CBI is used to settle scores; Congress used it, now BJP is using it: Siddhartha Dave [Part 2]

IB reports against prospective judicial appointees are often negative if the government is against that person, Dave says.
CBI is used to settle scores; Congress used it, now BJP is using it: Siddhartha Dave [Part 2]
Senior Advocate Siddhartha Dave

One of the most prominent criminal lawyers practicing in the Supreme Court today, Siddhartha Dave does not mince his words when it comes to the functioning of investigating agencies in India. He goes as far as to say that the credibility of the Central Bureau of Investigation (CBI) has "long been finished off" and also laments the "mushrooming of Central investigative agencies" in the country.

In the second of this two-part interview with Bar & Bench, Dave also speaks about what ails the criminal justice system, the possibility of criminal law reforms and much more.

You recently appeared in a matter in which it was held that the CBI has pan-India jurisdiction to probe a case. In the context of recent comments made by the Chief Justice of India in Court, do you think the credibility of the institution remains intact?

Siddhartha Dave
Siddhartha Dave

The CBI's credibility has long been finished off. Everyone knows this, especially on the criminal side. We know that CBI is nothing more than a better version of any other local police. Who does CBI have as its officers? They are all officers who are on deputation from the local police. They are not trained in any special way.

CBI takes people on remand and shifts them to its head office. It is under the control of the Central government, everyone knows it. Earlier, cases were transferred for CBI investigation if the case involved politicians from any State. Now, most of the cases are under special laws introduced by the Centre. You have these Union law officers (Additional Solicitors General) representing the CBI.

Every Central government uses the CBI to settle its scores. The Congress Party used it for the longest period of time. Now, the BJP is using it for whatever scores they want to settle. Everything given by the CBI is in a sealed cover.

Do you think the same is the case with the Narcotics Control Bureau (NCB) as well?

I don't trust a single investigative agency in this country. Go through their records. Now, we have a mushrooming of investigative agencies - NCB, CBI, National Investigation Agency (NIA), Serious Fraud Investigation Office (SFIO), Enforcement Directorate (ED).

The States, which are supposed to have jurisdiction over law and order, now have only the police under their control. The Central government has at least 10 investigative agencies. Thus, there has been a complete turnaround of what the framers of the Constitution had envisioned.

The demand for a CBI inquiry is always prayed for since there is no other alternative. The other alternative could be the demand to constitute a special investigation team (SIT). But the Supreme Court cannot go around constituting SITs for each and every individual case. So, we fall back upon the CBI because it is convenient - it's like the TINA (There Is No Alternative) factor.

Let me be clear. CBI is political and is controlled. It does whatever it wants and it is no wonder that it has a conviction rate which is abysmally low.

You are associated with a pending appeal against what has infamously been called the ‘skin to skin’ judgment of the Bombay High Court. Do you think there is a need for subordinate and High Court judges to be trained to deal with sensitive matters like this?

I am at a loss of words with regard to that matter. When rape cases started pouring in, there was a demand that they should be handled by women judges. Now we have women judges who are handling it, and this one was delivered by a woman judge.

So, ultimately it's not so much the gender that determines the case as much as the person who is conducting the trial or hearing the appeal. Notions which a person may have may be difficult to dislodge. There are judges who are by and large inclined towards the State and there are others who are more relief-oriented and in favour of the accused. That is a natural predicament and nobody can change it.

In the seventies, we had socialist judges. So every landlord and every business house lost in the Supreme Court. So this hasn't changed. What is now happening in the Supreme Court is that it is not so much a balancing act. It's more in favour of the complainant and the State as far as criminal law is concerned. It is a broad generalization and you can trace it over the last 20 years.

So, now we can see that the Supreme Court is more into bail cancellation and setting aside judgments, (of High Courts) quashing cases etc. Twenty years ago, the top court would not have touched such judgments.

But one thing I would definitely say is I really do think that lawyers on the private side in criminal law should be picked up and made judges. This is not happening because the Intelligence Bureau (IB) report happens to be against such persons - since somehow their old client is Haji Mastan or some other gangster or a don.

By the very nature of a criminal lawyer's work, he will have such people as his clients. But that cannot be a reason to not elevate such persons to the Bench.

Because of this, many times, judges who have had no criminal law practice are made to sit on the criminal roster when they become High Court judges. It is like a criminal lawyer being asked to judge on income tax.

What is your take on the Intelligence Bureau (IB), which has a major role to play in the selection of judges?

At a personal level, I have seen persons not being appointed as judges only because of IB report. The IB in India has also remained as IB of the 1930s or 1940s.

There was a person who became a judge of the Delhi High Court whose nickname was Boozy. So the IB thought that he boozes a lot and that is why his name was Boozy. Thankfully, the report came up before a judge who was from the Delhi High Court and was part of the Collegium. He said the nickname was not because he drank alcohol.

