The Uses (and Abuses) of Investigative Agencies

 The Uses (and Abuses) of Investigative Agencies

A critical look at the three central agencies show how and why they were conceived and how they are being used today.

The Uses (and Abuses) of Investigative Agencies

NIA, CBI and ED logos.

Ajay K. Mehra

12/NOV/2022

It has been over a decade since Supreme Court Justice R.M. Lodha described the Central Bureau of Investigation as a “caged parrot” that speaks in “its master’s voice” in 2013, highlighting disconcerting trends of the misuse of federal probe agencies.

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Several media outlets have also analysed the misuse of federal investigative agencies by the Union government.

However, the actual test balloon was floated some time ago, with the plan to shift the police system to the Concurrent List in the constitution, indicating an attempt at an avoidable incursion.

Meanwhile, the Union home minister’s recent declaration to elevate the National Investigation Agency as the federal police with an office in each state shows an attempt to expand the Union government’s public security tentacles in each state.

A critical look at the three central agencies provides evidence.

The Central Bureau of Investigation

The CBI, India’s oldest investigative agency, was evolved from the Special Police Establishment (SPE), which was set up in 1941 by the then government of India to investigate cases of bribery and corruption in transactions within the war and supply department during the World War II.

It was retained after the war, and revamped with the help of the Delhi Special Police Establishment (DSPE) Act, 1946, that gave it a statutory status.

Former home minister Lal Bahadur Shastri reorganised it as the CBI in April 1963. He extended its mandate to violation of central fiscal laws, serious crimes committed by organised gangs and thugs, and collecting supporting intelligence, statistics of crime, and conducting police research and making special studies, and so forth.

The impact of escalating partisanship on the CBI since the 1980s is reflected in the grant and withdrawal of ‘general consent’ by states, which is essential for the CBI to carry out investigations in a state under Section 6 of the DPSE Act (1946). In its absence, it needs to seek case-wise permission, which may or may not be granted.

Grant and withdrawal of general consent on political considerations has been common for states.

With the federalisation of India’s political landscape, the tussle over general consent has escalated. The states that have lately withdrawn general consent to the CBI are Chhattisgarh, Jharkhand, Kerala, Mizoram, Punjab, Rajasthan, West Bengal, Meghalaya and Telangana.

Significantly, the Supreme Court in the Vineet Narain vs. Union of India (1997) prescribed a selection committee headed by the Central Vigilance Commission (CVC) to select the CBI director in 1998 to reduce political interference. The Lokpal Act, 2013, created a committee consisting of the prime minister (chair), the leader of opposition in the Lok Sabha, and the Chief Justice of India as members to select the director from a panel of senior IPS officers for a two-year tenure. And the appointing committee alone could remove her or him.

The official residence of the CBI director.

The selection process prescribed by the top court, however, fell flat by 2016. The Alok Verma-Rakesh Asthana episode that played out in 2017 from the highest level in the government was the starkest, most bizarre and unprecedented example of the politicisation of the CBI.

Also read: ‘Chronology Samajhiye’: Hours After Midnight Coup, CBI Chief Alok Verma Entered Surveillance Zone

The misuse of the CBI since 1980 was also seen in Delhi riots of 1984 and the Bofors arms deal in 1986.

The abuse of CBI in targeting opposition and the dissenters since then has been glaring.

In 2016, the offices of the Delhi government’s principal secretary Rajendra Kumar and later, cabinet minister Satyendar Jain were raided. The CBI questioned Delhi deputy chief minister Manish Sisodia next. It is understood that no evidence was found.

It arrested Gopal Krishna Madhya, the officer on special duty in Sisodia’s office, in an alleged corruption case related to GST irregularities, ahead of the 2020 Delhi assembly polls.

In August 2020, Sisodia’s house was raided again to probe the liquor license case. In fact, the CBI raided 31 locations across six states and one Union Territory in this case.

Congress leader and former Union minister P. Chidambaram and his son Karti came under the CBI lens for alleged irregularities in foreign direct investment worth Rs 305 crore into INX media without the approval of the Foreign Investment Promotion Board in 2007.

The CBI raided properties belonging to the Chidambarams in Chennai on May 16, 2017 and on June 13, 2017. He was arrested dramatically by the CBI on August 21, 2019 from his residence in Delhi, even as he was trying to get judicial redress.

On October 23, 2019, it raided 14 residential properties owned by the Chidambarams in different cities. He was released after 106 days on December 4, 2019.

The CBI had been targeting news channel NDTV, which is critical of the BJP, and its owners Pranoy Roy and his wife Radhika Roy, since 2014.

The CBI probed them for making investments by creating shell companies in 2017. In August 2019, the CBI lodged a fresh case against them for alleged FDI violations. They were stopped at Mumbai airport from flying abroad in August 2019.

