AN INDEPENDENT AGENCY IS NEED OF THE HOUR IN PLACE OF CBI

By; S Farman Ahmad Naqvi,
Advocate,
High court, Allahabad.
naqviandnaqvi.com, naqvifarman@yahoo.com

The CBI (Central Bureau of Investigation) of late became an infamous name. Where there is corruption, political or otherwise, this name crops up and then comes the blame, in handy, that the Central Govt. is misusing the agency either to frame someone or to shield someone of its own.
One of the latest controversies is relating to Coal scam in which a very piquant situation reached in Supreme Court. Serious allegations continue to surface against the United Progressive Alliance (UPA) government on its attempt to interfere with the CBI status report on the coal scam, with the latest salvo fired by Additional Solicitor General Harin Raval who has accused the Attorney General GE Vahanvati, in a letter, of trying to meddle in the coal scam as well as other investigations by the Central Bureau of Investigation (CBI). Under fire from the Supreme Court over showing the CBI’s preliminary investigation report to the Law Minister and two other bureaucrats, CBI director Ranjit Sinha has claimed no “substantive changes” were made to it by the political executive. Sinha, who has been alternately praised and criticized for his affidavit in the apex court, has maintained that he was summoned by the Law Minister to see the report on 5 March. CBI Director Ranjit Sinha maintained that the agency is not an “autonomous organisation” and that he had not shown it (report) to any outsider but to the Law Minister of the country. “I am a part of the government. I am not an autonomous body. I have not shown it to any outside person. I have shown it to the Law Minister of the country. I will inform the Supreme Court about any situation arising out of that. The decision of Supreme Court will be acceptable.”
The simple analogy which came out from Sinha’s clarification is that the CBI is working under the Central Govt. as one of numerous departments hence showing of the status report to Law Minister of the Country is not an illegal act on its part. Hence in this backdrop the demands are growing that the Govt. is trying to hide correct facts from public and is also interfering in investigation of not only coal scam but other such big scams.
Now it is necessary to throw some light over the CBI, how it came into existence and how it works. The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India. The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Deptt. of India during World War II. Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt. The Delhi Special Police Establishment Act was therefore brought into force in 1946. The CBI's power to investigate cases is derived from this Act. This is an Act to make provision for the constitution of a special police force (in Delhi for the investigation of certain offences now extending in the Union Territories also, for the superintendence and administration of the said force and for the extension to other of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. As the CBI is working under The Delhi Special Police Establishment Act whereby section 4 provides as follows;
“4. Superintendence and administration of special police establishment. (1) The superintendence of the Delhi Special Police Establishment shall vest in the Central Government. . . . . . . . . “
Interestingly CBI is working with inadequate staff and professional hands, which recurrently creates delays in finalizing investigations. As many as 831 posts at different levels were lying vacant in the CBI, according to a data updated till December 31, 2012. The total sanctioned strength of CBI is 6,586. The vacancies existed in the ranks of special or additional director, joint director, and deputy inspector general of police, superintendent of police, additional superintendent of police, deputy superintendent of police, inspector, sub- inspector, assistant sub-inspector and head constable. The posts of 54 Law Officers and 94 Technical Officers at various levels were also lying vacant.
At the time when the government is accused of interfering in the CBI's functioning by virtue of its administrative control over the agency, it is suggested that either enactment of a separate law or amendment in the existing archaic Delhi Special Police Establishment Act to give CBI a “statutory backing". The Delhi Special Police Establishment (DSPE) Act, governing the CBI, is to my mind "grossly inadequate", and hence either make changes in it or enact a new law.
The question is how this could be achieved? Is there any mode and mechanism available in the Constitution to make an independent organization?
Reply is yes, and the answer lies in article 246 of Constitution of India which gives powers to the Parliament and State legislature to enact laws upon the subjects enumerated in the schedule. Its heading suggests that it relates to subject-matter of laws made by Parliament and by the Legislatures of States. The article says that the Parliament has exclusive power to make laws with respect to any of the matters enumerated in list one in the seventh schedule which is commonly known as “Union List”.
The Union list of seventh schedule of Constitution of India includes various heads but some of the important issues upon which the Parliament is authorized to make laws include Defence of India and, Naval, military and air forces; Arms, firearms, ammunition and explosives. Atomic energy and mineral resources necessary for its production. Industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war. Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; Foreign affairs; all matters which bring the Union into relation with any foreign country. Diplomatic, consular and trade representation. United Nations Organisation and Railways, etc. etc.
In this list item no. 8 is about creation of Central Bureau of Intelligence and Investigation. In view of this provision the Parliament can frame law to create such agency. Thus the Parliament by legislation shall create “Central Bureau of Intelligence and Investigation” as per entry 8 of the Union List of schedule 7 of the Constitution of India as per article 246. As the same had not been given consideration till now and all successive governments and for obvious reasons they relied upon CBI, it can now be given birth to as it is still not too late.
One may misinterpret that agency named as NIA, which came into existence in 2008, and the Central Bureau of Intelligence and Investigation are the same. The fact is that NIA was formed after Mumbai attack which only covers terrorism related cases and not beyond that. The “Central Bureau of Intelligence and Investigation” when comes into existence will cover all types of cases directly under the control of Parliament and not under the Central govt.
It is also surprising that nobody, in the government or the opposition, is looking towards this aspect or calculatingly not looking towards it. Although there is huge hulla bulla for freeing CBI from the clutches of Central Govt.

