIR. How did it come this conclusion? The analysis is distilled in Paragraph 36 onwards, and I have shortened them to two broad points:

• One, Section 17-A is only designed to protect bona fide decisions. If the act is "ex-facie criminal or constitutes an offence" prior approval is unnecessary. The alleged acts — extortion and threatening persons — cannot be in "discharge of official functions or duties of the public servant" and so no sanction is needed. 
• Section 17-A is not attracted as this case involves "no recommendation or decision on record by a public servant in the discharge of his official functions" [Emphasis mine].

There is other rhetoric as well, on the lines of speedy investigations being in the best interests of all and that the law does not defer to personalities, but these are the broad legal reasons for the High Court's view. The first point is an old one and sourced from the existing law on sanction to prosecute, where the Supreme Court has restricted sought to eliminate any need for sanction where acts are per se a crime, such as entering into a conspiracy. The second point, though, is new, and an ingenious take on the text of Section 17-A PC Act. While the section mentions nothing about decisions "on record", the Court has introduced that to exclude this case from the need for sanction.

A Critique of the High Court View

The thrust of the Delhi High Court decision is to interpret Section 17-A as a safeguard for the good officer. In the words of the Court, the purpose of sanction "can be read to be only to provide protection to officers who discharge their official functions and / or duties with diligence, fairly, in an unbiased manner and to the best of their ability and judgment, without any motive for their personal advantage or favour." 

This approach has held the judiciary in good stead in cases involving sanction to prosecute officers for several decades, but is not without faults. The most natural one being that this involves placing the cart before the horse: the judiciary ends up judging whether the act was bona fide or not at the outset, whereas that job is for the sanctioning authority. 

This logical problem is greatly accentuated in the case of Section 17-A of the PC Act, which triggers at the stage of investigation itself. After all, this is the first step in the case, and it is impossible for the allegations to be concrete as the FIR is not the outcome of a thorough investigation. Moreover, the language of Section 17-A is very loose — it seeks to not only protect the decision, but also acts that are relatable to it. 

In focusing on a bona fide decision, is the judgment not giving a simple way out of Section 17-A sanction by telling us that complaints should be framed so as to avoid any mention of official decisions? It is impossible to apply the bona fide decision test with any sense of objectivity. If we keep going down this road, what Section 17-A will be reduced to is the judiciary vetting every FIR, in addition to the vetting by the executive branch that the provision originally contemplated.

This then brings me to the second point, of requiring decisions on be "on record" for Section 17-A to apply. As ingenious as the solution may be, the fact is that these words are not there in Section 17-A and thus amount to the court re-writing the statute. This re-writing is usually impermissible unless the law has a gap or a clear and obvious error. Both seem to not apply here, which make this ground a rather weak one.

Conclusion: The Puzzle of Section 17-A 

The Delhi High Court's decision in Devender Kumar offers one of the few judicial engagements of Section 17-A currently available and deserves to be discussed widely. At its heart, the Delhi High Court is driven by the idea that Section 17-A is driven to protect bona fide decisions in the same way as the existing law did. But in extending the protection of sanction from prosecution to investigation, it becomes very difficult for courts to actually figure out when decisions are good or bad. This makes it equally difficult to accept the High Court's view of the purpose behind Section 17-A. Rather, one would argue that the purpose is exactly to confer a blanket protection to public servants, except if they are caught red-handed. This is perhaps why the expedited sanction of three months is provided for as well. This blanket view will also take away the need for courts to review each case to decide if sanction is needed or not. It will be fascinating to see how different courts perceive the issue going forward, and also to see how many courts engage with the other ground of Devender Kumar of only applying Section 17-A to recorded decisions. 

The Rajasthan Ordinance, and Seeking Sanction to Prosecute and Investigate Public Servants in India

In September 2017, the Rajasthan government issued an ordinance that sought to (i) make it necessary for investigating authorities to first get sanction from the government before pursuing allegations against a public servant, giving the government up to six months to consider, and (ii) bar any person from disclosing any details about the concerned official until this permission had been granted. The Government has since moved a bill in the legislature to make the law permanent, while the ordinance itself has been challenged before the Rajasthan High Court which is yet to decide the case. News media has seen few supporters barring a Junior Law Minister in the Union government supposedly considers the ordinance 'perfect and balanced'. Most others are challenging it for stifling investigations and illegally curbing the constitutionally protected freedom of speech.  

