dna edit: Shielding each other

The Centre’s insistence on holding on to its power to shield bureaucrats from corruption charges is untenable. Under the Lokpal and Lokayukta Act, 2013, the Lokpal has the power to grant or refuse prosecution sanction for public servants in corruption cases referred by it to the CBI or any other investigating agency. Too often, governments have relied on Section 197 of the Criminal Procedure Code and Section 6A of the Delhi Special Police Establishment (DSPE) Act, which governs the CBI, to unfairly deny investigating agencies a fair chance to investigate and prosecute corrupt public servants. Only recently, Maharashtra governor K Sankaranarayanan denied the CBI’s plea seeking sanction to prosecute former Maharashtra Chief Minister Ashok Chavan under Section 197. Last year, the CBI was denied permission under Section 6A by the Ministry of Corporate Affairs to even question a former coal secretary, who was then a member of the Competition Commission, in the coal block allocation scam.

The Centre has clung to these discriminatory provisions unavailable to ordinary citizens — violating the constitutional promise of equality before law — on the ground that honest bureaucrats would be at the mercy of frivolous complainants without such a shield. In the Supreme Court, the Centre’s counsel argued that bold decision-making would suffer and lead to policy-paralysis. The lawyer also rightly pointed out that the State is the victim of corruption but his contention that the State can judge best whether a particular allegation tantamounts to corruption is problematic. In matters of self-interest, the political and bureaucratic class have often diverged from the interests of the State. It is not difficult, then, to understand that vesting the power to grant inquiry and prosecution sanction with supervising or competent authorities, who the accused official reports to, can lead to travesty of justice when even the superiors cannot claim impunity from suspicion.

The five-judge Constitutional bench of the Supreme Court testing Section 6A of the DSPE Act for arbitrariness has a tortuous array of past judgments and executive actions to contend with. Section 6A was introduced in 2003 after a similar provision was struck down in 1997 by the court in the Vineet Narain case (the Hawala case). Since then, several judgments have ruled in different ways about the need for prosecution sanction. The court also posed an interesting question: it asked the Centre to list the benefits of re-enacting the provision in 2003 after it was struck down in 1997.
Other than slowing down the pace of corruption investigations — the conviction rate in corruption cases is 21 per cent — the government would be hard pressed to point out other benefits. As on December 31, 2013, the Central Vigilance Commission website lists 25 cases involving 43 officials belonging to various departments, in which the prosecution sanction has been pending for over four months.

While protecting bureaucrats from victimisation is laudable, the Centre has done little to dispel perceptions of a neta-babu nexus. If political whims decide prosecution or inquiry sanction and the transfers or posting of bureaucrats without granting them fixed tenures, this stranglehold will never loosen. With the government shouting from the rooftops about having given the country its long-awaited Lokpal, how about relinquishing these powers of sanction to the Lokpal or the CVC. The Centre’s defence of Section 6A in the Supreme Court exposes the hollowness of Rahul Gandhi’s anti-corruption, yet again.