A succession of serious crimes in the last few decades, including scams of different types involving politicians and others, and the way these cases have been handled, has thrown the spotlight on the Central Bureau of Investigation (CBI), the Enforcement Directorate (ED), the Directorate of Revenue Intelligence (DRI) and other investigative agencies. Instances of blatant political and bureaucratic interference; arbitrary and selective sections; high-handedness and misuse of power of investigation and prosecution; deliberate delays and foot-dragging have been so rampant that the Supreme Court has been constrained to observe that “executive powers have been misused for extraneous considerations.”
The Supreme Court is of the view that the CBI, ED, DRI and other investigating agencies should be made autonomous. Autonomy of functioning and protection from interference are very essential and important, the Apex Court said, while suggesting that the agencies should have total ‘operational independence’ and should not be answerable to any functionary of the Government. However, the question of accountability remains. Today these agencies are, in fact, accountable to no one, either for performance or slip-shod investigations of excesses committed by them. In fact, there are allegations that agencies like the ED have become a den of corruption and extortion rackets.
To make these agencies more accountable, legal experts say, it is essential to make a distinction between various categories of offences. There is a broad category of offences relating to terrorism; trafficking in drugs, arms and human; sedition and the like, and a second category consisting of various types of economic offences. The laws relating to the second category and, powers given to the investigative agencies should be different from those in the first. In respect of economic offences below a certain amount, there should be provision for penalty alone and not for prosecution. Where raids have been conducted illegally, or a case is made out unreasonably (which does not stand the test of law) or is weak on facts, the officers responsible should also be held accountable and punished severely.
The raids should not be publicized, as is currently being done. Even the courts have made observations about this several times. If leaks are made to the news media, the agency must be held accountable for it and punitive action should be taken against the officers responsible. Also, the citizens should be entitled to claim financial damages and other remedies from the government.
At present, these agencies enjoy enormous powers. For example, even a junior officer in the ED has powers to arrest a citizen without assigning any reason, and even before charges are established. Such draconian powers are abused by the agencies by way of creating a large number of cases amidst fanfare and publicity, and gradually using these powers to extract favours and extort money from the unsuspecting victims.
When a case is taken up for investigation, it must be completed within three months and a decision taken either to drop the case and close the file, or go for adjudication or prosecution through issue of show cause notice and framing of charges. If for any reason, it cannot be completed within three months, permission may be given only in certain deserving cases and that too, through a monitoring authority established for this purpose.
Today, bureaucrats, politicians and judges are protected and action cannot be taken against them without the permission of the concerned authorities. No such protection is available to a citizen. Some mechanism should be thought of in this direction also.
There should be a mechanism by which the citizen or a government employee can disclose the excesses committed by bureaucrats wielding power or by the officers of the investigating agencies which hides the identity of the complainant; else, they would be afraid to make any complaint against senior bureaucrats. Perhaps the system may provide for investigation of the investigating agencies by either the Lokpal or an ombudsman.
The Apex Court has played a crucial role in not only ordering ailing investigating agencies to do their job of investigation with as little outside interference as possible, but also holding them accountable for what they do and the manner in which they carry out the investigations. This was made possible by the courts monitoring such sensitive cases (Hawala, Indian Bank case, Bihar Fodder scam, besides the recent 3G Spectrum scam, Coal Allocation scam, Black-money laundering case, et al). but this was by exception and it is not to be construed that henceforth courts could or should monitor all such cases. As the courts themselves have made clear, the primary responsibility for supervising and monitoring the functioning of the investigating agencies rests with the executive and not with the judiciary. It is only after the apparent failure of the former to perform its role appropriately that the judiciary had to step in.
The public debate that followed, will hopefully lead to changes in the structure of investigative agencies, their accountability along with the checks and balances that are needed so as to create a more credible, more human and at the same time, more purposeful investigating mechanism that would function efficiently and without any bias in the interest of justice and within the law. The responsibility for creating such a mechanism now lies solely with the legislature, and the implementation of the legislation and the institution of appropriate mechanism, as intended, lies with the executive.
The Supreme Court has only played the catalyst’s role of providing the kick-start to this very essential reform. The time has come for the legislature and the executive to play their role in the interest of democracy.
(The writer is a freelance journalist)
