The Hindu Editorial Analysis- 26th April 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

The right to litigate

Why in News?

The Central Bureau of Investigation (CBI) has registered an FIR against well-known environmental lawyer Ritwick Dutta for alleged violations of the Foreign Contribution (Regulation) Act. 

What is CBI?

• Central Bureau of Investigation (CBI) is the premier investigating police agency in India.
• It provides assistance to the Central Vigilance Commission and Lokpal.
• It functions under the superintendence of the Deptt. of Personnel, Ministry of Personnel, Pension & Public Grievances, Government of India - which falls under the prime minister’s office.
• However for investigations of offences under the Prevention of Corruption Act, its superintendence vests with the Central Vigilance Commission.
• It is also the nodal police agency in India which coordinates investigation on behalf of Interpol Member countries.
• Its conviction rate is as high as 65 to 70% and it is comparable to the best investigation agencies in the world.

What is Its Historical Background?

• During the period of World War II, a Special Police Establishment (SPE) was constituted in 1941 in the Department of War of the British India to enquire into allegations of bribery and corruption in the war related procurements.
• Later on it was formalized as an agency of the Government of India to investigate into allegations of corruption in various wings of the Government of India by enacting the Delhi Special Police Establishment (DSPE) Act, 1946.
• The CBI is not a statutory body but derives its power to investigate from the Delhi Special Police Establishment Act, 1946.
• The establishment of the CBI was recommended by the Santhanam Committee on Prevention of Corruption (1962–1964).
• In 1963, the CBI was established by the Government of India with a view to investigate serious crimes related to defence of India, corruption in high places, serious fraud, cheating and embezzlement and social crime, particularly of hoarding, black-marketing and profiteering in essential commodities, having all-India and inter-state ramifications.
• With the passage of time, CBI started investigations in conventional crimes like assassinations, kidnappings, hijackings, crimes committed by extremists, etc.

What Type of Cases are Handled by the CBI?

• Anti-Corruption Crimes - for investigation of cases under the Prevention of Corruption Act against Public officials and the employees of Central Government, Public Sector Undertakings, Corporations or Bodies owned or controlled by the Government of India.
• Economic Crimes - for investigation of major financial scams and serious economic frauds, including crimes relating to Fake Indian Currency Notes, Bank Frauds and Cyber Crime, bank frauds, Import Export & Foreign Exchange violations, large-scale smuggling of narcotics, antiques, cultural property and smuggling of other contraband items etc.
• Special Crimes - for investigation of serious and organized crime under the Indian Penal Code and other laws on the requests of State Governments or on the orders of the Supreme Court and High Courts - such as cases of terrorism, bomb blasts, kidnapping for ransom and crimes committed by the mafia/the underworld.
• Suo Moto Cases - CBI can suo-moto take up investigation of offences only in the Union Territories.
  • The Central Government can authorize CBI to investigate a crime in a State but only with the consent of the concerned State Government.
  • The Supreme Court and High Courts, however, can order CBI to investigate a crime anywhere in the country without the consent of the State.

How is the Director of CBI Appointed?

• Director, CBI as Inspector General of Police, Delhi Special Police Establishment, is responsible for the administration of the organisation.
• Till 2014, the CBI Director was appointed on the basis of the DSPE Act, 1946.
• In 2003, DSPE Act was revised on Supreme Court’s recommendation in the Vineet Narain case.
• A committee that had members from Central Vigilance Commission, Secretaries from Home Ministry, Ministry of Personnel and Public Grievances would send recommendations to Central Government for the appointment of CBI Director.
• In 2014, the Lokpal Act provided a committee for appointment of CBI Director:
  • Headed by Prime Minister
  • Other members - Leader of Opposition/ Leader of the single largest opposition party, Chief Justice of India/ a Supreme Court Judge.
  • Home Ministry sends a list of eligible candidates to DoPT. Then, the DoPT prepares the final list on basis of seniority, integrity, and experience in the investigation of anti-corruption cases, and sends it to the committee.
  • Director of CBI has been provided security of two year tenure, by the CVC Act, 2003.
• In November 2021, the President promulgated two ordinances to allow the Centre to extend the tenures of the directors of the CBI and the Enforcement Directorate from two years to up to five years.
• Amendments in DSPE Act:
  • Provided that the period for which the Director holds the office on his initial appointment may, in public interest, on the recommendation of the Committee (the committee led by the Prime Minister and leader of Opposition and CJI as members) and for the reasons to be recorded in writing, be extended up to one year at a time.
  • Provided further that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment.

What Cases have been Associated with reference to the Investigation by CBI?