Are there any merits to, if not all, then some parts, of the Ordinance? Might we see more such ordinances across states in the near future if Rajasthan's version passes judicial muster? I have been thinking about these questions, and here, I try and understand them through this post. Understanding needs context, which is often absent from discussions of sanction in India. This post begins with a brief historical introduction to the 'sanction to prosecute', flagging the recent constitutional problems surrounding the concept. I then try and suggest that the Rajasthan ordinance is the logical aftermath of the judicial treatment of sanction. This means, unfortunately, that this is a rather long post. I hope it isn't long and pointless.

The Imperial Lineage of Sanction to Prosecute

Most legal systems recognise the right of an individual to pursue legal remedies when her rights are violated. If you beat me up, I have the right to pursue a case in court against you. In India, this can happen by either approaching the police who might take the case to court after investigation, or by going to court yourself. Now, it is easy to imagine the possibility of this (or any) right being abused - I might bring a false case to harass my opponent. We address this through preventing or punishing such conduct. The idea of seeking permissions to bring lawsuits fits in the former, which is basically what seeking 'sanction to prosecute' is. An administrative superior acts as a filter to ensure frivolous cases are not brought in court against public officials. The Criminal Procedure Code 1973 [Cr.P.C.] carries this filter in Section 197, which requires prior sanction to 'prosecute' (this is important) public servants (both serving and retired ones) only when allegations concern things they did actually in the course of duty, or purporting to be so.      

But why public officials, you might ask. An educated guess is India's colonial context informed this decision to protect those associated with government. The colonial regime introduced sanction in its first comprehensive criminal procedure code of 1861 [Section 167, at page 186 of the link], and kept it in the 1872 Code [Section 466, at page 509]. The modern version of this which I referred to above came in the 1898 Code [also Section 197, at page 141]. Broad protections shielded those working for the government who, to put it mildly, did not hesitate to step beyond the bounds of law while discharging their duties. A harsh terrain mandated harsh methods, and to allow prosecutions would stifle the governance project (opening for potential historical research examining if native and British persons were treated differently when it came to granting sanction!). Though speculative, I think this idea fits better than the arguments floated in London to defend similar restrictions to prosecute (the link is for debates in 1934, but the law remained the same even before). English law focused more on the nature of the offence rather than the offender - sedition, corruption and other potentially sensitive allegations could only be pursued with the Attorney General's consent, while the Indian version focused on the identity of the defendant and covered every person under the pay of the government. 

Over time it seems this justification changes, as seen from debates in the House on the Government of India Act 1935, which gave constitutional bases to protections for public servants from suits and prosecutions [Sections 270-71, at page 105. Fascinating, showing the crown was concerned about soon-to-be-elected local governments possibly changing the law on this front]. The legislature spent more time discussing civil suits, but the debates are useful for the criminal prosecution issue nonetheless. Mr. Thorp (column 54) spoke of how it was 'introducing a dangerous principle'  to India and could hurt genuine cases, while the Duchess of Atholl (column 55) spoke of apprehensions that the clause 'falls short of what civil servants feel to be necessary'. This largely mirrors the divide that we see today. Bureaucrats consider it necessary to have these protections to perform their duties while aggrieved persons consider them as impediments of entitlement. 

Independent India and the Opportunity Doctrine 

What became of the requirement of sanction in independent India? Well, it was quickly subjected to a constitutional challenge. In Matajog Dobey [AIR 1956 SC 44] the petitioner argued that Section 197 violated the equal protection clause by giving public servants protections from legal proceedings that others did not have. The Court swatted this aside by holding that public officials 'have to be protected from harassment in the discharge of official duties' while ordinary citizens did not. The vast category of public servants under the pay of the government - both union and state - was thus recognised as a class separate from all others, a distinction that has not been displaced. 

This did not mean the judiciary was not concerned with the debates that I highlighted above. In fact, the concern was palpable. High Courts before independence, and later the Supreme Court too, were acutely aware of the tightrope being tread - read the requirement too narrowly and you render the protection illusory, but read it to cover everything a public servant does and you make accountability a mirage. The judicial device created to navigate this problem was what I will call the 'Opportunity Doctrine' - if public office merely gave an opportunity to commit crime, then there was no need to get sanction. But where the alleged criminal acts were inseparable from the office and were 'integrally connected' to official duty, sanction was a must. So, if a public official misuses the privileges of office (goes on a joyride with government sponsored fuel) then prosecuting that offence should not require sanction. But if a municipal authority colludes with one real-estate developer to allot land at cheap rates, then we may need prior sanction to prosecute.          

