The opposition criticism of the Prime Minister’s Office (PMO) and the Law Minister overseeing the CBI report on its investigation into the Coalgate scam being monitored by the Supreme Court is understandable. What is not understandable is the failure of politicians and intellectuals to recognize that such a situation was inherent and inevitable under the prevailing system. It is all very well demanding a change in the government. What about demanding a change in the system?

The Prime Minister was in charge of the Coal ministry when the scam occurred. The CBI before submitting its report had it vetted by the Law Minister and officials of the PMO. Since the PM was directly responsible for the ministry being investigated there was clear conflict of interest in the decision of his officials to examine the CBI probe report during its preparation. That is obvious. But what if the PM had not been in direct charge of the Coal ministry during the scam? If the CBI probe had been similarly vetted by government officials in that event would the conflict of interest have been any less? For the CBI to serve directly under the authority which it might be investigating violates the laws of natural justice. That is why the CBI is constantly in controversy and has lost its reputation. Many statements to this effect by opposition politicians as well as by CBI officials themselves testify to this truth. That is why there are frequent demands of making the CBI an autonomous investigative agency. It is while considering options of achieving this that enormous confusion abounds.

The CBI cannot be a sovereign body. It must perforce function under a superior authority.

Clearly that authority cannot be the government because not only are the careers of CBI officers under the government’s jurisdiction but also because very often it is the government itself that has to be investigated by the agency. The CBI cannot function under Parliament because not only does the government have majority support in Parliament but also because very often its members equally have vested interest in the outcome of investigation. To overcome this systemic flaw the expedient solution of allowing the Supreme Court (SC) to monitor the CBI probe has been adopted.

It is a wholly unsatisfactory solution. While the SC may monitor the CBI probe its officers continue to function under the government aware of its power to promote, demote or transfer them. In the day to day conduct of an investigation the SC can do nothing to prevent government pressure on the CBI. This became glaringly evident from the abysmal failure of the SC when it first adopted the policy of monitoring a CBI probe. That was in the Jain Hawala Case. The much lauded and recently departed Chief Justice JS Verma headed the bench in that case. In all the voluminous and much deserved praise showered on him after his death it was a trifle disappointing that Justice Verma’s spectacular failure in delivering justice in that case found no mention. That failure was particularly instructive and relevant to the present crisis.

I will not burden the reader by attempting to convince him of the failures of the Court in dealing with that case by iterating old facts and arguments. I will let the late Justice Verma do that. Addressing a memorial lecture in mid-2004 Justice Verma said that the CBI had performed poorly in the Jain Hawala Case and the case therefore should be revived. Since Justice Verma headed the SC bench which monitored the investigation it clearly indicates that the SC as a monitoring agency cannot deliver satisfactory results.

What then is the solution?

Recently almost the entire political class and media were shouting themselves hoarse while demanding that the CBI be liberated from the shackles of the government by creating an independent Lokpal which would have the power to monitor its functioning. There were differences expressed about the quantum of powers that might be given to the proposed Lokpal. There was no dispute about the principle of transferring responsibility of overseeing the CBI from the government to the proposed Lokpal. There was near unanimity on this proposal. This writer from the outset shot down the proposal for being grievously flawed. Who would appoint the Lokpal and to which authority would it be accountable? In what manner would it perform better than the Central Vigilance Commission (CVC) or the Comptroller-Auditor General (CAG) which are similarly mired in controversy? Fortunately the euphoria about the Lokpal has largely evaporated. But the nationwide support it first attracted offers the obvious solution to the problem that our politicians resolutely refuse to recognize.

The obvious solution lay in the fact that there already exists a Super Lokpal designated as the President of India in our Constitution. The President is the ultimate authority to ensure that laws are implemented. The President is detached from day to day politics and is unaffected by its fluctuations. The President has the widest mandate and is chosen not only by both Houses of Parliament but also by all the Assemblies in the nation. The proposed Jan Lokpal was rubbished for its far reaching powers over the Lok Ayuktas and minor officials because it violated the Constitution. But a Supreme Court ruling that renders Governors entirely independent of the Union Cabinet offers constitutionally the President and all the Governors directly appointed and accountable to Rashtrapati Bhawan the powers envisaged in the proposed Jan Lokpal and Lok Ayuktas.

My proposal was threefold.

First, the President aided by his secretariat should have mandatory power over all the constitutional bodies like Election Commission, CVC and CAG. The CBI should also be converted into a constitutional body. Secondly, the President should exercise the executive authority assigned to the office in our written Constitution with restraint and act only as an advisor to both the Union Cabinet and to Parliament. And finally, to further strengthen his mandate the President’s tenure might be made co-terminus with the fixed tenures of Parliament and all the State Assemblies. Thereby the President would be elected by incoming legislators at the same time as his own election. While the election would remain indirect it would for all practical purpose get converted into a popular mandate in which ordinary voters would exercise their choice about who should be President because they would know which Presidential candidate the MPs and MLAs they vote for will support. If this were done, appropriate Presidents would be elected.

This is the only solution for making the CBI an independent investigative agency. This solution does not violate the Constitution but respects its spirit and text. This solution can be acted upon with minimal legislation that in no way disturbs the basic structure of our Constitution. Will our leaders seize it?