Figures show that since 2004, several leaders in opposition parties have been targeted by the CBI.

Despite scams rocking the United Progressive Alliance governments since 2004 of the 72 key leaders probed by the agency for its decade-long reign, only 29 were from the Congress and its allies, and 43 were from the opposition. The scene has reversed since 2014.

Probes against 118 opposition leaders by the CBI since Narendra Modi-led National Democratic Alliance came to power are evidence of abuse. Glaring cases against the BJP and leaders were ignored. Another key feature of these probes and arrests was their timing. From the rise of a leader to prominence to national and state elections, all have invited CBI probe.

Enforcement Directorate

The ED has also been used for prying against leaders of the opposition and other dissenters, even – rumour has it – to change the popular verdict in a state by intimidating a MLAs of a party and engineering defections.

As the Shiv Sena, part of ruling coalition Maharashtra Vikas Aghadi, split vertically and the defecting group joined a coalition with the BJP in June 2022, the new slogan was that ‘the ED is the new CBI.’ Circulating in the political arena, it was more than a rumour, based on several cases of ED snooping against the opposition and dissenters.

The expanding domain of the ED since it was created as a small Enforcement Unit on May 1, 1956, to investigate cases of violation of Foreign Exchange Regulation Act, 1947, within the Department of Economic Affairs can be seen in terms of both violation of and expansion of the Exchange Control Laws.

In 1957, it was named the Enforcement Directorate with the addition of a branch in then Madras along with the existing two in Bombay and Calcutta, as the cities were known then. Its administrative control was transferred from the Department of Economic Affairs to the Department of Revenue in 1960. In 1973, a new FERA legislation replaced the FERA, 1947.

With this the ED was relocated to the administrative realm of the Department of Personnel and Administrative Reforms, where it remained for the next four years. It was transferred in 1977 to the Department of Revenue. In 1999, the Foreign Exchange Management Act, 1999, replaced the FERA.

The dynamic liberalised economic regime added the Prevention of Money Laundering Act, 2002, and the Fugitive Economic Offenders Act, 2018, to the strings of the existing foreign exchange laws and in course of time they became the responsibility of the ED.

Congress MPs holding banner and placards stage a protest march at Parliament House complex to express their solidarity with the party Chief Sonia Gandhi who has to appear before the Enforcement Directorate in connection with the National Herald case, in New Delhi, July 21, 2022. Photo: PTI/Kamal Kishore

Under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), the ED is empowered to sponsor cases of preventive detention with regard to contraventions of FEMA. Except for the PMLA, 2002, which is a criminal Act, the rest are civil Acts.

Currently, of the five enactments that the ED works on, the PMLA, 2002, which has stringent bail conditions, is the most used.  It empowers the ED to attach properties and assets of the accused. Also, the statements of an accused recorded in front of an investigating officer of the ED is admissible in a court of law.

Also read: SC Backs ED’s Powers Under PMLA, Says Supply of ECIR to All Concerned Not Mandatory

The agency is meant for catching bigger fishes involved in suspicious financial deals. However, the UPA government began using it against its political opponents. During 2004 to 2014, 26 leaders were probed by the ED, of these 54% were from the opposition.

As the NDA came to power in 2014, this abuse of the ED intensified. Of the 121 political leaders probed by the ED since then, 115 (95 per cent) belong to the opposition, with the Congress accounting for maximum 24 followed by 19 of the Trinamool Congress.

In fact, a look at the figures indicates the focus and priorities of the ruling party. Significantly, many of the leaders left their party to join the BJP. Intriguingly, the case against many of them dropped or was put on the back burner and quite a few were rewarded with prime positions. Himanta Biswa Sarma, the current Assam chief minister, Suvendu Adhikari and Mukul Roy of the TMC, were all leaders who later joined the BJP. Roy is back to TMC now. The former Punjab Congress chief minister, Captain Amarinder Singh, also joined the BJP.

With cases against the Gandhi family – Sonia, Rahul and Priyanka – the Congress has been pushed on the back foot.

National Investigation Agency

Created in 2008 after the Mumbai terror attack, the National Investigation Agency (NIA) has also been misused during its brief existence.

The audacious daredevilry of 10 well-trained Pakistani terrorists, who stealthily landed on the Mumbai sea-shore on November 26, 2008, surprised the entire Indian security system, both coastal and land-based, including all the intelligence agencies. Hurriedly, on December 31, 2008, the Indian parliament passed the NIA Act.

The NIA is mandated to deal with terror-related crimes across the country. Empowered to act in any state, the jurisdiction of the Act extends to (a) citizens of India in the country and outside India; (b) to persons in the service of the government wherever they may be; and (c) to persons on ships and aircraft registered in India wherever they may be.