Indian Constitution does not allow Reservation on religious grounds-A myth or reality. 

Should the reservations be on Economic Grounds?

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By- S. Farman Ahmad Naqvi,

Advocate, Allahabad High Court

In 1955, Kaka Kalelkar, Chairman of the First Central backward Class Commission, (First ever commission of its nature constituted under article 340 of Constitution of India, the second and the last such commission is Mandal Commission which submitted its report in 1980) in his note of dissent, expressed his views on the issue of Reservation in class I, II, III and IV Services of Government of India. It was primarily for the uplift of weaker sections of society. …. “Communalism and casteism are bound to destroy the unity of the nation and narrow down the aspiration of our people. “The special concessions and privileges accorded to Hindu castes acted as a bait and bribe inciting Muslim and Christian Society to revert to caste and caste prejudices and the healthy social effect by Islam and Christianity were thus rendered null and void.” (Para IV).
In his note of dissent, Kaka clarifies that “It is only when a community is proved to be working under a special handicap and is not allowed to freely function as a citizen that the state may intervene and make a special provision for the advancement of such under-privileged and handicapped communities or persons… A general formula for helping all persons to whatever caste or community, they may belong, should be made.” (Para viii)It is not enough to prove that one community is regarded inferior by another. The Christian may look down the Jews and the Jews may retaliate with the same feelings. The Brahmins may regard Banias as inferior and the Bania, in his turn, may regard the Brahmin as a mere social dependent. Such opinions and prejudices do not come in the way of the full growth of the backward communities either educationally or economically….. It is for them to make necessary efforts for their prosperity. They will naturally receive whatever helps is available to all citizens.” (Para vii and viii).
Criteria of backwardness other than caste – “It would have been better, if we would determine the criteria of backwardness on principles other than caste.” (Para vii) According to him, “caste test was repugnant to democracy and the objective “to create a casteless and classless society by perpetuating and encouraging caste divisions.” (Para viii).
But our polity allowed religious based reservation by using Constitutional provision i.e. article 341 which permits to specify castes to be added in a LIST by the president, by just issuing a notification. One will be surprised to know that when this notification was issued in 1950 it allowed religious based reservation in total violation of Constitutional provisions namely article 15. The notification called THE CONSTITUTIONAL (SCHEDULED CASTES) ORDER, 1950 says in para 3 regarding allowing reservation to only Hindus and no one, in the following words;
“4 (3). Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu 5 [the Sikh or the Buddhist] religion shall be deemed to be a member of a Scheduled Caste]”.
The presidential Order 1950 (the order) which renders the Dalit Christians and Dalit Muslims ineligible for enjoying the benefits of affirmative action of Government. Before Proceeding it is appropriate to place article 15 of Constitution of India here in below:
The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
a. No citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
b. access to shops, public restaurants, hotels and places of public entertainment; or
c. the use of wells, tanks, bathing Ghats, roads and places of public resort maintained whole or partly out of State funds or dedicated to the use of general public.
2. Nothing in this article shall prevent the State from making any special provision for women and children.
3. Nothing in this article or in clause (2) or article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Although Article 15 of the Constitution says that there shall be prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, except from making some provision for advancement of any educationally and socially backward classes of citizen as well for SC and ST so far that provision relates to their admission in educational institutions. The Presidential Order 1950 states that the criterion to define the Scheduled Caste, which reads: Not withstanding anything contained in paragraph 2, no person who professes a religion different from Hindu, shall be deemed to be a member of a Scheduled Caste so the religion was used as a criterion to define, who shall be Scheduled Caste. On the basis of that criterion all other people professing Islam, Christianity and other were left out. Although in 1956 and 1990 the third paragraph of the Presidential Order 1950 was amended by the Parliament to extend the benefits to the Dalit Sikhs and the Dalits Buddhists along with the Dalit Hindus.