The malleability of the Opportunity Doctrine should not go unnoticed - beyond the obvious cases it left a huge middle ground to be navigated with little more than gut instinct. For instance - what about the bank official who pilfers funds for his own use? Did his job merely grant an opportunity, or was it integral to the crime? The judicial grappling with sanction had a significant impact on the text itself. For starters, the test ignored that Section 197 never required an integral connection with duty: it's needs were met even if the acts were purportedly in discharge of duty. Since sanction was a tool to filter cases at the outset, it naturally required this broad scope. Considering whether sanction was needed in post-conviction review (appeals) by courts slowly dislocated it from its preventive roots. After all, how willing would a judge be to reverse a conviction arrived at after a lengthy trial on the technicality of there being no sanction to prosecute an official? This version undoubtedly tapers over the cracks but it would be difficult to argue that the broad shifts are not as I suggest.  

The Intra-Branch Dialogue and Sanctions to Investigate 

Thus we see how courts assumed control of the sanction to prosecute after having refused to strike it down as unconstitutional. Did this happen in a vacuum? Or did the legislature and executive - consisting several public servants protected by sanction - react? They did, and pretty quickly. In 1969 the government passed directions to the Central Bureau of Investigation that prevented it from starting any investigations against high-ranking public servants before getting permission. This was the 'Single Directive'. The thinking is clear - courts are applying a hindsight test which does not filter well, so lets go further back in time and filter at the institution of criminal cases. While doing this, the government impliedly admitted that the sanction protections are too broad to justify the rationale of their protecting public decision-making. Of course decision-makers must be treated differently from the ordinary rank-and-file bureaucrats, and so the latter would not be granted these protections.    

The Supreme Court did not agree that the public servants could be segregated like this. When the Supreme Court held this arrangement illegal, the government responded by re-introducing it almost immediately. When the Court slapped on the government's knuckles it retreated and withdrew the proposed change. But in 2003, it went ahead and amended the law to give it firm footing. While India's major political parties often don't look eye to eye, these moves were made both by the Congress and BJP led governments, showing a fairly clear indication of legislative will. What happens next? This statutory provision [Section 6-A of the Delhi Special Police Establishment Act 1946] was also struck down as invalid by the Court in 2014. On both occasions when the court struck down this protection, it did not overturn the Matajog decision to find sanction requirements were bad for creating an invidious classification between persons. Instead, the Court held that protecting only a class of bureaucrats was bad. How do you read this? Is the Court saying sanction should be limited to instituting prosecutions as done in the CrPC? Or is it saying that some public servants are not more equal than others, but all public servants are more equal than the rest of us. The second is a fair reading, and it was something the Court had agreed to in MK Aiyappa while handling sanction requirements under the Prevention of Corruption Act 1988 (a blistering commentary on the case can be read here). If the court reads the law this way, does it come as a surprise that others, such as the Rajasthan and Maharashtra governments, are doing the same? 

Past, Present, but what of the Future?

Maybe it is just me, but I can't help but notice patterns in how the law on sanctions to prosecute has been developing over time. There is a constant back and forth between the court and government - the court restricts its scope, the government expands it again. All of this was happening within the bounds of the constitution until the Supreme Court upped the ante and held the Single Directive to be unconstitutional in 1998. The government had been running the initiative for nearly thirty years to ensure lax sanction rules did not affect decision-makers, and the Court decided it didn't matter in the language which it could use - the Constitution. Was it inopportune? Perhaps. If the Court had a problem with having a sanction requirement then it should have said it outright. If it didn't, then there were better methods of dealing with the situation than refusing to acknowledge the few merits in the Single Directive scheme and starting a power tussle with the government. Today, because of how the Court avoided the forest for the trees, I think it will be hard for the Rajasthan High Court to hold that needing permission to start an investigation against public servants is unconstitutional. That might just convince the remaining BJP led states to pass similar laws, eventually bringing us back to the Supreme Court. Might the Court finally reconsider its position on all public servants being a separate class from the public?  

The Shifting Sands of Adversarial and Inquisitorial Systems in India

In his Hamlyn Lecture titled The Common Law in India delivered in 1960, MC Setalvad argued that the Indian criminal process contained several similarities with the British system. For him, India had adopted the Adversary System of Trial (page 45-47), which was a core precept of the Common Law. He went ahead to observe: "Equally rigorous is the application in India of the rule of Common Law which is said to put justice before truth. The decision, whether in a civil or a criminal trial, has to be rendered solely on the evidence put forward by the tribunal." To recap, this Adversarial system is in contrast with the Inquisitorial system that was a hallmark of Continental Europe. There, the judge has a far more active role to play towards eliciting the truth rather than merely administer justice.

