(This story was first published on 28 August 2020, and is being republished from The Quint's archives in light of the Madras HC passing a slew of directions and saying that the CBI – the "Caged Parrot" – should be released.)
The Supreme Court on Wednesday, 19 August, said that the Central Bureau of Investigation (CBI) would take over the investigation into the death of Bollywood actor Sushant Singh Rajput, directing the Mumbai Police to hand over all evidence they had collected in the case to the central agency.
The apex court reportedly said that the CBI needed to investigate the case to retain “public confidence in the impartial working of the State agencies”.
Several politicians, Bollywood celebrities and citizens alike hailed the apex court’s decision and applauded the verdict, saying that the CBI probe would ensure justice to Sushant Singh Rajput and his family.
But is the handover of the case to the CBI really going to help, given the agency’s track record and allegations made against it? Is the CBI really as effective and impartial as people hope?
The SC’s Famed ‘Caged Parrot’ Remark
In May 2013, during the UPA government, a bench of the Supreme Court came down heavily on the CBI while hearing a coal scam case, saying that the probe agency had become a “caged parrot” speaking in the voice of its political masters.
“It’s a sordid saga that there are many masters and one parrot,” the apex court had reportedly added in its observation, calling for the government to make the CBI impartial and allow it to function without external pressures and influences.
The top court had questioned the credibility of the CBI in its investigation into the coal scam, dubbed ‘Coalgate’ by the media. It also pointed fingers at the government for allegedly interfering in the probe report, saying, “The heart of the report was changed on suggestions of government officials.” The court appeared to be referring to the controversy wherein the draft status report of the investigation had reportedly been shared with officials in the coal ministry and the PMO.
There had been complaints from the Opposition about undue Congress influence over the probe agency.
In April 2013, Samajwadi Party leader Mulayam Singh Yadav pointed fingers at the government, accusing it of misusing CBI. “It’s not easy to fight with the government. It has thousand hands and can use CBI and put anyone in jail," Yadav had said.
“Considering the enormous amount of misuse of political clout, the CBI has lost its credibility,” late Union Minister Arun Jaitley, then BJP leader of the Opposition in the Rajya Sabha had reportedly said at the time of the coal scam controversy.
How Does the CBI Work?
The motto of the CBI is “Industry, Impartiality and Integrity”.
Even though the CBI is viewed as a central agency, it is not governed by a law passed by Parliament.
The CBI draws its power from the Delhi Special Police Establishment (DSPE) Act 1946 and its primary jurisdiction is confined to Delhi and Union Territories. For extension of its powers and jurisdiction to any other state, consent from the government of that state is required – unless a high court or Supreme Court orders it to investigate a matter.
While the CBI is supposed to be an independent body, it functions under the Department of Personnel, Ministry of Personnel, Pension & Public Grievances, Government of India, which itself falls under the PMO.
Further, courts as well as the Central Vigilance Commission (CVC) have authority over the CBI. The latter superintends the CBI.
Track Record Since 2014
Despite allegations of misuse of CBI by Congress during UPA, the track record of the agency over the past few years under the BJP government has also been dubious.
Aircel-Maxis Case
In August 2014, CBI filed a chargesheet against former telecommunications minister Dayanidhi Maran and his brother Kalanithi Maran amongst others in the long-running Aircel-Maxis case.
However, in February 2017 the CBI special court dropped all charges, saying CBI pressed charges due to misreading of official files, NDTV reported.
Instead, in April 2017, the CBI informed the SC that it was investigating P Chidambaram’s role in the alleged irregularities in grant of FIPB approval in the case, and alleged payments to Karti Chidambaram. In 2018, after being named in the supplementary chargesheet filed by CBI, Chidambaram alleged that the agency had been pressurised into it. The case is still ongoing.
Ballari Irone Ore Mining Scam
In 2011, Ballari was the epicentre of a Rs 35,000 crore illegal iron-ore mining scam.
The then chief minister BS Yeddiyurappa, who was also indicted in a bribery case related to mining, resigned from his post in June 2011 and even spent three weeks in Bengaluru Central Jail in relation to the scandal.