The serious question arises here is that whether this presidential Order of 1950 is in conflict of Part III of Constitution of India which envisages equality to all citizens of India in article 14 and 16 in all spheres of life or not? Article 14 of Constitution of India says,’ the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’
Article 16 Constitution of India says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Although article 15 Constitution of India provides for State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Numerous studies most prominently and recently the Sachar Committee report, have pointed out, Muslims are among the most economically, educationally and socially backward sections of Indian society. Undoubtedly, the report is immensely useful for understanding the magnitude of this problem, as are many of the suggestions that it provides for ameliorating it.
Recently the Govt. of India had also constituted National Commission for Religious and Linguistic Minorities which was also called as Ranganath Misra Commission constituted on 29 October 2004 to look into various issues related to Linguistic and Religious minorities in India. It was chaired by former Chief Justice of India Justice Ranganath Misra. The commission submitted its report to the Government on 21 May 2007.
Initially, the commission was entrusted with the following terms of reference.
(a) To suggest criteria for identification of socially and economically backward sections among religious and linguistic minorities; (b) To recommend measures for welfare of socially and economically backward sections among religious and linguistic minorities, including reservation in education and government employment; and (c) To suggest the necessary constitutional, legal and administrative modalities required for the implementation of its recommendations.
After nearly five months of its work the Commission’s Terms of Reference were modified so as to add the following to its original Terms of Reference.
(d) To give its recommendations on the issues raised in WPs filed in the Supreme Court of India and in certain High Courts relating to Para 3 of the Constitution (Scheduled Castes) Order 1950 in the context of ceiling of 50 percent on reservations as also the modalities of inclusion in the list of Scheduled Castes.
Following are the salient features of recommendations of Ranganath Misra Commission:
· 15% of jobs in government services and seats in educational institutions for minorities
· reserves 8.4% out of existing OBC quota of 27% for minorities
· SC reservation to Dalit converts.
· Para 3 of the Constitution (Scheduled Castes) Order 1950 – which originally restricted the Scheduled Caste only to Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc. – should be wholly deleted by appropriate action so as to completely de-link Scheduled Caste status from religion and make the Scheduled Castes net fully religion-neutral like that of the Scheduled Tribes.
Although an entire religious group had still not been granted reservation by the 1950 order but backwardness was considered a qualification for granting reservation to a religious group by this order. Applying the same analogy other religious groups can be identified and granted reservation on the basis of their backwardness. As mentioned above Muslims backwardness had already been identified and it was found that a substantial chunk of Muslims is living below poverty lines. Then where is the impediment to provide adequate representation to them in public employment in view of article 15 (4) of Constitution. By not doing so discrimination is extended to the left out religious groups.
Till today twelve States Government and Union Territories have recommended to Union of India for granting the SC status to these people. In the year 2000, Bihar State Assembly passed resolution for granting SC status to Dalit Christians and Dalit Muslims; in the year 2006 Uttar Pradesh State Assembly passed resolution for the same; in the year 2009 Andhra Pradesh State Government had passed resolution in its assembly for granting the SC status to Dailt Christians and Dalit Muslims. Andhra Govt. granting 4 percent reservation to Muslims was negated by its High Court on technical grounds. Against the A.P. Govt. approached Supreme Court where the order of High Court was stayed matter was referred to a constitution Bench of Seven Judges and the reservation of Muslims in A.P. was allowed to be continued during the matter is pending there.
