Debating India


CBI and national security


Monday 3 May 2004, by RAGHAVAN*R.K.

It will be judicious to expand the infrastructure of the CBI, a tried organisation with a lot of credibility, and give it the responsibility of handling cases involving national security, rather than create a new Federal Law Enforcement Agency.

THERE are speculations that the Government of India will be talking to State governments again, possibly after the Lok Sabha elections, on the need to create a Federal Law Enforcement Agency (FLEA) to handle cases involving national security. I suppose the outcome of this renewed exercise, after having failed at least twice before, will depend greatly on the alignment of forces in the post-election scenario. This political dimension apart, the move has a number of implications for law enforcement at the national level. I am in particular concerned over its impact on the Central Bureau of Investigation. Already some journalists are gleeful over the prospect of the CBI being "cut down to size". One worthy is excited that the CBI’s days are "numbered"!

There are two issues here that require to be explained for the benefit of the lay reader. Why should the States be addressed when what is contemplated is only a Central agency? Secondly, why cannot the CBI continue to look after such cases?

Under the Seventh Schedule, Item 8, of the Constitution of India, `police’ is a State subject. If the Centre, therefore, desires to create an agency that is labelled as a `police’ force, enjoying all the powers of investigation provided by the Criminal Procedure Code (CrPC), it can do so only with the concurrence of the States. This is the reason why the CBI, which draws its powers from the Delhi Special Police Establishment Act 1946, cannot operate in a State without the latter’s blanket or case-by-case consent.

In the past, we have had the ludicrous situation of one or two States withdrawing their original consent to the CBI after an unsubstantiated suspicion that the Centre was using the Bureau for fixing its political opponents. Another State was known to be sticking to its stand that it would give only a case-by-case consent even if those investigated were Central government employees functioning in that State. Nothing can be more preposterous than this. The incalculable damage done to the task of successfully prosecuting a corrupt public servant has not altered that government’s truculent stand. The point is that as long as the Constitution promotes this lack of will to cooperate, an attitude that almost borders on hostility to a Central agency, New Delhi cannot set up a new one even if it genuflects before all the States. The only alternative will be to bring the proposed creation under "Central Bureau of Intelligence and Investigation", a subject that figures under the Union list. Even in such a case, the new outfit cannot be a police agency.

Here I must refer to a suggestion made somewhat to this effect several years ago so as to free the CBI from the caprice of the States. Since it is the Delhi Special Police Establishment Act that clothes the CBI with its authority, the latter is legally reckoned as a police force. The proposal made once upon a time, the one I am now speaking about, was to give the CBI all the powers of investigation such as arrest and seizure embodied in the CrPC through a special legislation and without actually calling it a police organisation. Possibly, psychologically speaking, the CBI set-up at the time the suggestion was made was not ready to `depolice’itself! Hence the proposal died a natural death within the CBI itself.

The States’ opposition to the idea of an FLEA is substantial and unqualified. This is because they see a ghost behind the Centre trying to exercise authority that was ordained by the Constitution for the States. It doubtlessly highlights the sense of insecurity that haunts many Chief Ministers. It also speaks volumes for the dubious track record of New Delhi, especially those following the imposition of the Emergency in 1975. Under the present dispensation, even if political fortunes change drastically, I cannot see any Chief Minister easily changing his or her stand to give a seal of approval to the FLEA. Chief Ministers would prefer to live with the CBI than contend with a new agency. This brings me to two questions: What will be the charter of the proposed organisation? What could be the singular benefit that will accrue to criminal investigation by such agency?

The rationale for FLEA flows from the growing threats to national security from the hands of the terrorist. The worsening of the Jammu and Kashmir situation beginning from 1989, the horrendous Mumbai blasts of 1993, the hijacking of an Indian Airlines flight in December 1999 and the more recent attack on Parliament in December 2001 had all unsettled the scene beyond belief. They pointed to concerted efforts from across the border to subvert the country’s stable political structure.