In October, 2012, CBI filed a chargesheet against Yeddyurappa and others for alleged abuse of position and being involved in bribery worth Rs 40 crore.
However, in October, 2016, a CBI special court acquitted Yeddiyurappa and 13 others, stating the prosecution failed to establish their guilt. In September 2017, the CBI closed most of the cases in the mining scam , saying that “no prima facie is made out to justify registration of a case”.
Vijay Mallya Case
The case against Vijay Mallya for charges of fraud and money laundering amounting to Rs 9,000 crore is practically history by now. Mallya left India in March 2016 for the UK, from where he has been fighting extradition proceedings since.
At the heart of this case is a lookout circular (LoC) issued against Mallya before his departure from India and its alleged dilution by the CBI, which allowed Mallya to flee the country.
Initially, the CBI had issued an LOC against Mallya which ordered him to be detained if he intended to leave the country or arrive from abroad. However, it was later diluted, asking the immigration authorities to only inform the agency in case of his travel, Business Standard reported. The original lookout notice was an “inadvertent error”, the CBI reportedly said.
The watering down of the lookout notice was reportedly done by an SP-ranked officer on the verbal instructions of a joint director of CBI and the then director Anil Sinha was kept out of the loop.
Jiah Khan Suicide
CBI is currently investigating actor Jiah’s Khan’s death as well, in which actor Sooraj Pancholi stands charged for abetting suicide. Khan was found dead on 3 June, 2013, in home in Mumbai. A year later, on 3 July, 2014, the Bombay High Court ordered the CBI to take over the case. The CBI has since been pulled up for delays and lack of action in the investigation, as well as some anomalies involving evidence going missing, reported India Today.
Khan’s mother, Rabia, accused police of botching up the initial investigation, under pressure from top Bollywood celebrities. Chargesheets were filed and the trial began in February 2018, but has not really proceeded, with Pancholi claiming that the trial is not happening because Jiah Khan's family is not turning up in court.
Narendra Dabholkar Case
In August 2013, writer, rationalist and activist Dr Narendra Dabholkar was shot dead by two bike-borne assailants in Pune. In June 2014, the CBI took over the case after a Bombay High Court order. The case has been moving at a snail’s pace and the trial has not even begun yet.
In September 2016, the CBI filed a chargesheet and named Sanatan Sanstha members Sarang Akolkar and Vinay Pawar as the two assailants who shot Dabholkar. However, in August 2018, CBI contradicted its earlier claim and arrested Hindutva activists Sachin Prakashrao Andure and Sharad Kalaskar, telling the court that these two were the shooters.
The delay has put the spotlight on the CBI and even the Bombay High Court has rapped the the agency on the knuckles in February 2020, saying it had been seven years since Dabholkar’s death and that the trial should commence at the earliest.
2G Scam
The 2G spectrum allocation scam was unearthed during the term of the previous UPA government. The scam involves politicians and other government officials who are believed to have made cheap deals with telecom companies for the allocation for licenses.
The CBI had pressed charges of bribery and corruption against former Telecom Minister A Raja and Kanimozhi of the DMK, Bollywood producer Karim Morani, businessman Shahid Balwa and former managing director of Anil Ambani’s Reliance Group, Gautam Doshi, besides several others.
In this case, the CBI was criticised roundly for its handling of the case and it failed to prove its case against the accused beyond all reasonable doubt, leading to special CBI judge OP Saini acquitting A Raja and all the others accused in December 2017.
Saini castigated the CBI for its failings, saying that it had failed to prove the charges made against the accused made in the “well choreographed chargesheet” and that no useful evidence had been produced by the agency in court.
He also said that many facts recorded in the chargesheet are factually incorrect and that by the end of the case, “the quality of prosecution totally deteriorated and it became directionless and diffident”.
Aarushi Talwar Case
In another high profile case, in 2013, CBI stated that Rajesh and Nupur Talwar killed their daughter Aarushi and domestic help Hemraj in Noida, in May 2008.
