There is no doubt that Parliament will have to enact a new law before an “independent” agency can be set up to bring the Central Bureau of Investigation, the Serious Fraud Investigation Office, the Enforcement Directorate, the National Investigative Agency (NIA), the Directorate of Revenue Intelligence and the Narcotics Control Bureau under one roof, according to the 48 th CJI N.V. Ramana. These agencies often probe the same crime so that evidence is diluted, resulting in a few alleged radicals becoming MPs.
But before this new law can even be drafted, several other laws which regulate the working of the police in the 28 states and eight union territories of India will have to be revamped or repealed. Foremost among them is The Police Act, 1861 which comprises 47 sections and has outlived its utility. There are other laws such as The Police Act, 1949, The Police Force (Restriction of Rights) Act, 1966 apart from the Delhi Special Police Establishment Act, 1946. Homogenizing these laws into one unified law is a mind-boggling task.
CJI Ramana suggested setting up an independent agency while speaking at the 19th D.P. Kohli Memorial Lecture in Delhi recently. He divulged how IPS officers were hounded after a change in government. When you try to endear yourselves to the powers, (sic) you will have to face the consequences. We need to reclaim social legitimacy and public trust. To do that, we have to break the nexus with the political executive, he said.
Law and order comes under the state list in the Constitution which is why over the decades, 50 chief ministers from different states have ensured their cronies get away with cheating, rape, and murder. The DGP of each state is appointed by the cabinet over which the chief minister presides. And if an incumbent DGP or police chief does not toe the line, he will be sidelined. Parambir Singh knows that very well as does a former Maharashtra DGP Subodh Kumar Jaiswal who opted to leave Maharashtra and was later made CBI director.
And these 28 DGPs, like Jaiswal, know the secrets of the CBI, IB, and RAW because they have worked with one or other of these agencies before reverting to their state cadre as DGP. The Supreme Court handed over the Parambir Singh probe to the CBI far too late because vital evidence against former home minister Anil Deshmukh lying with the Maharashtra government may have been destroyed. Deshmukh allegedly forced renegade cop Sachin Waze to collect Rs. 100 crore per month from restaurants and bars in Mumbai but Waze will not squeal against his political masters who must have promised to go easy on him if he toed their line. And this is exactly what he may do.
Unless he is administered sodium amytal or sodium pentothal which will temporarily obliterate his ability to lie, Waze will protect his top boss Anil Deshmukh. And the latter will ensure the case against Waze will be diluted. While the Caged Bamboozlers of India, more famously known as the CBI, will watch helplessly. The late CBI director Ranjit Sinha, who died last year of Covid-19, used to allegedly meet the coal scam accused in his home and publicly agreed with the apex court that his agency was a “caged parrot” of the government.
This is why the Delhi Special Police Establishment Act, 1946 needs to be revamped to allow the CBI to investigate corruption cases against top state ministers and bureaucrats without seeking sanction from the state governments. Till date, nine states have refused to approve the CBI, the latest being Meghalaya. Maharashtra is one of these nine states and it appears unlikely Deshmukh will ever be convicted in the Rs 100 crore extortion case.
But in the final analysis, all investigative agencies report to their political autarchs who mercilessly exploit them. CBI directors who have not toed the line of their home ministers have been transferred as they have confessed in their books. The most recent example was Alok Verma who was at loggerheads with Rakesh Asthana, who allegedly toed the government line. And the government, which oversees everything, decided to step in just as it does when some advocate or judge who is inconvenient has been recommended for elevation as a judge. Like Gopal Subramaniam and Justice Akil Kureshi, whom the government did not want elevated to the Supreme Court. And the collegium acquiesced. During his talk, CJI Ramana said the investigative and prosecution wings of this incipient agency should be separated to end multiplicity of proceedings, dilution of evidence, contradictions in deposition, jailing of innocents. But with the greatest respect to the erudition of CJI Ramana, even today, the investigative and prosecution arms of the corrupt state police are separated from the prosecution.
It is the CBI or the ED or the state police who investigate a crime and after a charge sheet is filed, the Public Prosecutor takes over. But both the police and public prosecutors come under the home department of either the state or the central government. Independence is a chimera, whether this new autonomous agency is set up or not. And Rohini Salian, the special public prosecutor, who alleged Suhas Warke, SP in the NIA, told her in 2015 to “go easy” on the 2008 Malegaon blasts case, knows that very well.
If Parliament heeds our erudite CJI Ramana, the new law will have to ensure there is a bulwark between the investigative and prosecuting agencies which will have to be barricaded from the government. That can only be done if the head of this so-called independent probe agency is not appointed by the government but by his own peers like the CBI director.
Like it or not, a majoritarian government is an autarchic government as retired judges like Madan Lokur, Jasti Chelameshwar, and Kurien Joseph know very well. But they are not speaking and when judges like Rohinton Nariman do speak out, their voices are muted by the cacophony of scoundrels who pose as nationalists.'