CBI director denied ex-officio secretary powers
IANS | New Delhi November 13, 2013
The union government has rejected the demand from the Central Bureau of Investigation (CBI) that its director be vested with ex-officio powers of the secretary, so he could directly report to the minister for personnel and training.
The government also rejected the demand for empowering the investigating agency's head to appoint special counsel and retainers for the agency.
While "strongly opposing" the CBI plea on both counts, the government, in its affidavit, said it was throwing out the demand "both in principle as well as due to the deleterious effect it will have on the criminal justice system".
The government said that "vesting of ex-officio secretary powers upon the director of the CBI is strongly opposed as it will seriously jeopardise the scheme of checks and balances envisaged in governance, as well as other deleterious effects likely on the criminal justice system".
Junking the plea that the CBI chief be accorded the status of ex-officio secretary to the government and powers to appoint special counsel and legal retainers for its functional efficacy and autonomy, the affidavit that was filed Wednesday in the apex court said: "(The) twin objectives of functional efficacy and independence can be achieved without disturbing the entire statutory scheme of governance carefully envisaged with necessary checks and balances at several levels."
"Moreover, functional efficacy and autonomy in investigation are two entirely different things," the government said.
Referring to the Rules that govern the mandate of the secretary in the government of India, the government said: "The sanctity of the laid down procedures have to be also maintained in the interest of governance across the gamut of services," and "granting CBI director ex-officio powers of secretary would run contrary to the Rules and affect the statutory scheme of governance."
"There are several governance issues which have to be factored in by the government of the day in discharge of its executive function," the government told the court.
Deriding the CBI contention that its chief too should be allowed to report to the minister, as was the case of the R&AW chief and special secretary (Internal Security), the government said that "the functional requirements of an intelligence agency like R&AW cannot be compared to an investigating agency like the CBI".
It said that R&AW chief reports to the cabinet secretary and special secretary (Internal Security) reports to the home secretary, and not to the prime minister and home minister respectively.
The government said that the mere fact that the CBI director is in a pay scale of secretary to the government "does not mean equivalence in functional and administrative responsibilities of the secretary to the Government of India, as defined in provisions".
Turning down the demand that the CBI director be authorised to appoint special counsel and retainers, the government said: "The proposed suggestion to eliminate the approval of the ministry of law and justice for appointment of special counsel would compromise the autonomy of prosecution and its independence from the investigating agency i.e. the CBI."
"In case the investigating agency itself starts deciding, albeit in consultation with its minister, the prosecuting officers, then the control of investigating agency over' the prosecuting agency would be greater and contrary to the principles of separation of investigation and prosecution," the affidavit said.