The general feeling is that the agencies of the state administering laws do not give justice when any report against the high and the influential is made to them. CBI being the premier agency has been in the focus. It is unfortunate, but true, that the entire administrative system suffers from feudal bias and from the mindset that higher-ups are not answerable for any of their wrongs. In the field of criminal justice system, it has acquired a special significance and that erodes the public confidence in the entire system.

Steeped in this mindset that the investigating officers are not supposed to cross the path of the elite, no wonder that during the last about sixty years no action has ever been taken against any higher-up despite rampant corruption. In the CBI in the famous Jain Hawala case, if my team and I,  had the audacity of recording the name of the ruling PM, a former PM and other influential persons; or in another case took steps to prevent a mighty influential person from going abroad, my DIG and myself had to pay. If I insisted that the CBI should follow the twofold principles of truth and transparency, the elite felt threatened and I had to be thrown out of the CBI. Under these circumstances, before taking the lawful action, even the honest investigating officers weigh the political fallout and the political and the administrative consequences, rather than the merits of the case. More thought goes in balancing their own position instead of collection of facts. Honesty of an individual public servant is not condemned or deprecated and is rather appreciated generally, but if it hurts the persons in authority, such individuals are expected to modify the definition of honesty itself, well in time. In the process the IOs develop a typical mindset, subservient to feudal values of protecting the high ups. In fight against corruption in high places an average investigator faces/evolves the following workable denominators:

    a)     Ignore/condone the corruption of the high and mighty including their family, relatives and friends. It is hara-kiri to think of any action against this category of persons unless they have fallen foul of the powers that be. If sometime the worst circumstances are created, then at least take a lenient view and give them enough time and advance information to defend themselves. Slowly, the new IO starts believing that any action of these persons constitutes no offence.

    b)     Against the above background, the IO feels paralytic and diffident, tries to play safe and takes no risk. If some misadventurer were to try otherwise, the system so carefully moulded, takes care of him by either jettisoning him or by conspiring against him to make him stand in the dock.

    c)     Statements of the honourables are normally recorded in such a way as does not embarrass them i.e. avoid recording his name and also those of the members of his family as far as possible. Even when under certain circumstances it becomes necessary to proceed against him, the golden rule is that leave out the escape routes so that it is possible to save him at a later stage.

    d)     Searches normally are not conducted into the cases involving the influential people. However, in absolutely unavoidable cases, the conduct of searches is delayed as far as possible so that the suspect could dispose of the assets or remove evidence. Looking into the assets pre-supposes searches. A timely search is highly dreaded a weapon as searches throw up solid incontrovertible evidence that is difficult to dispute even. Had searches been conducted, a wealth of information would have been culled out regarding disproportionate assets possessed by the high and mighty during the last few decades. Case of Kalmadi is the latest in the chain. However the sanctity of these unwritten feudal laws cannot be violated by the poor ordinary common law of the land.

    e)     Prosecution sanction is another big issue. It was perhaps provided as a safeguard in British India so that the loyal person, who worked in the interest of the empire, could be protected even if he committed some misconduct not affecting the empire. Ostensibly, it was to have a check against non-appreciation of departmental procedures by an investigating agency or the court. But now colonial rule is no more and loyalty to rulers is not a requirement. Even the ostensible rationale of Prosecution sanction has  disappeared in our free society supposed to be governed by the rule of law. Since it is the discretion of the appointing authority, even in the most patent cases Prosecution sanction can be denied. The influential manage its denial and frustrate all the efforts of investigators, the complainant, the witnesses and the common people. The denial of Prosecution sanction re-enforces the mindset that investigating bigwigs is practically a wasteful effort. In PG Thomas (CVC) case the prosecution sanction was not accorded for years.

    f)    Arrest is scrupulously avoided in case of the influential, even if necessary as the custodial interrogation leads to uncover not only so many facts, but also the entire mysteries which otherwise would remain shrouded in the dark recesses and pass into oblivion. Even the CBI records bear testimony to the fact that in identical circumstances commoners were arrested, but the big fish was spared. They could also use court processes to avoid arrest. If in certain cases the arrest becomes inevitable under public pressure, it is tailored to suit the convenience of such accused himself. The case of Raja fully bears it out.

    g)    In the worst of the scenario, if a chargesheet has to be filed, still it is ensured that it has many holes through which all the substantive evidence, can escape, and only that evidence which can be challenged successfully by the defence counsel in court of law is retained. So the evidence is not adequate to frame charges in the court of law. If, in some stray exceptional case, the charges are framed, weak evidence can take care during trial and the accused may emerge as a bigger hero as happened in Jain Hawala case.

    h)     Despite all this, the so-called hon’ble suspect still reserves the right to get the corruption case withdrawn when things cool down. Arguments of public interest can always be coined. A dispassionate observer will be dismayed as if corruption is being continued in public interest or for the existence of public order or survival of this great nation, which by implication cannot survive without these corrupt and dishonest elements and without their corruption and dishonesty.

    It is a beautiful arrangement that persons in authority commit the crime of corruption, and they only decide whether to investigate or not to investigate; if investigations are conducted, they only direct the collection of facts, they only decide on prosecution and finally on withdrawal. Whatever serves them gets defined as public interest. In all this so called public good, the country is looted, bled, drained and deprived.

Recent cases of Raja, Kalmadi, Thomas etc fit into the mould and certify the above analysis.
   With this mindset and working infrastructure can anyone think of any meaningful investigations against the high and mighty despite the capabilities that the CBI has?

 

(The author is retired DGP and former Joint Director CBI and the article is based on his book “Who Owns the CBI: The Naked Truth.)