Friday, July 15, 2011

Exemption from RTI for CBI is unfortunate

B.R. Lall
Fomer Joint Director, CBI
CBI has been placed outside the ambit of RTI Act by an order of the Union Government under section 24. This is a very unfortunate step. Incidentally bonafide protection in the field of Investigation already exists under section 8 (h) of the said Act that provides “.(May kindly refer to the concerned section)...there shall be no obligation to give any citizen information which would impede the process of investigation or apprehension or prosecution of offenders...”
That applies not only to CBI or other central investigating agencies, but also to similar agencies of all the state governments as well. Ostensibly the move is designed from security and intelligence angles. It must be made clear in no uncertain terms that the CBI is neither an intelligence nor a security organisation.
It is an investigative agency assigned legally the job of exposing rather than concealing. By the very nature of its work the CBI has to be an open organisation notwithstanding the sensitive cases that it may be dealing with. The sensitivity in context of CBI is when it
deals with cases against high and mighty “... in the investigations of which one was expected to conceal more and expose less...”.It is this requirement on ground as against the legal or operational requirement of the CBI that such secrecy is needed.
Functionally as against an intelligence organisation that requires total protection from transparency, the investigation requires complete transparency after a certain stage. It is only the premature disclosure of information, during the investigation, that will give
undue advantage to the accused who may cover his tracks, destroy the evidence and scuttle the investigation. But once the charge sheet has been filed there is no requirement for any further protection.
Incidentally all the evidence to be relied upon is communicated to the accused person so that he may prepare his defence. Once it is filed in the court of law, the chargesheet becomes a public document. Some of the information collected during investigations and contained in the case diaries of the agencies may not be shown in the charge sheet as that may be related to the security of the witness or of the accused and therefore not advisable to be brought in the public domain. Such information and documents on which the prosecution does not rely, are already protected under the Criminal Procedure Code and the Evidence Act. However, to meet with ends of justice and to ensure that nothing is held back, the court trying the case has a right to look into all these documents and to use them as per its discretion.

The prevalent laws are adequate. Further secrecy, particularly for the CBI in Corruption cases is designed only to protect the people in high places. As such there is no necessity for any further privilege for any investigating agency in the country under the Right to Information Act. As a former CBI officer having fought the corrupt system from inside the government I concluded that the CBI under the control of the government has to conceal more than to reveal against its lawful role of collection of facts truthfully and impartially without any fear or favour.

The exemption given to the CBI is an extremely retrograde step; it is going backwards and is completely undesirable and redundant. This will only encourage criminality and corruption in the government and may not leave even the CBI itself untouched as more you keep things under wraps, the more liable the process is likely to be misused by all possible. This will only create another class of privileged people who would be beyond the operation of laws. Coming to the experience of other countries, such kind of protection has never been given to any agency in those countries that can boast of the Rule of Law or upholding of Human Rights. The question arises whether we are going back to the uncivilized days? Are we going to negate the rule of law that our constitution enshrines?

However, in India, such steps by the governments to protect the high and mighty have been a common affair. |I am tempted two cite two instances. First, the single directive that was issued in eighties to protect against any enquiry or investigations the officers and
politicians beyond the rank of Joint Secretary. The same was quashed by the Supreme Court as discriminatory and illegal in the famous Jain Hawala case (also referred to as Vineet Narain case) in December 1997 .Lo and behold in 1998 itself it was placed back on statue through the ordinance route and later enacted into the CVC Act in 2003. The other instance is that investigation abroad was to be conducted against a very highly placed accused. That required the Letter Rogatory from the Indian Court to the court of the country where the investigations were intended to be conducted. Under section 166 Criminal Procedure Code any officer in charge of a police station can apply for such a letter.
In 1993 a VVIP was to be protected, so the government modified the procedures by an executive order that CBI should apply to the court for the LR, only after obtaining permission from the government, thereby the possibilities of investigation abroad against any influential person were virtually closed, as it could deny and did deny such permission indefinitely.
Requests were made to government in this case for issue of LR in May 1993, but the Government of India did not permit till December 1996, the time I left the CBI. So there could be no investigations abroad, though the VVIP was accused of receiving kickbacks, keeping huge balances in banks abroad and acquiring a number of firms, in India and abroad. So much so, that power to apply for letter rogatory, vested in the SHO under the Code of Criminal Procedure, was withdrawn from the CBI and concentrated in Government of India and that too in the PMO (as was informally learnt), leaving nothing to chance. Though the papers were pending with Union Government for years, but still this fact could not be made public by the CBI, as that would amount to censure of the Government, which the CBI under the control of the government itself could not afford.

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