Now the focus has shifted from political space to economic and educational entitlement, but at the core remains the grievance of injustice. If reservations are good for virtually everyone else, why do they become such a terrible idea when it comes to Muslims? True or false, the Constitution does not permit reservations for religious groups; but this is fact that article 15 envisages reservations for women and reservation to women is provided taking advantage of the said constitutional provision. If State can take advantage of the Constitution to accommodate women, Dalit Hindus, Buddhists and Sikhs, why not educationally and socially backward Muslims taking advantage of article 15 (4) of Constitution of India? It is vociferously argued that the reservation on the above lines is provided because the targeted people had suffered discrimination for thousands of year hence they are liable to be compensated and this is the only way to compensate. They mean to say that we are paying for the sins of our great grand forefathers. It appears to be a very feeble argument because if this is the reason to provide reservation to discriminated people of the past generations, then the thought comes that who will pay for the sins of our generation and for how many more thousands of year the presently discriminated had to wait?
As of now another important issue had cropped up i.e. reservation in promotions to be provided to SC’s & ST’s. Parliament is stalled by some parties and some are seeking extension of the term of Parliament so the bill providing reservation in promotion to SC’s & ST’s is passed. Lots of arguments are coming forward in support and in opposition of the issue but the prime objection are. “if accelerated seniority is confirmed on the roster by the promotees, the consequences would be disastrous inasmuch as the said employee can reach the fourth level by the time he attains the age of 45 years and at the age of 49, he would reach the highest level and stay there for nine years whereas a general merit promotee would reach the third level out of the six levels at the age of 56 and by the time he gets eligibility to get into the fourth level, he would reach the age of superannuation. Hence it is urged that if reservation in promotion is to be made, there has to be collection of quantifiable data, regard being had to the backwardness and inadequacy of representation in respect of the posts in a particular cadre and while doing so, the other relating to the efficiency of administration has to be maintained.” The issue is that why this accelerated promotion is provided to the same person who had already availed benefits of reservation once?
Another issue comes to mind that whether this phenomenon called reservation will ever be abolished? If yes then what should be the alternative to this system?
Any way this new issue of reservation in promotion granted another lease of life to the Govt. to defer reservation of minorities. The demand if any raised will die down in the echo of the war of words amongst the rival claims of different parties, and this issue of reservation of minorities is going to be shelved somewhere in the backroom of power and will emerge on the eve of next election where wooing will again start in some new Packag.
On the other hand if the argument is that religious reservation is not permissible then how to reconcile with 1950 Presidential order which provides reservation to the persons who professes Hindu, Sikh or the Buddhist religion? We can hide the truth behind millions of words loaded with heavy reasons, but the simple truth is that reservation on religious grounds was allowed indirectly taking cue from the words of Article 341 of Constitution of India.
My suggestion would be that all reservations shall only be made on the basis of economic, social and educational backwardness which will cover all who come within the criteria made to identify such people. That will also remove any plea which I have raised about religious discrimination or caste discrimination etc. All Indians who are economically, socially and educationally back ward will come within the Umbrella of reservation without discriminating them on caste creed or religious grounds. To identify such people a commission to be appointed state wise as well at center which may conduct an extensive survey in time frame e.g. in next ten years? In the mean time public opinion to be developed by all concerned about phased wise abolition of present system of reservation and introduction of the newly evolved system.