Contrast his observations with those in the Order dated 26.08.2016 in CC No. 01/2016 titled 'CBI v Gondwana Ispat Ltd & Ors' passed by the Court of the Special Judge appointed for the 'Coal-Block Allocation Scam Cases'. Throughout this 27 page order, the Court is at pains to remind us that "the ultimate quest of a trial is to ascertain truth and this journey of ascertaining the truth cannot be defeated merely on the whims and fancies of an accused." This rhetoric is in place to support logic relied upon by the Court to conclude that the fundamental right against self-incrimination under Article 20(3) of the Constitution is not available during the process of admission-denial in a criminal trial. Though the Special Judge does not invoke the term 'inquisitorial', the extract would snugly fit into the court orders from Continental Europe where countries adopt the inquisitorial method.

So, what is it to be for India, the adversarial or inquisitorial? The Criminal Procedure Code 1973 [Cr.P.C.] and the Indian Evidence Act 1872 [IEA] offer our criminal process a convenient shape-shifting ability. So the only answer is, well, either that India has a unique method that combines bits of both worlds. This intermixing is quite thorough and can be found in the investigation stage as well. When the police are investigating the courts are not supposed to interfere and decisions since the Privy Council verdict in Nazir Ahmed [AIR 1945 PC 18] offer support for this view. But together with this we have Section 156(3) in the Cr.P.C. which empowers a Magistrate to direct the police to investigate. This was extended to include a power to monitor investigations by the Supreme Court in Sakiri Vasu [(2008) 2 SCC 409] to further bump the shift away from an Adversarial System. One might argue that the views of Mr Setlavad were restricted to trials and so this is an unfair criticism. But even in trials, we have devices such as Section 165 IEA, which allow a court to ask any question from a witness or summon any document, regardless or relevance. Since this had always been on the statute-book, we can rightly question whether Sakiri Vasu is nothing but a restatement of inquisitorial tendencies that have always been around.

The Coal-Block Allocation Scam Cases
If an outside observer, akin to Professor Hart's companion throughout The Concept of Law, came to India and only looked at the trials before the Court of the Special Judge appointed for the Coal-Block Allocation Scam Cases then I am quite certain she would go home with a view that we are steeped in the inquisitorial tradition. The proceedings have explicitly and / or impliedly carried further the views of decisions such as Sakiri Vasu to bring about some very interesting consequences. As I have argued above, this is something that is bound to happen owing to the inherently ambiguous stance in our laws, and isn't a problem in itself. Ambiguity in law generally nourishes problems though, and it has so happened on a few occasions in these proceedings. I focus on two of these here, one from the realm of investigations and the other based on the trial.

First, is the device adopted by the Court of refusing to accept Chargesheets / Closure Reports filed by the CBI if it thinks certain areas have not been covered. Effectively, the Court tells the CBI to further investigate and then come back with a fresh report. In some cases, the Court has rejected multiple Closure Reports before it took cognizance once the CBI had filed a Chargesheet that it deemed acceptable (just search "coal closure reject cbi" in Google). Given that the same court is going to hear the case, issues of bias naturally arise. If the court thrice rejected the CBI view that certain persons had not committed any offences, would a trial before the same court not give rise to the appearance of a reasonable apprehension that the court is biased against the accused persons and they would be denied a fair hearing? In my opinion it would certainly give rise to a reasonable apprehension, warranting the case be tried by a different judge. In fact, this problem is also present when a Magistrate rejects a Closure Report to summons the accused persons for trial. These proceedings can perhaps be seen as nothing but the logical conclusion of that process in a world where Sakiri Vasu allows Magistrates to monitor investigations.

Second, is the use of Section 294 Cr.P.C. by the Court, which was referenced at the beginning of this post. This provision concerns the process of admission-denial of documents, and was the issue at hand in Gondwana Ispat. It was argued there that accused persons could not be forced to make any statement under Section 294 Cr.P.C. as it contravenes the guarantee against self-incrimination. The Court held otherwise and concluded that Section 294 Cr.P.C. consciously excluded a right to silence for accused persons. The Court reasoned that allowing an accused to remain silent would defeat the very purpose of Section 294 Cr.P.C., and the Legislature was aware of Article 20(3) but intended to exclude it from this area. This conclusion was largely driven by drawing an analogy with Section 313 Cr.P.C. (which deals with the statement of an accused, given without oath), which expressly speaks of an accused choosing to remain silent when faced with a question. This argument is incorrect for it holds a statute can be interpreted to exclude the application of Part III of the Constitution. This is contrary to the very idea of Part III. Whether or not there are specific allusions to a right to silence within the Cr.P.C., it nonetheless remains subservient to Article 20 of the Constitution.

