The Hindu dated 27^th April 2013 in its editorial titled “Compromised Bureau of Investigation” presenting the executive and the premier investigation agency which functions under the executive in poor light is not in good taste. I wonder as to how the CBI director had regretted sharing of the status report with the executive as it is required to share the same with the judiciary. The union government, as India's central government is known, is divided into three distinct but interrelated branches: legislative, executive, and judicial.  

According to Article 53 of the Constitution, the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

According to article 74 of the Constitution, there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.

According to article 77 of the Constitution, under the sub-head titled, ”Conduct of business of the Government of India”, all executive action of the Government of India shall be expressed to be taken in the name of the President.

The executive, legislature and judiciary are the three sacred institutions under our Indian Constitution. The executive stands for governance, the legislature for enactment of law and the judiciary for justice. If the king (executive) rules his Prajas in righteousness and justice, then there will not be any role for the law maker and the judge. As such, the executive is seated on the driver's seat of governance. Any fatal attack on the driver driving the car will be suicidal for all the inmates of the car including legislatures and judges. If the driver does not perform his job perfectly, then advice and warning ought to be given by the other inmates of the car. You cannot pull him from the driver's seat. 

These days, opposition parties and media question the executive power in carrying on their constitutional functions under the pretext of exposing corruption amongst the political executives. Nowadays, when we talk of the executive, we think in terms of the political functionaries i.e. ministers. This view is erroneous. The executive is a multi-membered body, performing diverse functions in an unlimited manner, whereas the legislature and the judiciary perform their functions in a limited manner. The function of governance is with the executive only. 

CBI, the premier investigation agency is the investigation arm of the executive with police powers.  It is part of the executive, working under the government.  It is accountable to the executive and not to the legislature and the judiciary. 

The Central Bureau of Investigation (CBI), functioning under Deptt. of Personnel, Ministry of Personnel, Pension & Public Grievances, Government of India, is the premier investigating police agency in India. It is an elite force playing a major role in preservation of values in public life and in ensuring the health of the national economy. (Just see the CBI website). Please note under the Special Police Establishment Act, 1946, the superintendence of the Delhi Special Police Establishment i.e. CBI insofar as it relates to investigation of offenses alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) shall vest in the Central Vigilance Commission. CBI and CVC are the extended arms of the executive in dealing with corruption in the Union of India. 

The legal powers of investigation of CBI are derived from the Delhi Special Police Establishment Act 1946.  The question is whether the executive i.e. government has the legal power to vet the draft report of CBI to be submitted to the Supreme Court.  It is not the motive of the political authority that has to be questioned by the opposition political parties and by the media like The Hindu. It is the duty of the executive to exercise its legal powers to ensure that a factual report interpreting the legal provisions with regard to the functioning of the premier investigation agency  is submitted by the agency, which works under it, to the Supreme Court. 

The CVC which has the power of superintendence of the Delhi Special Police Establishment (CBI) can definitely vet the draft report to be submitted by the premier investigation agency to the Supreme Court. The CVC is also part of the executive.

The status report is not the final investigation report. It merely states about the progress of investigation. The Union Law Ministry is the legal arm of the executive.  The Union Law Minister or the Home Minister can call the Director of CBI for discussion of any case that affects the health of the national economy.  While attributing motive to the government functionaries, you cannot question the legal powers of the executive under the constitution. 

It is high time the opposition parties and the Indian media had known the role of the executive power of the Union. 

Observations made by Supreme Court 

The observations made by the Hon’ble Supreme Court on 30th April 2013 over the issue of CBI sharing its status report with the government are rather disturbing. Under the Constitution, the powers of the executive, legislature and judiciary are well defined.  Of course, when there is political interference to shield the corrupt from the CBI investigation, the highest court of the land has every right to question the role of the premier investigation agency which is part of the executive.  Though the Supreme Court had specifically wanted the CBI not to share its status report with the government fearing that it’s fair investigation might be jeopardized, there appears to be a clash of jurisdictions between the judiciary and the executive.  At this premature stage, we cannot come to a definite conclusion that sharing of merely the status report which deals with the progress of investigation would in any way hamper or influence the course of investigation because investigation of a case is based on collection of evidences. 

The executive has its moral obligation to the nation to ensure that investigation by the premier investigation agency is fair and just. The judiciary has its moral obligation to the nation to ensure that no outside pressure is exerted on the investigation agency in dealing with the corruption in high places. 

It is reported in the press that the CBI Director, Mr.Ranjit Sinha in his affidavit to the Supreme Court has submitted on 6th May 2013 that the Union Law Minister Ashwani Kumar had made changes in the draft status report by deleting a sentence that included the legality of coal allocations in the scope of CBI enquiry and that the central theme of the report was not changed.

In this connection, The Hindu has observed in its editorial "Letting go of the leash" that "the CBI will also have to answer questions on the nature of the changes sought by the government and whether some of the changes sought were too serious and damaging to the larger case to be incorporated into the status report." On the same editorial page, The Hindu has published a wonderful article written by Mr.Harish Khare, a senior journalist, political analyst and former media adviser to Prime Minister Dr.Manmohan Singh titled, "The false allure of liberating CBI". In this article, Khare has finally observed that "Before we succumb once again to the allurement of installing unelected gods as our saviors, let us just remember that is easy to proclaim and grab “independence” but it is much more difficult a task to produce the requisite institutional culture, anchored in balance, fairness and rectitude. That balance can be produced and enforced only by democratic processes of accountability. This balance can neither be produced nor imposed by a court."

Just because the CBI had shared its status report with the executive in this particular case which, according to The Hindu, resulted in the Union Law Minister deleting certain sentences concerning "the screening committee not preparing a chart about the applicants" and about the "scope of enquiry with respect to legality of allocations while amendments in law were in progress", to my mind, the scope of the investigation as registered in the FIR has not been changed. The alleged alterations pertained to a procedure of allocations and not to hushing of facts regarding culpability of officials involved in this case. Let the CBI investigate this case thoroughly and let us not pass judgments at this premature stage. 

We cannot expect the judiciary to guarantee the CBI the institutional freedom and autonomy which is in the exclusive domain of the executive under the Indian constitution. No doubt, the Supreme Court has every right to monitor a particular high profile case like this and to ensure that investigation is fair and just. It is for the executive to ensure that its investigation wing armed with police powers performs its legal duty in a righteous manner.

We cannot afford creating a monster with independent and absolute powers.  We cannot expect the judiciary to monitor each and every case under police investigation as it has other more important issues than corruption to deal with. We cannot dilute the powers of the executive who is in the driver's seat of governance.  Let the executive govern the nation with righteousness and justice. We need to correct the "erring" executive but should not clip its wings.

Latest development

The Hon'ble Supreme Court observed on 9th May that the heart of the report was changed on the directions of the government and that the government will have to take its permission before it interacts with the CBI. 

The Supreme Court has finally conceded, "ministers can ask for status of investigation, but cannot interfere with it".

The court has also said that it wants proper investigations in the case, and laid down a three-pointer for the agency:

1.    Should a retired judge supervise the investigations?

2.    Does the CBI need more technical experts to probe?

3.    Or should CBI alone should investigate the case?

Further hearing of the case has been fixed to be held on 10th July 2013.

- Job Anbalagan,

Email: jobanbalagan@gmail.com/mobile: 09810806532