The Supreme Court (SC) judgment striking down a provision restraining the CBI from conducting either investigation or inquiry against officials at or above Joint Secretary rank, without Central Government approval, strikes at the root of the politico-bureaucrat nexus that spawns corruption. By declaring Section 6A of the Delhi Special Police Establishment(DSPE) Act, governing the CBI, as unconstitutional and violative of Article 14 of the Constitution promising equality before law to all citizens, the SC has rectified another glaring anomaly in the statute. Section 6A was inserted in 2003 with the “honourable” intent of protecting honest officers from malicious prosecution and to insulate officers at decision-making levels from the anxiety and likelihood of harassment for taking honest decisions. But its murky origins hark back to the landmark 1997 Vineet Narain case where the Supreme Court struck down the “Single Directive”, an executive order issued by central government ministries to the CBI mandating the agency to first seek approval before probing top babus. How the outlawed single directive transmogrified into Section 6A is a telling tale of the conflicting imperatives of the executive, legislature, judiciary and civil society.
Between the executive’s job to govern and Parliament’s to make laws, many iniquitous laws have landed on the chopping block through an activist judiciary upholding the Constitution and a vigilant civil society assuming a watchdog’s role. The Centre’s defence that Section 6A was necessary to shield honest officers ran counter-intuitive to the fact that a dishonest babu and the minister-in-charge sitting in judgment upon 6A could be in cahoots. Section 6A does not just prevent the CBI from lodging a case against a bureaucrat; even to conduct its mandatory preliminary inquiry before it can lodge a regular case, the CBI needs the minister’s approval. It also prejudices secrecy in such high-level graft case where evidence can disappear quickly. Section 6A also affirmed the government’s prerogative to stonewall such requests.
Before Tuesday, central ministries has stalled 15 such matters for over a year using Section 6A. This is despite a September 2011 office memorandum directing ministers-in-charge to accord approvals within three months.
Though the protection accorded under Section 6A of the DSPE is withdrawn, it is not a lost cause yet for bureaucrats. Section 19 of the Prevention of Corruption Act and Section 197 of the Criminal Procedure Code mandates that investigating agencies secure prosecution sanction from the authority concerned before a trial court can take cognisance of charge-sheets against public servants. This is yet another level at which trials continue to be stalled. The Central Vigilance Commission is awaiting prosecution sanction against 53 officials in 28 cases for over four months. Ironically, a January 2012 Supreme Court ruling that the government must decide within three months on granting or withholding prosecution sanction is still in effect. The steady strides made by the judiciary into examining the CBI’s ability to function unhindered in graft cases must now extend to the concept of prosecution sanctions. The CBI sought no prosecution sanction against former telecom minister A Raja but did so against former Maharashtra Chief Minister Ashok Chavan allowing the latter to get away. Like other citizens, public servants too must directly face the test of prima facie evidence against them passing muster in a court before being put on trial. For too long the bogey of malicious investigation and victimising honest bureaucrats has been bandied to stall all graft cases. On its part, the CBI must ensure a robust internal mechanism that prevents wanton or malicious inquiries against public servants.