In November 2013, a special CBI court in Ghaziabad convicted the couple for the murders and sentenced them to life imprisonment. However, in October, 2017, the Allahabad HC acquitted the accused, citing insufficient evidence, and ordered their release and slammed the CBI for several flaws. The CBI in 2018 moved the Supreme Court to challenge the clean chit to the couple.
The two CBI teams which probed the case reached completely different conclusions, which leads many to consider that the case remains unsolved.
CBI vs CBI
In 2018, in-fighting between the probe agency’s highest positions turned the CBI into a battleground.
On 24 August, 2018, then Special Director of CBI Rakesh Asthana wrote to the Cabinet Secretary alleging that businessman Moin Qureshi had paid then CBI Director Alok Verma Rs 2 crore to get relief in a case against him. At this time, Asthana was already under internal investigation for bribery in the same case.
Two months later, on Sunday, 15 October, in an unprecedented move, the CBI booked Asthana for allegedly receiving bribes in the case.
Eventually, both Verma and Asthana were sent on leave by the Centre and senior IPS Officer and CBI Joint Director M Nageswar Rao was made the interim in-charge of the director’s post. The order for this was reportedly passed near midnight on 23 October, and Rao also took charge in the wee hours of 24 October. A year later, Asthana was given a clean chit in the bribery case.
Verma had challenged the Centre’s decision to send him on leave on the grounds that his position as the CBI director is protected by legal safeguards (including a fixed two-year tenure) to ensure the autonomy of the investigating agency.
After many delays, the SC on 8 January, reinstated him as the CBI director, setting aside the Centre's October 2018 order that divested him of his powers. The SC said that the government should have referred to the Select Committee before taking action against Verma on 23 October.
How did this very public spat affect the probe agency?
“The in-fighting between the two senior-most officials of the CBI definitely lowered the prestige of CBI in public eyes, but it didn’t affect the functioning of the CBI,” said Vineet Narain, the anti-corruption activist whose exposure of the famous Hawala case led him to file a PIL which forced pressure on the CBI.
“This is unprecedented, right? Of a chief going home and being replaced in the middle of the night....It did make clear to some of the officers that the courts would not assist any particular officer who was not backed by the government. Because with even some of the transfers made in the interim period, the court refused to restore status quo again.”Senior advocate Sanjay Hegde, Verma’s counsel in SC, to The Quint
“It definitely affected CBI because it became two groups - there was a pro-Asthana faction and a pro-Verma faction. So, I would blame that on the director of the time. It’s the job of the director to have a team. Everybody has to work in cohesion. You cannot have in-fighting going on in the organisation. You can’t have FIRs being filed against each other. It was definitely very unfortunate and would’ve had a big impact on CBI and in a way the government did the right thing by removing both,” a senior police officer who did not wish to be named told The Quint.
“Yes, it definitely affected the image of CBI. But that has been recovered. Ultimately there is no other investigation agency, the SC has full faith in the CBI,” the officer added.
Transfer of Cases to CBI
There have been many instances of cases being transferred to CBI in some states where the government at the Centre was not in power, though they had been investigated by the state police prior to the CBI stepping in.
With regard to the Jiah Khan case, the case was transferred to CBI in 2014, when the state had a Congress government under Prithviraj Chavan. However, it was not the state that gave its consent for the case to be handed over to CBI, but the Bombay High Court which ordered the handover.
With regard to the Narendra Dabholkar case too, the CBI took over the case after a Bombay High Court order, in 2014, a year after the murder.
The Aarushi Talwar case was also transferred to the CBI from the Uttar Pradesh Police in June 2008, but there were serious allegations that the UP Police had botched the investigation and some top cops were also transferred after they came under criticism for their probe. However, the transfer was done with the consent of the UP government.
Leaving aside transfers, there have also been instances of CBI cases not taking off with regard to BJP-supported politicians in non-BJP states. BJP’s Yeddiyurappa, who was involved in the Ballari mining scam, was acquitted by the CBI investigation, when the state was under Congress leader Siddaramaiah.
Narain says that this is not restricted to the BJP alone but any political party in power at the Centre.