The IB reports are often negative if the government is against somebody. It is controlled by the government and without their approval, it (appointment) cannot happen. Now it is far more politicized in that if one is not aligned to the ideology of a particular party, one will not become a judge.

What is the key reason for the ailing criminal justice system in India?

Criminal law has become a favourite beating stick for everyone. People keep saying that the criminal justice system has collapsed and that the criminal justice system no longer works and it is corrupt etc. But why has the criminal justice system collapsed? It has collapsed because the civil justice system is dead and buried.

For your money recovery, you file an FIR. Under Section 138 of the Negotiable Instruments Act, cheque bouncing is a criminal offence. So for all kinds of civil wrongs, there are criminal cases filed.

Do you think it's time for laws like Sedition and the Unlawful Activities Prevention Act to be scrapped?

Yes. It should have been done, but no government is going to scrap it. You take it from me, every political party cries about it when not in power and then comes to power and misuses it. The Unlawful Activities (Prevention) Act (UAPA) is a classic example.

The Congress government repeals the Prevention of Terrorism Act (POTA) and includes all repealed provisions in the UAPA by a 2004 amendment. Then you make further amendments in 2008 and you give it another force - the NIA.

These are all violations which started with the Terrorist and Disruptive Activities Prevention Act, 1967 (TADA). I feel really sad to point it out, but the Supreme Court has not gone ahead and struck down these provisions which directly violate a person's fundamental rights.

The only good judgment that came was the striking down of the twin bail conditions in Prevention of Money Laundering Act. But it exists in other statutes like the Companies Act.

Do you think the drafting of laws needs serious rethinking?

It has become fashionable for parliament now to provide “copy paste” laws. They make a new law, and provide a special court by lifting from other legislations. They provide for twin conditions for bail and lay down an extended remand period.

This is done by parliament without assessing what the purpose of the law is and without putting any thought into the nature of the offence and people who commit such offences. It is high time the Supreme Court stepped in and struck down certain provisions, which are in complete violation of fundamental rights and infringes the right to a fair trial of a person who is being denied bail and kept in jail for an extended period of time.

We are a peculiar country. If I am to be charged with an offence and I am sitting in front of an ED officer, that officer tells me that I have to give a written statement. If I don't give that written statement, I will be punished under PMLA for not doing so. And if I give that statement, which is incriminating against me, it will be used against me in the trial itself. It is just mind boggling that such provisions exist in our country.

Where is the right to silence? When one applies for bail today, the government will tell the court that he is not cooperating. I am an accused. Why should I cooperate with them? I have a right to silence. But the court will agree and say ‘yes, you are not cooperating’. What does it mean by cooperating? Should I give a confession? Bail provisions have been made to stand on their head.

It was not like this 20 years ago, during the 1970s and 1980s, especially with the jurisprudence that came about due to Justices Krishna Iyer, YV Chandrachud and PN Bhagwati.

The Committee for Reforms in Criminal Laws is deliberating on changes. What is your take on its functioning thus far?

My take is please don't touch criminal laws. Don't touch it with a barge pole, because whatever they (Central government) touch, they destroy.

They came out with the Arbitration Act in 1996, but it has undergone figuratively hundreds of amendments. Then came the Insolvency and Bankruptcy Code (IBC) which has also undergone hundreds of amendments because the laws that are drafted by parliament in the present day are done without any application of mind.

Many of our criminal statutes are laws which have stood the test of time. There is no need to tinker with them. A few alterations can be made on procedural aspects. Why should I go to a magistrate, get a bail application dismissed and then move sessions court? If he doesn't have jurisdiction, why hear it? Simplify some of the procedures.

But my worry is that they (the Committee) want to make statements made to the police under Section 161 of the Code of Criminal Procedure (CrPC) admissible as evidence. They want to somehow make confessions under Section 25 admissible in evidence. They want to tinker with these aspects of criminal law. They may say those are procedural, but they are actually substantive changes. They are on the touchstone of Article 21. Our criminal laws, CrPC, IPC are fine.

The Supreme Court recently observed that the Prakash Singh judgment is used only as a mantra. Do you think there is a need for another round of police reforms?

Reform has to come from the bandobast constable to the sub-inspectors. There should be a crime investigation unit, like we see abroad as portrayed in serials and movies. The job of detectives is not to stand for bandobast duty and salute the passing convoy of a particular minister.

We still have a system where the constable places blood-soiled earth into some bag which is sent nine months later to the forensic lab. The lab report then comes stating that while there is blood, it is not traceable. Reform is needed here, and not in the laws.

There should be forensic laboratories by the dozen in every state. Crimes should be investigated by people who are competent and have the know-how of investigating.

Another aspect which is important is that we have to stop constituting special courts. If we want to constitute a special court, more money should be earmarked for it. There can’t be one Sessions Judge holding his court and also performing the role of a UAPA judge.

It is just becoming fashionable to constitute special courts for everything, but these are again cut and paste from other statutes. Nobody is manning those special courts.

Read the first part of the interview here

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