The Congress Bureau of Investigation

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Big stick politics. Will it ever end?

On 21 March, two days after the DMK withdrew support from the UPA Government, ending a nearly nine-year-long relationship, officials of the Central Bureau of Investigation (CBI) raided DMK leader MK Stalin’s house in Chennai, probing a car smuggling case.

For once, even Prime Minister Manmohan Singh was “very upset” about the CBI raid, and said, “The timing of the raid is unfortunate. The Government didn’t do it.” Perhaps he meant ‘not this time at least’. “We will find out who is responsible,” he said, sounding almost apologetic and claiming he was unaware of this move by the CBI.

According to former CBI Director Joginder Singh, the claim that the Prime Minister was unaware of the CBI action is exquisitely revealing in itself: “[So] they always expect to know what’s exactly happening.”

It is because of incidents such as this that the CBI is perceived as a stick in the hands of the Government to discipline erring political allies and opponents. The saga of its blatant misuse by the ruling regime is long and expansive. Think Bofors, Jagdish Tytler, Mayawati, Mulayam Singh Yadav, Shibu Soren, J Jayalalithaa, Jagan Mohan Reddy, and now, MK Stalin. It is a saga that raises serious questions on the legitimacy of investigations conducted by the CBI that involve politicians and people who have stakes in Indian politics.

It is because of this that many legal luminaries and activists demand that the CBI’s functioning be insulated from political influence. ‘It is sad that even now the CBI continues to disappoint the people whenever it deals with cases against the powerful,’ wrote JS Verma, former Chief Justice of India, in The Indian Express, ‘The blame can no longer be made elsewhere. It is too much of a coincidence that in sensitive matters, the outcome of the CBI’s investigation invariably depends on the political equation of the accused with the ruling power, and it changes without compunction with changes in the equation.’ Joginder Singh supports Justice Verma’s assertion. “The CBI is not independent,” he says, “On the contrary, it is critically dependent on the Government.” The CBI has to take the Centre’s sanction at every step along the way, from starting an investigation to initiating court proceedings against those under the scanner, even sending CBI sleuths abroad to investigate cases. “No government wants to lose control of the CBI,” he adds, “[just as] state governments don’t want to lose control over the state police.”

And if a former CBI director is appointed the governor of a state after his retirement, it sends a strong signal to incumbents that toeing the ruling dispensation’s line has its rewards in the form of plum assignments later on. On 9 March, President Pranab Mukherjee appointed former CBI Director Ashwani Kumar—who was the Bureau’s chief from August 2008 to November 2010—the Governor of Nagaland. Even his appointment to the CBI was controversial, as he had pipped agency veteran ML Sharma, one year his senior, to the post. Kumar had once served in the Special Protection Group, looking after the security of Rajiv and Sonia Gandhi.

This is the first instance of the chief of a premier investigative agency being appointed a governor. Calling the move highly improper, BJP leader Jaswant Singh cautioned that this investigative agency “must not become a handmaiden of the ruling establishment”.

However, V Narayanasamy, minister of state in the Prime Minister’s Office, sees no conflict of interest. “He retired from service two years back,” he said, “He has no vested interest.” Needless to point out, the Prime Minister has not expressed any dismay at this unfortunate precedent.

There are many glaring examples of the CBI changing its course of investigation in line with changing political equations of the ruling party with the accused. Take the case of Samajwadi Party Chief Mulayam Singh Yadav. In March 2007, a disproportionate assets case was registered by the CBI against him. Seven months later, the CBI, based on a ‘preliminary inquiry’, claimed to have found ‘sufficient material’ against Mulayam and his clan, which includes the current Chief Minister of Uttar Pradesh, Akhilesh Yadav, and his MP wife Dimple Yadav.

On 22 July 2008, the SP bailed out the UPA Government after the Left parties deserted the alliance over the Indo-US Nuclear Deal. In what seemed like a case of quid pro quo, the CBI made a blatant U-turn in this case. On 8 November, the then Law Minister HR Bhardwaj sought the opinion of the then Solicitor General GE Vahanvati—perhaps to prepare the ground for a dilution of the case against Yadav.