The other logic employed by the Special Court is more interesting for this post - that allowing an accused to remain silent and possibly adopt different stands would not only "lead to an unending trial but it will rather cause impediment in the course of justice as it will be extremely difficult for the Court to render justice based on truth." I have read this a few times and yet, I cannot appreciate the genesis of this concern. When, if ever, would an accused willingly adopt multiple stands in a case in respect of evidence? But assuming such an example does exist, and the accused is happily changing stands as frequently as players change football clubs, from where is the Court deriving an obligation on the accused to help render its justice based on truth? Historically, an accused was not a competent witness till the late 19th, early 20th century. And even then, it is only if the accused chooses to come in the witness box. Given that answers under Section 294 Cr.P.C. are also made under oath, the Court has done indirectly what could not have been done directly.

What's in a Name?
A lot, clearly. MC Setalvad was not entirely accurate to state that India wholeheartedly adopted the Adversarial System. On a deeper scrutiny, it is clear that our criminal process has always had traces of both, the Adversarial and Inquisitorial Systems. Such an equivocal position is far from ideal, and the problems with having backdoors are being realised in the litigation that is currently taking place in the Coal-Block Allocation Scam cases, and to an extent occurred before in the 2G Scam as well. There is one common element between these settings, and that is the pervasive involvement of the political with the judicial branch of the State. Could it be that the court is more willing to resort to its inquisitorial powers because it is pressurised to deliver results? We may never know. What we do know is that in its efforts to deliver truth-based justice, the judiciary is clearly cutting far too many corners. The 2G Scam cases saw the rights of accused persons being traded for nebulous values of 'public interest' and 'speedy justice'. These have been further employed in the Coal-Block Allocation Scam hearings to achieve new results. As things stand, all of these issues are pending before the Supreme Court which means nothing is settled. But, with the speed at which cases are being heard before the Special Court in Patiala House, it may be that 'speedy justice' comes at a cost too dear.

(Disclaimer: The author has assisted in proceedings arising out of the Coal Block Allocation Scam cases, arguing for the accused)

Snippet - Constitutional Evasion and the CBI's Dubious Legal Basis

The Indian Constitutional Law and Philosophy Blog put up an important and timely opinion on what appears to be an emerging doctrine of constitutional evasion, where the Supreme Court is creating an effect by simply not deciding issues of seminal constitutional importance. Demonetisation and Aadhar were taken as two examples, and in this snippet I offer a third - the legal status of the Central Bureau of Investigation.  

The CBI is a curious entity and was once before the subject of a Guest Post on this Blog. It does not have any statutory basis and traces its foundation to a Notification passed in 1963 (Resolution No. 4/31/61-T dated 01.04.1963). Its precursor was the Delhi Special Police Establishment [DSPE], created under the eponymous 1946 statute. The CBI started out under the control of the Ministry of Home Affairs, but Granville Austin in Working a Democratic Constitution notes how the Prime Minister came to exercise far greater control over the Agency during Mrs. Gandhi's tenure at the helm (pages 190-191) and then went back to the Home Ministry under the Janata Government (pages 454-455). He also notes how the Agency was often used to carry out political vendetta in the 1970s, both by the Congress as well as the Janata Governments. The lack of autonomy in the CBI has been a consistent theme in the five decades since, perceived to be constantly trading allegiances, with echoes being seen by papers in the raids conducted in the office of the Delhi Chief Minister in 2015. Nobody likes being maligned, and the CBI itself made calls for greater autonomy with past directors advocating the cause for the Agency to have a statutory basis. The Supreme Court has also been sympathetic to these pleas. It expressed great displeasure upon learning that CBI recommendations had been changed at the behest of ministers in relation to the coal blocks allocation scam, and went ahead and conferred greater autonomy to the Agency in September 2013.  

So far so good. On 06.11.2013, then, the Guwahati High Court famously passed an order holding the CBI was without any legal basis. In an impeccably reasoned decision, the Court held that the CBI could not be located in the DSPE Act. The Guwahati High Court did find the CBI to be distinct from the DSPE after tracing its legislative history as found in the file notings itself (paragraphs 45-49), contrary to what the Union of India asserted. Such an independent police force which conducted investigations and inquiries required statutory backing, and could not be the product of a mere Executive Notification. It refused to lend weight to an argument made by the Union which effectively sought non-interference despite illegality as things had remained this way for decades. In another part of the decision, the Court traced the Constituent Assembly Debates on the subject to show how the Framers never intended to confer investigative powers upon a Central Agency as has been done today (paragraphs 51 - 68), but it did not go ahead and consider the legality of the DSPE itself. 