“That has always been the case. Whenever there is a party in the Centre, they always try to protect their governments in states. Is there any example where the Central ruling party has allowed CBI to go all out in a state where that party’s government is functioning ever? Every political party which has been in Centre has used CBI to arm-twist their political opponents and it continues to be so.”Vineet Narain to The Quint
“The Sarada Scam, after Mukul Roy joined the BJP, we don’t hear much about the investigation, and that’s a non-BJP state. With the Ballari mining case, after the BJP came into power in the Co particular progress. So, it’s a well-trained caged parrot,” Hegde said.
However, the senior police officer said that the Central government had no role to play here.
“Whether BJP or non-BJP, the central government cannot take cases if the state government does not agree. So the only way they can take cases is that if the SC intervenes or the HC orders. So the Central government has no role in that,” the senior police officer told The Quint.
He also pointed out that with regard to the Sushant Singh Rajput case, even with the Bihar government transferring the case to the CBI, the Maharashtra government could still have stonewalled the probe agency, had it not been for the SC’s order.
Where is the CBI Now?
The CBI claims that it has a conviction rate as high as 65-70 percent and it is comparable to the best investigation agencies in the world. But with lack of details about this number, this cannot be independently corroborated. Neither is an analysis of its record with regard to political cases possible. Meanwhile, serious questions have been raised time and again with regard to its functioning and effectiveness.
With regard to the delay in solving cases, the CBI explains that there is “multi-layer supervision” in CBI.
“The evidence collected is analysed threadbare both by executive officers and law officers at multiple levels. Because of all these factors, CBI investigations often take time,” the CBI FAQs state.
Seven years after the SC slammed CBI as a “caged parrot”, have things changed?
“The SC said it was a ‘caged parrot’ earlier, but after everything that went on in the removal of Alok Verma, CBI has become not only a tame parrot but a well-trained one. One well-trained parrot that can pick out cards at will that can determine people’s fortunes or misfortunes,” Hegde told The Quint, adding that since the SC’s observation, things had only become worse.
Hedge said that it did not seem to have had any great outstanding success in cracking any particular case which an earlier state team had failed to crack. He pointed out that there had been little progress in the Dabholkar case and while the CBI had been investigating the Mallya case and making some progress, Mallya had still not come home.
The senior police officer had a different point to make. Speaking to The Quint, he said that CBI does about 1,000 cases a year, and that out of those 10-15 out of those are politically motivated, as in there is political pressure on them. The rest are all professionally done, he said.
With respect to the agency’s track record, he said that CBI had also had some successes, pointing out that though Mallya was not back yet, all his appeals had been rejected, which is a big achievement and that Nirav Modi had been jailed in the UK and not running free, another achievement. He also pointed out that in the Aircel-Maxis case, licenses had been cancelled by the SC on the basis of the CBI’s investigations, while in the Ballari case, Reddy had been arrested.
However, he pointed towards the judiciary and questions being raised about it. “Isn’t the judiciary also a caged parrot? Look at what all the lawyers are saying, you see the condition of the judiciary. Why pull up the CBI alone,” he said, pointing out that in some political cases, the judiciary was to blame for charges being dropped and that the CBI’s functioning was also affected by the courts.
Narain however says, “CBI continues to be an instrument to blackmail political opponents. A statement which I had made back in 1993 during the Hawala crusade that CBI is not an agency to investigate corruption, it is a burial ground of corruption. Whoever in in central government, successive governments have used it to settle their scores with political opponents and it continues to be the same. Despite all the efforts to get it autonomy, nothing has changed.”
In a side-note, it may be noted that in November 2013, the Gauhati High Court passed an unprecedented judgment, striking down the resolution through which the CBI was constituted and declaring all its actions unconstitutional.
However, the agency is still functional because the Centre moved the SC against the ruling and the apex court in February 2014 stayed the judgment, saying that the HC had erred in holding that the constitution of CBI was illegal, reported The Indian Express. The matter remains that way and the SC is yet to decide on the question of constitutionality of the CBI.
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