Vahanvati’s six-page opinion was ‘accepted’ in writing by Law Minister HR Bhardwaj. Recommending a clean chit for Yadav and family, it stated that ‘Smt Malti Devi (Mulayam’s wife) and Dimple Yadav (his daughter-in-law) held no public office and there is no reference in the judgment about them holding any power or authority... It is not possible to club all assets and incomes together and conclude on the consolidated figures that there is a case... of holding disproportionate assets’. The CBI had pegged Mulayam’s unexplained assets at Rs 2.6 crore. Vahanvati didn’t find anything amiss. He advised the Government that Yadav’s pre-existent assets, valued at Rs 71.76 lakh, plus income and gifts to the tune of Rs 2.54 crore, ‘sufficiently accounts for the money for acquisition of the moveable and immovable assets’ made by him, and concludes that ‘on the basis of the facts which I have set out’, the Government should ‘look into the CBI’s report’ and ‘consider’ the withdrawal of its initial assessment (IA), still pending before the Supreme Court.

The Law Ministry took no time fielding Vahanvati’s observations. On 17 November 2008, Bhardwaj signed off on the file: ‘I agree with the legal opinion of the learned Solicitor General. The Department of Personnel may withdraw the IA pending in the Supreme Court.’

‘Thank you very much,’ Mulayam might well have said to the Government.

To justify its U-turn in the Supreme Court, the CBI put forth the opinion of its Director of Prosecution, SK Sharma, along with that of the Solicitor General. The apex court was aghast. On 27 January 2009, the bench observed: ‘The direction in the judgment to submit the report to the Centre was possibly a mistake.’

But the bonhomie didn’t last long. The Congress-SP relationship turned sour when the two parties couldn’t arrive at a seat-sharing arrangement for the 2011 Assembly polls in Uttar Pradesh. It was time to remind the SP that the disproportionate assets case could go against him again. On 31 March, the CBI informed the Supreme Court that it still ‘stands by its recommendations’ made in the status report dated 26 October 2007 and asserted that the agency had acted in ‘utmost good faith.’ The CBI requested the apex court to ‘ignore’ the Solicitor General’s opinion on the case.

In the next hearing, on 5 May, the CBI will perhaps be asked to explain its shifting positions. The agency has little by way of an explanation to offer—for reasons that seem obvious. Reportedly, the Yadavs’ lawyers submitted a set of 12 CDs in a sealed envelope to the Supreme Court that had tapes of alleged ‘negotiations’ held between CBI officials, law officers and the SP’s top brass. The authenticity of these tapes was not established, but the authenticity of the CBI’s investigation was in doubt.

Last year, when the UPA was in a tight spot over its FDI-in-retail move in the Winter Session of Parliament, Mulayam led an SP walkout ahead of the House vote, thus bailing out the Government yet again. With the SP and BSP abstaining, the UPA needed the support of only 251 MPs to defeat the Opposition’s motion, and ended up with 261 on its side. The outcome of the vote would have been different if the SP had decided to vote against the motion in accordance with the party’s stated position on foreign direct investment in India’s multi-brand retail sector.

The walkout was a result of CBI pressure, alleged Sushma Swaraj, Leader of the Opposition in the Lok Sabha: “I wanted that everyone should have walked their talked ... how vociferously Mulayam ji had opposed FDI... if he had voted with us, FDI would not have been implemented. It is not a question of BJP, this is not a communal issue... but the problem is the issue has now become FDI versus CBI.”

The BJP also saw the CBI as instrumental in securing Mayawati’s decision to lead a BSP walkout. The BSP chief denied this and counter-alleged that it was the BJP-led NDA that had misused the agency when it was in power at the Centre. Speaking in a Rajya Sabha debate on FDI-in-retail, she said, “I feel it is important to share how the CBI was misused during NDA’s tenure. The ruling BJP at that time had put pressure of the CBI on me. I would like to inform you that the BJP investigated all cases for political purposes.”

As a statement made in Parliament, Mayawati’s characterisation of the agency as a political tool cannot be brushed aside. She made a similar allegation against the Congress party. On 13 November 2010, the BSP leader alleged that the party offered her a deal just before the 2004 Lok Sabha election “to ensure that no injustice would be done” to her if the BSP agreed to join a post-poll coalition. She did not specify the terms of this deal, or what ‘injustice’ could have been done to her. The CBI had had Mayawati in its clutches for a disproportionate assets case for nine years. In September 2010, the Supreme Court slammed the CBI for dilly-dallying on the issue of prosecuting the leader. Pulling up the agency, a Bench of Justices B Sudershan Reddy and SS Nijjar observed: ‘What is this? Every time you seek [extra] time or an adjournment. Sometimes, you seek time for filing a reply, then you say that you want to file a counter-affidavit, then you say that you want to file an affidavit.’