• In December 2021, a Supreme Court bench referred a case, in which the CBI (Central Bureau of Investigation) had filed an affidavit on the withdrawal of ‘general consent’ to the CBI by several States, for consideration of the Chief Justice of India.
• Eight States withdrew consent to the CBI for launching investigations in their territory.
• According to Section 6 of the Delhi Special Police Establishment Act of 1946 under which the CBI functions, the State’s consent is required to extend CBI investigation beyond Union Territories.
• According to the CBI, such widespread withdrawal of consent is rendering it redundant with regard to investigation of corruption charges against Central employees and undertakings working within the territorial jurisdiction of various States.
• Impact on Pending Investigation:
  • The withdrawal of general consent does not affect pending investigation (Kazi Lendhup Dorji v. CBI, 1994) or the cases registered in another State in relation to which investigation leads into the territory of the State which has withdrawn general consent, nor does the withdrawal circumscribe the power of the jurisdictional High Court to order a CBI investigation.
• Earlier Judgement of SC:
  • In the Advance Insurance Co. Ltd case, 1970, a Constitution Bench held that the definition of “State”, as contained in The General Clauses Act, includes Union Territories as well.
  • Hence the CBI, being a force constituted for Union Territories as recognised under the Delhi Special Police Establishment Act of 1946, can conduct investigation into the territories of the States only with their consent.

What Challenges are Faced by the CBI?

• Political Interference: The Supreme Court of India has criticised the CBI by calling it a "caged parrot speaking in its master's voice", due to excessive political interference in its functioning.
  • It has often been used by the government of the day to cover up wrongdoing, keep coalition allies in line and political opponents at bay.
• Delayed Investigations: It has been accused of enormous delays in concluding investigations - For example, the inertia in its probe against the high dignitaries in Jain hawala diaries case [of the 1990s].
• Loss of Credibility: Improving the image of the agency is one of the biggest challenges till now as the agency has been criticised for its mismanagement of several cases involving prominent politicians and mishandling of several sensitive cases like Bofors scandal, Hawala scandal, Sant Singh Chatwal case, Bhopal gas tragedy, 2008 Noida double murder case(Aarushi Talwar).
• Lack of Accountability: CBI is exempted from the provisions of the Right to Information Act, thus, lacking public accountability.
• Acute shortage of personnel: A major cause of the shortfall is the government's sheer mismanagement of CBI's workforce, through a system of inefficient, and inexplicably biased, recruitment policies - used to bring in favoured officers, possibly to the detriment of the organisation.
• Limited Powers: The powers and jurisdiction of members of the CBI for investigation are subject to the consent of the State Govt., thus limiting the extent of investigation by CBI.
• Restricted Access: Prior approval of Central Government to conduct inquiry or investigation on the employees of the Central Government, of the level of Joint Secretary and above is a big obstacle in combating corruption at higher levels of bureaucracy.

What is the Foreign Contribution Regulation Act?

• About:
  • FCRA was enacted during the Emergency in 1976 amid apprehensions that foreign powers were interfering in India’s affairs by pumping money into the country through independent organisations.
  • The law sought to regulate foreign donations to individuals and associations so that they functioned in a manner consistent with the values of a sovereign democratic republic.
• Amendments:
  • An amended FCRA was enacted in 2010 to “consolidate the law” on utilisation of foreign funds, and “to prohibit” their use for “any activities detrimental to national interest”.
  • The law was amended again in 2020, giving the government tighter control and scrutiny over the receipt and utilisation of foreign funds by NGOs.
• Criteria:
  • The FCRA requires every person or NGO seeking to receive foreign donations to be:
    • registered under the Act
    • to open a bank account for the receipt of the foreign funds in State Bank of India, Delhi
    • to utilize those funds only for the purpose for which they have been received and as stipulated in the Act.
  • FCRA registrations are granted to individuals or associations that have definite cultural, economic, educational, religious, and social programmes.
• Exceptions:
  • Under the FCRA, the applicant should not be fictitious and should not have been prosecuted or convicted for indulging in activities aimed at conversion through inducement or force, either directly or indirectly, from one religious faith to another.
  • The applicant should also not have been prosecuted for or convicted of creating communal tension or disharmony.
  • Also, should not be engaged or likely to be engaged in the propagation of sedition.
  • The Act prohibits the receipt of foreign funds by candidates for elections, journalists or newspaper and media broadcast companies, judges and government servants, members of legislature and political parties or their office-bearers, and organisations of a political nature.
• Validity:
  • FCRA registration is valid for 5 years, and NGOs are expected to apply for renewal within six months of the date of expiry of registration.
  • The government can also cancel the FCRA registration of any NGO if it finds that the NGO is in violation of the Act, if it has not been engaged in any reasonable activity in its chosen field for the benefit of society for two consecutive years, or if it has become defunct.
  • Once the registration of an NGO is cancelled, it is not eligible for re-registration for three years.
• FCRA 2022 Rules:
  • In July 2022, the MHA effected changes to FCRA rules which increased the number of compoundable offences under the Act from 7 to 12.
  • The other key changes were exemption from intimation to the government for contributions less than Rs 10 lakh – the earlier limit was Rs 1 lakh — received from relatives abroad, and increase in time limit for intimation of opening of bank accounts.