On 09.11.2013, in a hearing conducted at the residence of the then Chief Justice, the Supreme Court stayed the decision [order available here]. This was understandable and fair, as thousands of investigations and prosecutions would have been thrown into the lurch if the CBI was suddenly disbanded. The problem is the lack of activity that the petition has subsequently witnessed in the Supreme Court, which is where the issue of Constitutional Evasion comes in. The case [SLP (Civil) 34834/2013], along with connected petitions, has been listed a total of eight times since 2013. Long dates came between the filing of submissions etc with the stay remaining operative. The order passed on 15.02.2016 converted the case to Civil Appeal No. 1473/2016 and notes that the hearing was expedited, but no subsequent date was given. On 11.11.2016, applications for vacating the stay were dismissed. No likely date of next listing shows up on the case status webpage as of today.

By prolonging the stay and refusing to hear the matter, the Court is inadvertently supporting the claim of the Union of India that things should not be interfered merely because they have been so. Rather, it would be in the national interests for a speedy resolution of these issues of seminal constitutional importance, that plague the premier investigating agency of India. 

Aircel-Maxis, International Law and Judicial Restraint

A Three Judge Bench of the Supreme Court today passed this six page long order in an application filed by the Centre for Public Interest Litigation which sought directions in the Aircel-Maxis case. The order made headlines in India (Hindu, Business-Standard, NDTV, Indian Express) with extracts of the terse observations in the order being carried. Most of these are focused on the conclusions in paragraph 10 that the sale of spectrum remains stayed. As I explore in this post, the Order is extremely troubling, illegal, contrary to national and international law, and yet another instance of the White Knight complex that many people have so often written about.

What's the case about and Why was there a Petition in the Supreme Court?

Not so long ago in 2012, the corruption scandal surrounding allocation of 2-G spectrum arrived on the scene and refuses to leave. Investigations are still on-going and are linking supplementary sales of spectrum to be part of the initial scam that allegedly involved Shahid Balwa, Sanjay Chandra, A. Raja and the like. One of these linked cases concerns the sale of spectrum by Aircel to Maxis in 2006. The CBI has alleged that this sale was vitiated by corruption and has filed a chargesheet against Dayanidhi Maran (the then Minister for Communications), Aircel, Maxis, and the responsible officers of these companies. The case is currently pending at the stage of charge before the Special Court hearing 2-G Scam cases in Patiala House, New Delhi. 

The 2-G Scam petition itself was filed in 2010 and continues to be pending. This Application - filed by the Centre for Public Interest Litigation - sought directions to prevent the sale of spectrum by Aircel-Maxis that was said to be on the cards. The Application stated (as per news reports) that allowing the sale would mean the accused persons would profit despite not appearing before the courts despite summons having been issued against them [This Blog had earlier discussed the issue of summoning foreign entities here].

The Order Passed Today

The news media reports on proceedings as they happen inside court and often differ from the eventual order that is published for proceedings online. Something like this seems to have happened here as well, but not to a great extent. Naturally, all that matters is what is in the order itself. 

The Court notes the background:

3. The predicament expressed in I.A.No.82/2016, and the eventual prayer made therein, emerges on account of non-service of summons on Mr. Ananda Krishna Tatparanandam (Accused No.iv) and M/s. Maxis Communications, Berhad, Malaysia (Accused No.vii), and the other accused referred to above (Accused No.iii and vi). 

4. In so far as, the instant aspect of the matter is concerned, the factual position depicted in the reply affidavit, filed on behalf of the Central Bureau of Investigation, reveals as under : “21. That on 31.08.2016, a letter was received by the Ld. Special judge from the Attorney General's Chambers, Malaysia, dated 17.08.2016, inter alia stating that upon consideration of the facts disclosed in the Request for Assistance and further clarifications supplied by the CBI, the requirements as per the provisions under section 20(1)(f) of the Mutual Assistance in Criminal Matters Act, 2002 [Act 621] were not fulfilled, and hence the requests to serve the summons could not be acceded to.” 

So, the Malaysia-based accused persons (not Indian) had not appeared in court due to non-service of summons. In cases like this, when investigation requires processes to happen in another country, we resort to Mutual Legal Assistance Treaties. India and Malaysia have one such Treaty, and the service of summons etc. would have to comply with this in order for summons to be served. If not, the recipient country is under no obligation to enforce service of summons. The Malaysian Act of 2002 referred to is the Malaysian domestic law on how to treat requests by Treaty states for assistance in criminal matters. Section 20 specifies when assistance is to be refused by the Attorney General, and 20(1)(f) states that the request for assistance shall be refused if the Attorney General is of the opinion that "the request relates to the investigation, prosecution or punishment of a person in respect of an act or omission that, if it had occurred in Malaysia, would not have constituted an offence against the laws of Malaysia". Paragraph 4 extracted above shows that non-compliance with this provision is what prevented the service of summons rather than the accused persons wilfully avoiding the process of law. Basically, it shows that the CBI is yet to satisfy the Malaysian Attorney General's office that the acts/omissions alleged are also crimes under Malaysian law.  

