Remove the shield

The government’s stubborn stand against giving freedom to the CBI to question senior officials as part of investigations into corruption cases strikes at the root of free and fair investigative processes. The insistence on taking prior permission from the government for investigation and prosecution of officials above the rank of joint secretary has been a contentious issue for long. It has been widely criticised as discriminatory and against public interest. The Supreme Court had scrapped this executive privilege as early as 1997 in the hawala case on the ground that it violated the principle of equality before the law but the government later contrived to bring it back on the statute book. The matter has again come up before the court with the government insisting on the need for sanction to question senior officials even in the coal scam case which the Supreme Court is monitoring.

The attorney general’s claim that the provision is needed to protect senior officials from victimisation and vexatious legal proceedings is untenable. The court has not found it a valid defence. The provision is often used to shield senior officials from the consequences of their wrong decisions. Most of the corrupt deals involve a nexus between officials and politicians and therefore politicians have a vested interest in keeping senior officials away from the scrutiny of investigative agencies.  Even in the coal allocation case where irregularities are known to have taken place at the highest level, the government had first refused the CBI permission to question the then coal secretary. If the government could in effect obstruct unhindered investigation  in a highly visible case directly monitored by the court, it is easy to imagine what damage it can do in other cases.

The provision has been used many times to scuttle investigation of corruption cases. Earlier this week the Karnataka high court quashed criminal proceedings initiated by Lokayukta court against a state IAS officer, M K Ayiappa, who had been accused of serious irregularities in decisions relating to government land on the ground that there was no sanction to prosecute the official.  Should officials be allowed to get away on such technical grounds which are invoked arbitrarily by the government, which practically is the political authority? The idea of functional autonomy and fair investigation will have no meaning if  the CBI or any other investigative agency is hamstrung by this mischievous rule. It is misused to protect wrong-doers and to make them unaccountable.

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