A few attempts to secure sensitive information through infiltrants into the defence forces for use by unfriendly neighbours further highlighted the need to tighten up the intelligence and enforcement machinery for protecting our information assets and frustrating enemy manoeuvres. All this led to the feeling that more was to be done to quicken investigations into available leads from registered cases that revealed a foreign hand. Specifically, cases of treason and violence coming under the Indian Penal Code, and incidents attracting the provisions of the Arms Act, Indian Explosives Act, and similar legislation with a security connotation required to be handled expeditiously and with dexterity. The same sense of urgency and expertise was needed with regard to investigations under the Official Secrets Act.

This demand for professionalism and speed is unexceptionable. It requires serious attention that would point to a new resolve to prevent a happening of the scale of 9/11. This is the background to a move to create an organisation that was expected to take up the gauntlet thrown by terrorist outfits. I will be out of my mind to question the logic behind the proposal. I have, however, my own reservations over the belief that an FLEA will have to be created at the expense of the CBI and that the former will somehow be superior to the latter in terms of successful prosecutions.

Those who are for an FLEA are convinced that the CBI cannot deliver the goods if new dynamism and resolve were to be imparted to investigations impinging on national security. They believe that the CBI is overburdened with anti-corruption and conventional crime cases, and cannot therefore fill the bill. Undoubtedly, an element of truth exists in this perception. It must be remembered that the CBI started off as an essentially anti-graft outfit. In course of time, ordinary crime was also dumped on it. This was because State police forces were found inadequate and ill-equipped to deal with important inter-State crime. There was further the requirement for scrupulously non-partisan investigators who were selected nationally and were not influenced by narrow parochial considerations. It is now conceded that the CBI’s resources are unbelievably stretched and the agency is finding it difficult to attract talent from the State police except at the Indian Police Service officers’ level. But then, can sheer overload of an existing agency provide the justification for a new one which is also likely to be swamped in no time by too many investigations? Will it not be judicious to expand the infrastructure of the CBI, a tried organisation with a lot of credibility, rather than set up a new body?

ASSUMING that the States give their nod to the FLEA, the first issue that arises is, how does one find the enormous manpower it will need? At the IPS level, already, except the CBI, all other Central Police Organisations (CPOs) are finding it difficult to fill middle-rung positions. I am not all that sure that the FLEA will reverse this trend of definite reluctance of IPS officers to come to Central jobs. To fill the cutting-edge level positions that will actually do the investigation work in the field, what will be the FLEA strategy? We cannot obviously allow any depletion of CBI’s existing resources by transferring some of its manpower to the FLEA, which will not also get non-IPS officers in the ranks of Deputy Superintendent and Inspectors from the State police. As a result, it will have to go for massive open market recruitment. What it will get through such a labourious process will be raw hands, totally innocent of the rudiments of investigation. Such a pool will have to be trained for several years before being asked to take up responsibilities for investigation and associated field work. What does one do in the interregnum? These are inescapable problems that the Government of India will have to ponder before taking any decisive step to form the FLEA.

Here I must refer to an interesting development in the United Kingdom. In the backdrop of 9/11 and the real terrorist threat to that island, particularly after the collaboration with the United States in Iraq, there had been a demand, for some time, that the country should opt for a Federal Bureau of Investigation -like body that will ensure swift action. This was expected to take care of the absence of a single national police force in the country that would coordinate efforts in a real contingency. Surprisingly, what was announced a few days ago in London by the Home Secretary fell far short of this need. The U.K. will now have a Serious Organised Crime Agency (SOCA) that will replace the existing National Criminal Intelligence Services (NCIS) and the National Crime Squad (NCS). The investigative functions of the Home Office and the Customs & Excise will also be handed over to the SOCA.

Interestingly, anti-terrorist operations will continue to be the responsibility of MI 5 and Scotland Yard’s Special Branch. What do we learn from this? We should not succumb to the temptation to copy blindly another country’s system, although we can definitely learn from others’ experiences and adapt these selectively over a course of time to suit our ethos and needs. This is why I would prefer to expand the CBI’s resources to take up fresh responsibilities rather than create a new body. The CBI’s wisdom and its unified control are invaluable assets to meet the challenges posed by inimical forces that are trying to destabilise us politically and economically. Given additional facilities and incentives, the CBI could be expected to rise to the occasion. Sharper performance will win for the CBI all-round confidence and put paid to all efforts to raise a new force.

See online : Frontline


in Frontline, volume 21 - Issue 05, February 28 - March 12, 2004.

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