In the next paragraph, the Court notes:

5. It is imperative to ensure, in our considered view, that the process of law should not be permitted to be frustrated by non-service of summons to the accused. In order to enforce the presence of accused ... we propose to restrain, earning of any revenue, by using the 2G Spectrum licenses, which were originally granted to M/s Aircel Communications ...

The Court has permitted the accused to make representations before the Special Court (paragraph 8), and has instructed the Union of India to ensure publication of this order in two leading Malaysian newspapers (paragraph 9). Starkly, the Court states that "it will not be open to any of the accused, to raise an objection with reference to any monetary loss, emerging out of the proposed order."  

And All That is Wrong With it

A non-sequitur if there ever was one. That, in short, sums up what has happened here. After all, how else can one explain the Court noting in paragraph 4 that the non-service of summons is due to a failure on part of the Union to fulfil the requirements of the Mutual Legal Assistance Treaty, and then moving on to squarely placing the blame on the accused persons for their fault of residing abroad.

The Court seems to have conflated the domestic methods of ensuring service of summons as provided under Chapter VI of the Criminal Procedure Code 1973 [Cr.P.C.] with such process as applicable under international law which are covered in Chapter VII. This is apparent with the Court suggesting publication in Malaysian newspapers as if it were dealing with an issue of proclamations for absconders under Sections 82 and 83 of the Cr.P.C. If we go a bit further and see Section 105 Cr.P.C., it provides for the specific manner in which this service of summons must happen. 

Now, someone may argue that Article 142 allows the Supreme Court to do nearly anything it wishes so why not this? Well, while I strongly resist that submission itself and argue that nothing in Article 142 allows the Court to transgress existing statutory law, that still does not justify the violation of International Law. Adopting this ad-hoc method for serving summons and processes would violate India's obligations under the Mutual Legal Assistance Treaty with Malaysia. Action taken pursuant to these orders by the Indian authorities would be open to challenge, though I am not an expert on what shape that challenge may take. 

I still cannot understand the conclusions that the Court arrives at. But if we return to the idea that the judiciary has been burdened with expectations of cleaning up the system of corruption (White Knight complex), it definitely makes sense. So what if the Executive is proving unable to comply with the law? Or, in case of the National Anthem Order, what if the Executive wants to do something but is fettered by the law. The Judiciary seems to suggest that it is willing to go ahead and change the law itself, all for the cause of Justice. One interim order at a time - but please, no final judgments.

[this post was updated on 7 January to add the portions on the Malaysian Mutual Assistance in Criminal Matters Act of 2002]

Guest Post: Understanding the CBI

I am pleased to present a guest post by Ms. Deekshitha Ganesan, a Fourth Year student in the B.A. LL.B. (Hons.) Programme at NLSIU, Bangalore 

The Central Bureau of Investigation is commonly seen as India's premier investigation agency, tasked with solving the most challenging cases. This, naturally, has lead to an intense level of scrutiny of its every move - best seen through the constant media updates surrounding the allegations against the former Director. However, the actual workings of the Bureau: its statutory basis, funding, operational methods etc. are relatively unknown to most of us. Through this post, I wish to explain these rather lesser known aspects of the CBI, and highlight some major issues plaguing the functioning of the Bureau. 

History

In 1943, the Special Police Establishment ["SPE"] was established by Ordinance (No. XXII of 1943) to deal with those individuals taking wrongful advantage of the emergency conditions during WWII and enriching themselves at the cost of the Central Government. Soon there was a challenge to its validity, which led to passing of the Delhi Special Police Establishment Act, 1946 [“DSPE Act”]. The Act was in exercise of powers conferred upon the Central Legislature through Entry 39 of List I of the Seventh Schedule to the Government of India Act 1935. Subsequent to the statute, the SPE was transferred under the Ministry of Home Affairs and its functions were expanded to cover all Central Government departments. Investigations into matters of the state government needed their consent. In 1963, the Ministry of Home Affairs passed Resolution No. 4/31/61-T creating a Central Bureau of Investigation, and the functions of the SPE were transferred to the newly created Bureau. Today, the CBI falls under the purview of the Department of Personnel and Training [“DoPT”] of the Government of India. It has six branches/wings, one of which absorbed the erstwhile SPE.

