The Maharashtra government’s U-turn on corruption

On June 6, 2015, the Maharashtra Cabinet decided to amend Sections 190 and 156(3) of the Code of Criminal Procedure, to the effect that a magistrate would not be able to take cognizance of a complaint against any public servant (this includes MLAs, bureaucrats, corporators and even elected members of municipalities and panchayats) without the prior sanction of respective competent authorities in the government. The respective investigating agencies are restrained from even conducting preliminary enquiries into the complaints and allegations without securing the prior sanction from the government. The cabinet has cited and relied upon the Supreme Court’s October 1, 2013 decision (delivered by a bench of two judges) in Anil Kumar & Ors. V. MK Ayappa & Ors in order to justify its decision regarding these amendments.

The operative part of the judgement is in paragraphs 9 and 13, which taken together, say:
“A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty…..Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to herein above, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) CrPC.”

Erroneous reliance on an invalid law

The Supreme Court’s decision in Lalita Kumari v Govt of UP & Ors, delivered on November 12, 2013 by a Constitution Bench of five judges prevails over the Anil Kumar & Ors. V. MK Ayappa & Ors case. In Lalita Kumar, the court gave categorical directions regarding filing of FIRs and conducting preliminary enquiries. These are:

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether a cognizable offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week.  It must disclose reasons in brief for closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case.

The categories of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases

The court was clear- FIRs must be filed if the information disclosed a cognizable offence, and a preliminary enquiry was not an investigation or trial, but only an essential process for ascertaining the veracity of the information. Thus, in the scheme of things as the court held, mere conduct of such an enquiry would not be harassment or prosecution of public officials; in fact, it would act as a strong safeguard against vexatious, frivolous or malicious complaints of corruption. 

Any provision requiring prior sanction for preliminary enquiries is unconstitutional. 

On May 6, 2014, in Dr. Subramanian Swamy v Director, CBI & Anr., a Constitution Bench of the Supreme Court struck down Section 6E of the Delhi Special Police Act. This provision required the CBI to seek prior sanction of the respective competent authorities before initiating any preliminary enquiry against a public servant and government officials of the rank of Joint Secretary and above In the words of the court: 

“It is difficult to justify the classification which has been made in Section 6-A because the goal of law in the Prevention of Corruption Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences.” 

Therefore, even if the government’s proposed amendments are carried through in the Assembly and are granted gubernatorial assent, they would be in the teeth of the law laid down by the Supreme Court. Article 141 of the Constitution says that such law is the law of the land, and binding on the government and all its agencies. In such a scenario, the amendments would be prima facie illegal, and would not survive a constitutional challenge. 

Backtracking on promise, backpedalling on accountability?

On November 2, 2014, almost immediately after assuming office, Chief Minister Devendra Fadnavis in an interview to NDTV, had declared that he would demonstrate a zero-tolerance approach towards corruption, and no prior sanction would be required if there was prima facie evidence of corruption against a public servant. 

Not only that, on December 20, 2014, as reported, he stated in the Assembly that there would be no delay, either deliberate or inadvertent, in granting sanction to pending cases. He is even said to have stated that he had cleared all the files which had been brought to him. 

However, as of February 2015, the facts belie his claims. The Maharashtra ACB is hamstrung by 381 cases of corruption pending sanction before Open Enquiries, and of them, 97 relate to officials in the Home Department, a portfolio held by the Chief Minister himself. Of those 97, 72 pertain to allegedly illegal acts committed by personnel and officers of the police. 

Surely, the CM needs to disclose to the public if his government, as publicised, is fighting corruption, or its own anti-corruption agencies.