Approaching the court to have the case closed, Mayawati accused the Centre in a petition of ‘giving a rise to reasonable apprehension of an attempt to create a lever to try to secure political ends by an abuse of [the] legal system’... and that the ‘premier investigation agency has unfortunately been used as a tool by the Centre by lodging the illegal FIR to harass [me] and proceedings of which are creating [an] obstruction in [the] smooth running of the state government.’ The Central Government opposed the plea for the case’s closure and claimed that Mayawati’s petition was ‘totally misconceived’.

Finally, in July last year, the Supreme Court bench of Justices P Sathasivam and Deepak Mishra quashed the disproportionate assets case against Mayawati and pulled up the CBI for exceeding its brief. The 34-page judgment stated: ‘The method adopted by the CBI against Mayawati is unwarranted and without jurisdiction. As the agency proceeded against her without properly understanding its orders which were confined to Taj Corridor case relating to the release of Rs 17 crore by the UP government allegedly without sanction. The impugned FIR is without jurisdiction and any investigation pursuant thereto is illegal and liable to be quashed... This Court being the ultimate custodian of fundamental rights did not issue any directions to the CBI to conduct a roving inquiry against the assets of the petitioner commencing from 1995 to 2003 even though the Taj Heritage Corridor Project was conceived only in July 2002.’

As Parliament went into recess on the day Stalin was raided on 22 March, Mayawati reiterated her point, speaking to journalists on Parliament premises: “Whether is it is the NDA or UPA Government, they have always used the CBI against political opponents. I knew from the very beginning that if we want justice, we will have to turn to the [Judiciary] rather than expect these governments to function in a fair manner.”

THE CASE OF Jagan Mohan Reddy, son of Andhra Pradesh’s late Chief Minister YS Rajasekhara Reddy (YSR), is another glaring example of how the CBI has earned its reputation of being a political tool. Reddy is accused of amassing wealth disproportionate to his known sources of income during his father YSR’s tenure as CM from 2004 to 2009.

The CBI, which is currently gunning for Jagan, did nothing while YSR—who died in a helicopter crash on 2 September 2009—was alive and in the political favour of the Congress High Command. For five years, it appears that Jagan had a free hand to amass all the wealth he is accused of amassing.

The rift appeared after Jagan signalled an ambition to succeed his father as AP’s Chief Minister. Sonia Gandhi wanted him to wait. Jagan did not want to, and rebelled against the High Command. The following sequence of events highlights the cost he has apparently had to pay.

On 2 September 2010, Jagan embarked on the third phase of his Odarpu yatra, repeatedly issuing statements defiant of the Congress leadership. On 21 November, in a sudden move, Congress MLA P Shankar Rao wrote to the Andhra Pradesh High Court to order a probe of Jagan’s assets. Nearly a week later, on 29 November, Jagan resigned his Kadapa Lok Sabha seat and quit the Congress. Within a fortnight, on 12 December, Jagan received an Income Tax notice to furnish details of his assets. On that very day, the Enforcement Directorate and the Income Tax Department started probes of his wealth, alleged to have multiplied a thousandfold during his father’s tenure.

On 11 March 2011, Jagan launched a new party and named it the YSR Congress. The party was seen as a clear threat to the Congress in the state. Four days later, on 15 March, the Andhra Pradesh High court ordered the CBI to register a case against Jagan and begin investigations. Two months later, on 8 May, the CBI froze the bank accounts of Jagan’s companies, namely, Sakshi (a daily), Sakshi TV and Janani Infra. This was seen as a blatant move to effectively place a financial cap on his political misadventures against the Congress.

None of it did Jagan’s popularity any damage. He played the victim to secure the electorate’s sympathy, and on 13 May, regained the Kadapa Lok Sabha seat by a record margin of 545,451 votes. This was too much for the ruling party to bear. Jagan was grilled by the CBI for three days and was finally arrested on 27 May. On 2 January 2012, V Vijaya Sai Reddy, Jagan’s financial adviser, was also arrested.

On 24 April 2012, Jagan began a hectic campaign for state bypolls scheduled on 12 June, and began attracting vast crowds. A month later, on 28 May, Jagan was hauled off his campaign trail and remanded to 14 days in judicial custody. It has been a year since the case against him was registered. A chargesheet is yet to be filed, but the CBI’s sword dangles above his head.