Does Govt. have the power to transfer the Director, CBI?

Even in early days, Jawaharlal Nehru used his authority to force a recalcitrant RBI governor Benegal Rama Rau to quit. During her term, Indira Gandhi practically undermined the autonomy of every democratic institution including the highest judiciary. Even a few years back there was this public spat between the then finance minister Chidambaram and the then RBI governor Subba Rao. The CBI had always been known as a dachshund to be let loose on the political opponents of the party in power.

Before the enactment of Lokpal Act, CBI chief was appointed by Centre on the basis of procedure laid down in Delhi Special Police Establishment (DSPE) Act,1946 but after Lokpal, CBI chief is appointed by the Centre on the basis of recommendation of search committee comprising the Prime Minister, the Chief Justice of India and the Leader of Opposition. Now, the Lokpal Act governs the appointment of the CBI director but the functioning of the agency is still governed by DSPE Act, 1946.

Roles & Functions of Central Vigilance Commission:

  • Exercise superintendence over the functioning of the Delhi Special Police Establishment (CBI) insofar as it relates to the investigation of offences under the Prevention of Corruption Act, 1988; or an offence under the Cr.PC for certain categories of public servants – section 8(1)(a);
  • Give directions to the Delhi Special Police Establishment (CBI) for superintendence insofar as it relates to the investigation of offences under the Prevention of Corruption Act, 1988 – section 8(1)(b);
  • To inquire or cause an inquiry or investigation to be made on a reference by the Central Government – section 8(1)(c);
  • To inquire or cause an inquiry or investigation to be made into any complaint received against any official belonging to such category of officials specified in sub-section 2 of Section 8 of the CVC Act, 2003 – section 8(1)(d);
  • Review the progress of investigations conducted by the DSPE into offences alleged to have been committed under the Prevention of Corruption Act, 1988 or an offence under the Cr.PC – section (8)(1)(e);
  • Review the progress of the applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act, 1988 – section 8(1)(f);
  • Tender advice to the Central Government and its organizations on such matters as may be referred to it by them – section 8(1) (g);
  • Exercise superintendence over the vigilance administrations of the various Central Government Ministries, Departments and Organizations of the Central Government – section 8(1)(h);
  • Shall have all the powers of a Civil court while conducting any inquiry – section 11;
  • Respond to Central Government on mandatory consultation with the Commission before making any rules or regulations governing the vigilance or disciplinary matters relating to the persons appointed to the public services and posts in connection with the affairs of the Union or to members of the All India Services – section 19.
  • The Central Vigilance Commissioner (CVC) is the Chairperson and the Vigilance Commissioners (Members) of the Committee, on whose recommendations, the Central Government appoints the Director of Enforcement – section 25.
  • The Committee concerned with the appointment of the Director of Enforcement is also empowered to recommend, after consultation with the Director of Enforcement appointment of officers to the posts of the level of Deputy Director and above in the Directorate of Enforcement – section 25;
  • The Central Vigilance Commissioner (CVC) is also the Chairperson and the Vigilance Commissioners (Members) of the Committee empowered to recommend after consultation with Director (CBI), appointment of officers to the post of the level of SP and above except Director and also recommend the extension or curtailment of tenure of such officers in the DSPE (CBI) – Section 26 and Section 4C of DSPE Act, 1946.
  • The CVC’s power with regard to functioning of CBI seem to be quite exhaustive. Any authority for transfer and disciplinary action against the Director, CBI is not however explicitly mentioned. This is the matter under dispute and the present director has moved the Supreme Court against his transfer order issued by the Govt.

It is critical to understand what autonomy and institutional integrity mean for an autonomous institution like CBI. All these institutions consist of technocrats and bureaucrats who are not elected and nor directly accountable to the people. In a democracy, the final responsibility for all major decisions must lie with the elected body like the govt. or the parliament or both. Therefore, the notion of autonomy for autonomous institution does not mean self-governance for them. No authority can be absolute and beyond disciplinary action; its continuance is always subject to approval by higher authority, in this case the CVC and the govt.

The writer is a long-standing commentator on contemporary issues

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