A provision in anti-corruption legislation mandates the Central Bureau of Investigations (CBI) to seek government approval before investigating senior bureaucrats. It is important to debate its necessity, merits and demerits.

It is beyond doubt that Parliament of India has the supreme authority to enact laws in our country. Many challenges to the sovereignty of the Parliament, whether through violent extremism or non-violent civil disobedience, have been severely criticized for their promotion of, what Ambedkar would call, the ‘grammar of anarchy’. We citizens are told to place our faith in the Parliament and the vital Parliamentary processes necessary for passage of any law.

What confidence, then, must a nation suffering from utterly deplorable corruption have in Parliamentary processes when a law passed by the Parliament in the most hushed up manner requires the CBI to obtain approval of the Central Government prior to investigation of corruption charges against senior bureaucrats of that very government?

How should crusaders engaged in anti-corruption efforts in full spirit of Ambedkar’s grammar for independent India respond to such laws passed under the inalienable Parliamentary supremacy?

This crucial law which has missed debates held so far on various instances of impasse between Team Anna and the Government of India on the issue of CBI’s autonomy, can be found in the legislation applicable to the CBI – the Delhi Special Police Establishment Act, 1946.

To say that this thwarting provision must be repealed to nab the corrupt babu who is, arguably, more insidious than the corrupt neta is trite. That it may continue to be on the statute book is probable. Nonetheless, the law’s history is worth learning about.

First, the provision – Section 6A of the DSPE Act. This provision essentially states that the CBI shall not conduct even an enquiry or investigation into any instances of corruption against employees of the level of Joint Secretary and above without the prior approval of the Central Government.

Previous approval of the ‘Central Government’ effectively means bureaucrats who handle the incoming and outgoing files.

An Executive directive held null and void.

Prior to the landmark case of Vineet Narain vs Union of India in 1998, the substance of this provision existed in the form of an executive directive issued by the Central Government (“Single Directive”) to the CBI. Its stated objective was to “protect decision making level officers from the threat and ignominy of malicious and vexatious inquiries/investigations” and thereby “relieve them of the anxiety from the likelihood of harassment for taking honest decisions”.

The Supreme Court in Vineet Narain held the Single Directive null and void under the DSPE Act as it then stood (those interested in a legal analysis may click here).

The real effect of the Single Directive, as the Court noted, was to “thwart investigation of a cognizable offence instead of promoting the cause of justice by directing further investigation leading to a prosecution.” Even in situations where proving corruption required a sophisticated understanding of complex decision-making processes in governance, the Court recommended having an expert body within the CBI instead of preventing CBI from initiating an inquiry.

Never mind Vineet Narain, make it a law!

Despite the Court’s criticism in the Vineet Narain case, the Parliament enacted the Single Directive as a law – as Section 6A of the DSPE Act (inserted via the CVC Act, 2003). How perfectly valid Parliamentary processes created this thwarting provision provides a glaring revelation. Those interested in a detailed timeline may click here.

After the Court’s decision in Vineet Narain, the Law Commission prepared a draft legislation which omitted (rightly) the Single Directive. Surprisingly, however, the Law Commission’s draft was reportedly withheld by the senior bureaucrats who instead placed their own draft Bill containing the Single Directive before the Cabinet for approval. This displeased Ram Jethmalani, the then Law Minister, as well as the Law Commissioner, as The Hindu reported.

Despite a series of objections from various quarters and responses from the government, the Single Directive was passed as law. This led Kuldip Nayyar, a dissenting member of the committee which oversaw the drafting process, to lament that “pliable public servants who carry out the errands of the political masters will go scot free” and “corrupt officers will rule the roost due to their proximity to the seats of power.”

Nayyar’s views resonate louder than ever in the power corridors of New Delhi today!

Moreover, the CVC Bill was passed by a mere voice vote. If the nation wants to find how their individual Members of Parliament voted on the Bill, the record simply does not exist. Those interested in reading about this further may read the report prepared by the Commonwealth Human Rights Initiative

Are there any justifications? Some honest bureaucrats have unfairly faced the personal agendas and whims of politicians of differing factions as and when each such neta assumes power. The bureaucrat is understandably wary of being the fall guy in the saga of political vengeance exercised through the misuse of CBI.

Generally, however, bureaucrats have milked the system for their own personal pockets irrespective of the neta in power. In fact, in many ways, the bureaucrat has created systems enabling the milking.

Therefore, mandating the CBI to obtain permission of the government defeats the critical necessity of preventing a scam from metastasizing into the country’s vast distribution channels. The CBI has excellent capable officers who, if provided sufficient autonomy, can exercise effective powers in such corruption cases. The CBI’s efficiency after the SC has stepped in is there for everyone to see. However, while an SC ordered enquiry is able to put the guilty behind bars, the money sucked out of the taxpayers’ treasury has, by that time, traversed complex financial layers and, often, various geographical regions.

That a strong and autonomous CBI is necessary is stating the obvious.

The Jan Lokpal Bill seems a distant dream, but small changes like repealing this law can go a long way. While Team Anna wants the Jan Lokpal to have control of the CBI, the CBI has demanded autonomy. Team Anna has now given the government up to 2014 to pass the law. What happens in that regard remains to be seen. However, section 6A of the DSPE Act must be repealed if our elected representatives are serious about giving the country confidence in its willingness to combat corruption.

There is no other option. A genuine start here may begin the crucial process of co-opting the disgruntled millions ready to embrace the opportunities a growing India offers.

(PS: The provision in the Delhi Special Police Establishment Act, 1946 was passed under the NDA rule in 2003 despite vocal objections by Ram Jethmalani, among others, who is now a member of the BJP. It only goes to show the sheer strength of the bureaucrat lobby in having its way despite the party in power and despite the adverse impact to the nation. Globally, several countries and international treaties have seriously started removing such similar “immunities from investigation” including even various African countries.)

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Kartikeya Tanna

Kartikeya is a Partner at Tanna Associates Advocates in Ahmedabad. He is licensed to practice law in India and New York. He regularly does commentary on legal and current affairs.

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