Raid as political vendetta?

The Central government’s defence of the Tuesday morning (December 15, 2015) raid at the offices of the Delhi Chief Minister has been based on the existence of some allegations of corruption against his Principal Secretary. Surely, they (the central government) say, the CBI can act to investigate and bring to justice this errant officer. To oppose the CBI’s actions yesterday,  is to oppose the fight against corruption. While this is a seductive argument, as all simplistic arguments tend to be, it is also perniciously incorrect. The CBI’s act of raiding the office of the Chief Minister was clearly intended to send a message to a political opponent. And to the bureaucracy as a whole. To anybody familiar with criminal law, there are many aspects of this raid which raise troubling questions about the CBI and its functioning.

The raid could have gone very differently. Imagine the chief investigating officer approaching the Chief Minister with a written demand/request/notice for producing the desk and files of his Principal Secretary for examination and scrutiny. Could the Chief Minister have refused? Section 91 of the Code of Criminal Procedure read with the Delhi Special Police Establishment Act grants a CBI officer, above the rank of a sub-inspector, the power to make such a written request. I use the word ‘request’ here but Section 91 makes it clear that this would not be a request, but a binding order, violation of which is punishable under the Indian Penal Code. The Chief Minister could not have refused to comply with it and he would have had to hand over the files and documents asked for. He could, however, have insisted that since there are many (other) sensitive files kept in the custody of the Prinicipal Secretary which ought to be protected from legal seizure, that the team carrying out this inspection should be accompanied by a responsible Delhi government official.

The CBI team would (or should) have welcomed this as they would require an impartial public witness to the inspection of documents and any consequent seizure. Any government officer present in the Secretariat would have served the purpose. This is standard procedure. The presence of this witness would have buttressed the sanctity of any incriminating material recovered during such an inspection. This witness would have come to Court and testified to support the CBI’s case against the accused. CBI had everything to gain by following the procedure laid down by law. It would have been a new feather in its cap.

Yet, they chose to enter the Chief Minister’s office without any warning, keep him and his staff out and then proceeded to search the office hoping that everybody would take them at their word which was that they had carried out the search in accordance with law and procedure and, most critically, not touched any files which they were not relevant to the exercise. CBI officers are well-trained investigators and are also well versed in the ways of the politics of power. It is therefore safe to assume that the manner of search and ignorance of the law was deliberate. It is also pertinent and relevant to mention here that under Section 165 of the Code of Criminal Procedure, the CBI enjoys the power, in appropriate cases, to carry out a search without any prior warning if they are of the opinion that evidence may be lost or destroyed due to any delay in the search. Here, there was apparently no such danger. The CBI itself has said that a search warrant was obtained from the Magistrate’s Court which can only be obtained in a situation where it is feared that the person from whose custody evidence is sought may destroy that evidence. We do not know the reasons given to the Magistrate by the CBI at the time of obtaining this search warrant but they presumably made out a case for imminent danger of destruction of evidence. If the CBI were actually afraid that Mr. Rajender Kumar could interfere with the evidence they could have detained or even arrested him, but that would have meant that the matter would immediately land up before the Courts where the CBI — unlike when they merely ask for a search warrant — would have had to actually face scrutiny of their actions.

If the CBI’s intentions were honourable it could have inspected all of Rajender Kumar’s files with the cooperation of the Delhi Government. The question that arises is why the CBI chose not to even approach the Chief Minister. This is baffling

A raid, on the force of a search warrant issued by a Court, could or should have been undertaken only if there was an apprehension that the person having control over a certain thing (the desk and files of the PS to the CM, in this case)would not produce it before the police of his own accord, when directed under law, to do so. In this case, documents were available with the officials of the Delhi Government, including the Chief Minister. If the CBI’s intentions were honourable it could have inspected all of Rajender Kumar’s files with the cooperation of the Delhi Government. The question that arises is why the CBI chose not to even approach the Chief Minister. This is baffling.

If the investigation had been carried out with the aid of the Chief Minister, there would have been no controversy. The Central government would, however, have lost an opportunity to blame Arvind Kejriwal for shielding the (allegedly) corrupt. Kejriwal has also alleged that the target of the CBI are the files relating to Mr. Jaitley’s tenure as president of the Delhi and District Cricket Association. Kejriwal has also raised the other, rather pertinent point that if the allegations of corruption pertain to a posting Rajender Kumar had with the previous government, there was no particular purpose to be served by searching the files he was handling in his current posting.

The true intent behind the actions of the CBI are perhaps best left to speculation at this stage. This kind of speculation tends to border on the sensational and thus overshadows the seriousness of the issue on hand, which is the malicious use of a central investigating agency by the government of the day, to browbeat its political opponents.

The strategy of the Central government, key members of which were members of the Gujarat government in days not long gone by, seems to follow the Gujarat model of targeting their opponents. The strategy of tiring out opponents through incessant litigation by misusing state machinery is an integral part of this model. Police officers like Kuldeep Sharma, Rahul Sharma, Satish Verma, R.B. Sreekumar and Rajneesh Rai all of whom have been brought into sharp conflict with the Gujarat government they once served, simply because, at the relevant time, they did their job within legal and Constitutional boundaries. Yet they have had to fight a vindictive state apparatus, every step of the way, simply for retaining terms of service or a place within the force.  All of them have been targeted with charges that are absurd (these include truth-telling before the Nanavati-Shah Commission) and have been forced to approach the Courts for relief from this government onslaught. The same has been done to activists and politicians from the opposition, or at least those among them who could not be co-opted by the government.

It is a strategy of death by attrition, of miring all opposition figures in manufactured legal wrangles which have no future but are sufficient to keep any individual or organisation, both distracted and exhausted. One cannot, at this stage, speak about the culpability or innocence of Rajendra Kumar (principal secretary to chief minister, Arvind Kejriwal). It is however unfortunately, quite easy to see that he is the victim of collateral damage in this particular, ill conceived political battle. Bureaucrats, as a breed play safe, and this message coming from the very top, sends a sinister message to others serving political opponents. After all, as long as all political opponents are busy countering these manufactured attacks, the work of governance or what passes for governance these days, can carry on, unquestioned.

(The writer is a Delhi based lawyer) 



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