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Investigation Reimagined

Delivering the DP Kohli memorial lecture on “Democracy: Role and responsibility of investigative agencies,” CJI Justice Ramana, suggested that all investigating agencies should function under an umbrella organisation that would decide which agency should take up a particular investigation.

Devendra Saksena | New Delhi |

India has a surfeit of investigative agencies; CBI, ED, SFIO, NIA, DRI, DGGI, NCB, and IB, to name a few. Add to it enforcement wings of various departments and you have an army of law enforcers. Yet, the presence of myriad law enforcers does not seem to deter lawbreakers. For example, gangster Vikas Dubey had amassed assets of around Rs 6,000 crore in India and abroad but multiple revenue agencies failed to detect the presence of such humongous illegal assets. Enforcers of the Income-tax Act, Customs Act, Prevention of Money Laundering Act, Black Money Act, Benami Transactions (Prohibition) Act etc. as also enforcers of criminal laws like the IPC, NSA, UAPA, MCOCA, all failed to dissuade Vikas Dubey from his nefarious activities. 

The Vikas Dubey case is hardly exceptional. High-profile criminals almost never get their just desserts and the money scammed is hardly ever recovered. The infamous Bofors scandal is archetypal of the scams perpetrated over the years. After years of investigation, the Delhi High Court quashed all charges against the accused persons, observing that fruitless investigations had already cost the exchequer Rs 250 crore, as against the alleged kickbacks of Rs.64 crore. 

The Tehelka sting (2001), revealed that everyone, from clerks to ministers, was willing to sell top-secret information for ridiculously small sums of money, Yet, some Tehelka journalists and investors were jailed after they reported on the scam and not the wrong-doers. The denouement of Coalgate, Commonwealth Games and 2G scams was strikingly similar. No scamster was punished, cases dragged on for years and no part of the defalcated cash was recovered. The lakhs of crores of rupees stashed away by scamsters seem to have vanished in thin air. 

Even more strange was the Adarsh Housing scam, where top politicians, bureaucrats and army officers had cornered flats meant for Kargil widows. Despite indictment by a judicial commission in 2011, four former chief ministers and two ministers involved in the scam are still at large and the case is nowhere near resolution. 

Delivering the DP Kohli memorial lecture on “Democracy: Role and responsibility of investigative agencies,” CJI Justice Ramana, suggested that all investigating agencies should function under an umbrella organisation that would decide which agency should take up a particular investigation. Justice Ramana pointed out that a single incident was often investigated by multiple agencies, leading to dilution of evidence, contra- diction in depositions, and prolonged incarceration of innocents. 

What Justice Ramana said holds true for most high-profile investigations; right from the day a scam is detected, all investigating agencies hit the panic button and run helter-skelter after the scamsters. This may sound good in theory but on the ground, the investigation gets derailed because all agencies pursue different goals and guard (and never share) the information they gather. Thus, the CBI would try to prove that the scamsters did not follow proper procedures, and the income-tax department would try to prove that the scamsters did not pay income-tax while the enforcement directorate would play on the money laundering angle. Consequently, the whole case becomes a jigsaw puzzle ~ too complicated for courts to resolve. Contrast it with the way the infamous Al Capone, who could not be convicted for the many murders that he had committed (because of frightened and vanishing witnesses), met his nemesis by coordinated action by police and income tax. 

Every scam in India is politicised; once a scam becomes public knowledge, opposition parties start demanding the government’s resignation while the government starts listing out the scams which occurred when opposition parties were in power. Meanwhile, the perpetrators of the scam roam free. Years are taken by investigating agencies to file voluminous charge sheets running into thousands of pages. No wonder, court proceedings drag on for decades. By that time, investigating officers have retired, most of the culprits are dead and the persons who had unearthed the scam had lost interest. 

Such inept handling of high visibility cases dents public confidence in the Government and leads to unforeseen and undesirable consequences. The Bofors scandal derailed the process of defence procurement, which is now so convoluted and long-winding that it is almost impossible to purchase defence equipment within a reasonable time. For example, Dassault Rafale fighter aircraft of 2001 vintage, which were approved for purchase in 2012, was delivered only in 2020. Consequently, because of a deficient procurement process, we have acquired something ancient, not state of art. 

Another sequel to the Bofors affair was the blacklisting of Bofors AB, leaving us with no source for ammunition. At the time of the Kargil war, we ran out of ammunition for the Bofors guns. In desperation, we purchased ammunition at the rate of $10,000 per round from South Africa. The entire cost was never officially revealed but given the fact that the Bofors gun fires three rounds per minute, the cost must have been astronomical. It is a matter of record that the Bofors gun proved itself in battle and turned the tide of the Kargil war decisively in our favour. Blacklisting Bofors, additionally meant that we could not manufacture the Bofors gun indigenously. After de-blacklist- ing, an upgraded version of Bofors, ‘Dhanush’ has recently been inducted into the Army. 

On the other hand, the massive publicity given to the Bofors scandal led to the downfall of the Rajiv Gandhi government. Having won on the Bofors plank, VP Singh, the next prime minister, promised that the culprits would be put behind bars within 15 days. However, the first charge sheet in the Bofors case was filed only in October 1999 and was quashed by the Delhi high court in 2004. Today, the dramatis personae of the Bofors scandal are all dead. No part of the alleged illegal commission of Rs.64 crore has been recovered and no one has gone to jail for perpetrating the scam. 

One of the major reasons for the ineffectiveness of investigating agencies is their selective approach; investigators are liberal with some accused and strict with others. Moreover, agencies change their tune with a change in government. Often, personnel of the investigating agencies are found to be colluding with the accused persons. In the Telgi scam, it was the Mumbai police commissioner, in the 2G scam, it was the CBI director and in the Adarsh scam, it was government advocates. No wonder, most scamsters go unpunished and, after the spotlight leaves them, enjoy the proceeds of their crime. 

The coordination between investigating agencies, desired by the CJI, has been a mirage, so far. The elaborate coordination mechanism, headed by the Central Economic Intelligence Bureau (CEIB), formed in the wake of the Vohra Committee Report, lies defunct. The idea of having a statutory agency to co-ordinate the working of myriad investigating agencies has much to recommend it but it may be too much to hope that the Government that has fought shy of implementing the reports of the National Police Commission that recommend operational independence for the police, would readily yield control over investigating agencies to an independent body. 

Contrast what happens in India with the suo motu police investigation into Partygate ~ a number of parties that were held by the British Prime Minister, at the official residence of the PM, during the Covid lockdown. No politician, including the PM, had the courage to question the police enquiry. 

Obviously, London Police set the bar very high. A former Chief Commissioner of London Police, Sir Robert Mark, had laid down his vision for the police in the following words: “… the most essential weapons in our armoury are not firearms, water cannon, tear gas or rubber bullets, but the confidence and support of the people on whose behalf we act. 

That confidence and support depend not only on the factors I have already mentioned but on our personal and collective integrity and in particular on our long tradition of constitutional freedom from political interference in our operational role… it is important for you to understand that the police are not the servants of the Government at any level. We do not act at the behest of a minister or any political party, not even the party in government. We act on behalf of the people as a whole and the powers we exercise cannot be restricted or widened by anyone, save Parliament alone.” 

We, too, wish that our investigating agencies could achieve this high level of independence, integrity and professionalism, that would obviate the necessity of creating a body to breathe down their neck. 


(The writer is a retired Principal Chief Commissioner of Income-Tax)