The officers of the NIA have an India-wide jurisdiction for preventing and investigating the scheduled offences.

The NIA’s political overreach was seen for the first time in June, 2020, when the Union Ministry of Home Affairs transferred the Bhima Koregaon-Elgar Parishad case to it from the Maharashtra Police, which was conducting the investigation of the case from the inception. Human rights activists campaigning against the BJP’s Hindutva agenda congregated on December 31, 2017. The next day, an annual Dalit congregation was held at Bhima Koregaon, a village 26 km away from Pune, to commemorate their victory over the Peshwa army in 1818. As the commemoration of two centuries was on, some groups carrying saffron flags entered the congregation site. The resulting scuffle led to a death, along with injuries to many.

The 16 arrested in connection with the Elgar Parishad case. One of them, Father Stan Swamy, passed away in custody. Photo: The Wire.

Eyewitnesses named Hindutva leaders Milind Ekbote and Sambhaji Bhide for alleged incitement. Since the police arrested only the former, a blame game followed – Hindutva groups by the opposition and the Left by the BJP.

Also read: Bhima Koregaon Violence: Four Different Theories, but No Justice in Sight

Maoist groups were held responsible by the Pune police for exploiting the age-old rivalry between Dalits and Marathas and engineering riots in Bhima Koregaon, hatching a conspiracy to topple the elected government in New Delhi and a plot to kill the prime minister.  

Naming several Republican Panthers and human rights activists for delivering “provocative speeches” in the Elgar Parishad congregation on December 31 and igniting a communal fire resulting in violence at Bhima Koregaon the next day, the Pune police raided the residences of activists in Delhi, Mumbai and Nagpur in April 2018 and arrested five activists under the Unlawful Activities Prevention Act (UAPA), and later, more.

The precipitation to transfer the case from the Maharashtra police came when the BJP-led NDA lost power in the state in the October 2019 legislative assembly election, and an alliance of Shiv Sena, Nationalist Congress Party, and the Congress, formed the government. The Union government invoked Section 6(5) of the NIA Act on January 2020 and transferred the case the to the NIA.

Although the Act does not say anything about a case that is already being investigated by a state’s police, given the fact that the Maharashtra Police were already investigating the case and had filed a chargesheet in the court and had not taken any precipitate action, it looked incongruent.

It was the first instance in which a case in an advanced stage of investigation by a state police were transferred under Section 6(5) of the NIA Act.

The NIA moved quickly arresting Delhi University associate professor M.T. Hany Babu in July 2020, and Stan Swamy, an 83-year-old Jesuit priest and tribal welfare champion in October 2020 from Ranchi due to their alleged links with the CPI (Maoist). Suffering from Parkinson’s disease, his interim medical bail was opposed by the NIA and rejected by the special NIA court, he moved the Bombay high court for medical bail. His condition worsened and he contracted COVID-19 and the HC ordered him to be shifted to a private hospital. In July 2021 he suffered a cardiac arrest and passed away.

Also read: Remembering Stan Swamy, Whose Struggle Was Driven by Empathy and Love

When the NIA claimed that letters were found on the laptop of Rona Wilson addressed to activist-poet Varavara Rao regarding their Maoist links and the plot against the Indian state, digital forensic expert Arsenal Consulting was consulted by Wilson’s lawyer.  Their investigation revealed that the 10 impugned letters were inserted in Wilson’s computer through malware over a period of two years.

Of course, the Ministry of Home Affairs denied any tampering of the laptop of Wilson. And the NIA went on carrying the ‘inquiry’ and conducting raids and arresting journalists, lawyers, littérateurs and civil right activists, naming 64 individuals. The Union government also used the NIA against the farmers and their bodies agitating against the three controversial farm laws from August 2020 to December 2021.

It is in context that in November 2022, in two unrelated cases, the ED and the NIA were castigated by two different courts, raising questions on the Union government’s abuse of these agencies.

Releasing Shiv Sena MP Sanjay Raut, arrested by ED in July 2022 under PMLA in a Rs 1,034-crore money laundering case, a special PMLA judge said, “He was arrested for no reason and the arrest was illegal.”

On the Gautam Navlakha (one of the accused in the Bhima Koregaon case) plea to be shifted to house arrest on health grounds, the Supreme Court bench of Justices K.M. Joseph and Hrishikesh Roy was rather harsh on the Additional Solicitor General S.V. Raju representing NIA.

Ajay K. Mehra is a political scientist. He was Atal Bihari Vajpayee Senior Fellow, Nehru Memorial Museum and Library, New Delhi, 2019-21, and Principal of the Shaheed Bhagat Singh Evening College, University of Delhi.