Resources

With the CBI under the DoPT, until 2013 its budgetary allocations were subsumed under the allocation for the DoPT. In 2013, in response to an affidavit of the Central Government rejecting the CBI’s demand for greater autonomy, the Bureau pointed out the many layers of scrutiny within the DoPT to requisition money spent on basic facilities such as laptops for investigators on the field. Since then, the interim budget of 2014 and the 2015 budget have both included separate, specific budget allocations for the CBI. However, there is no clarity as to whether this was a result of a Supreme Court order.

Despite the limited financial autonomy, the CBI deals with a huge variety and volume of cases. This necessitated establishment of a Central Forensics Science Laboratory [“CFSL”] in New Delhi with 11 divisions, under administrative control of the CBI. The CFSL also has a Digital Imaging Centre to assist in the analysis of electronic evidence. In a controversial move, the Government Examiner for Questioned Documents [“GEQD”] was merged with the CBI to assist in the investigation of white collar crimes. GEQDs across the country argued they were pioneering organisations in the field of forensic sciences and that their documentation divisions and those of the CFSL function differently, which will make coordination difficult. Nevertheless, the Government went through with the decision in 2012. More recently, in May 2015, a new CBI Academy was inaugurated at Ghaziabad to decode information contained in Apple and Linux devices to aid in the investigation of bank frauds, cyber crimes, complex financial crimes, among other conventional crimes.

Expertise and Commencing Investigations

The history of the organisation makes it evident that its expertise lay in economic crimes, and this forms the bulk of cases handled by the Bureau today as well. However, being the sole investigative agency beyond the powers of the State Government contributed to a perception of the CBI as an "independent" organisation. Consequently, several sensitive cases regardless of their nature continue to be transferred to the Bureau owing to allegations of bias in investigations by the local State Police. How does the CBI operate? The division of labour between Union and State Legislatures means there is a need for specific consent from the concerned state before the CBI begins investigating in its territory [Section 6]. Even otherwise, the Union must specify by notification the offences/classes of offences which are to be investigated by the CBI [Section 3]. Therefore, the preliminary challenge to any investigation is the issue of consent. Recently, a Constitution Bench clarified that the requirement of consent does not affect the powers of the Constitutional Courts to order the Bureau to conduct an investigation in spite of any consent from the concerned government [See, State of West Bengal v. Committee for Protection of Democratic Rights, AIR 2010 SC 1476].

Another preliminary issue is that of obtaining sanction. Prosecuting public servants in India involves taking a prior sanction. In the case of the CBI, Section 6A of the DSPE Act was inserted in 2003 making it necessary to obtain a sanction even before beginning an investigation on allegations against certain officers. Apart from it being an unreasonable fetter on the CBI's investigative power, it was also argued that placing certain officers behind such a protection was unconstitutional under Article 14. The issue was referred to a Constitution Bench of the Supreme Court, and in Dr. Subramanian Swamy v. Director, CBI [(2014) 8 SCC 682] Section 6-A was struck down as unconstitutional. 

Conducting an Investigation

Investigation is required to be conducted as per the provisions of the Code of Criminal Procedure, 1973 and the Crime Manuals merely act as guidelines However, the CBI does not investigate all offences falling under a notification under Section 3. As per Chapter 1 of the CBI Crime Manual, there exists an arrangement between the State Police Force and the CBI on division of cases to ensure coordination and avoid duplication. This is to be seen in light of the fact that ‘Police’ is a State subject and Section 6 of the DSPE Act which requires permission to be taken for exercise of powers by the CBI in a State.

The CBI is empowered to conduct investigations based on complaints received from any person, including members of the general public. Upon receipt, the complaint is forwarded to the appropriate branch of the CBI. However, the most common way by which the CBI begins investigation in a case is upon complaints from the Central Government Departments, State Governments, Ministries and Public Sector Undertakings etc. In these cases, the procedure for registration and verification of the complaint is required to be followed. However, where the complaint itself mentions specific allegations and reveals a criminal offence that is fit to be registered as a Regular Case, the permission of the Competent Authority is required to be taken. 

Conclusion

The most important issue surrounding the CBI today is the debate surrounding whether a separate statute should be enacted to recognise its independence. At the moment, right from its constitution to the list of offences which it can investigate, everything is determined by the Central Government. Until very recently, the CBI needed the sanction of the Central Government to prosecute certain classes of bureaucrats. Many officers of the CBI have suggested that the Bureau's powers and autonomy should be along the lines of those granted to the Election Commission. Without a statute clearly defining the extent of the Bureau's powers, without removing the curbs on its powers laid down in DSPE and without amending the extent of the Central Government’s superintendence over the CBI, decisions like that of the Gauhati High Court in Navendra Kumar v. Union of India & Anr. [Writ Appeal No.199/2008, decided on 06.11.2013], will continue to be a reality.