Historic verdict

The British had come to India to rule; so they wanted to protect their officers. They did not have such a provision in their own country.

It is heartening that the Supreme Court has stood up like bulwark against any sort of discrimination and upheld the sublime principle of equality embedded in the Constitution. In a historic judgment, a five-judge Constitution bench of the Supreme Court struck down Section 6-A of the Delhi Special Police Establishment (DSPE) Act which mandated that the Central Bureau of Investigation must obtain prior permission of the Central government to investigate allegations under the Prevention of Corruption Act, 1988 against the employee of the Union government of the level of joint secretary and above. The Court set aside Section 6-A as arbitrary and violative of Article 14 of the Constitution which guarantees the right of equality before the law or the equal protection of the laws. However, babus are peeved and complain that it will discourage them from taking bold decisions which will eventually lead to policy paralysis.

Article 14 which guarantees “equality before the law” and “equal protection of the laws” clearly rules out any special privilege in favour of any individual irrespective of his rank or position. Professor A V Dicey explained the concept of equality as it has been practiced in England in these words: “With us every official, from the prime minister down to a constable or a collector of taxes, is under the same responsibility for every act done without any legal justification as any other citizen.”

However, the idea of equality is an anathema to the privileged class which ingeniously innovates justifications for creating privileges for itself. Section 6-A of the DSPE Act has its genesis in the “Single Directive” (SD) which was introduced in 1980s when P Chidambaram was the minister of state for personnel. The justification adduced was that officials of the joint secretary level and above take policy decisions and exercise discretion. Hence, they needed to be protected from vexatious and frivolous litigation. 

When the British government enacted the Criminal Procedure Code, government servants were given protection as Section 197 provides that prosecution against them cannot be launched without prior sanction of the government. The British had come to India to rule; so they wanted to protect their officers. They did not have such a provision in their own country. After Independence, the Government of India, following in the footsteps of the colonial rulers, not only refrained from tinkering with these laws but provided for similar protections while legislating other laws. Thus, Section 19 of the Prevention of Corruption Act also enjoins the investigating agency to take prior sanction from the government for prosecution. So, senior bureaucrats had double protection- both from investigation as well as prosecution. 

Vineet Narain’s case

The Supreme Court, in Vineet Narain’s case, set aside the SD on the ground that once the jurisdiction is conferred on the CBI to investigate an offence by virtue of notification under Section 3 of the DSPE Act, the powers of investigation are governed by statutory provision which cannot be curtailed by an executive instruction. The Court was quite forthright: “The law does not classify offenders differently for treatment there under, including investigation of offences and prosecution for offences according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with the law, which is equal in its application to everyone.”

It was after this judgment that the government tried to give it statutory form by incorporating it in the CVC Bill as the Supreme Court had directed in the same judgment to give statutory basis to the CVC. When the bill was referred to the standing committee of Parliament, all parties scrambled to have provision to protect senior civil servants. Kuldip Nayar was the only dissenting voice in the committee and he was astounded to see the solidarity of political parties on the issue. The reason is obvious; if senior bureaucrats do something illegal, it is with the concurrence of the minister concerned. 

It is true that honest civil servants must not be harassed. But the government could not adduce a single instance of harassment when the SD was not in force between 18 December 1997 (the date of Vineet Narain judgment striking down the SD) and 11 September 2003 (when the CVC Act came into force) except the period between 25 August 1998 and 27 October 1998 when the CVC Ordinance, 1998 was in force.  Moreover, there is no corresponding provision for officials of state government. Besides, local police of the state government are not required to take any prior approval for investigation. So the argument of frivolous litigation is hocus-pocus and was rightly debunked by the Court. Further, seeking prior approval amounts to alerting the accused who gets full opportunity to destroy the evidence. Many a time, senior officer, on receiving application for approval, sends the file to that very officer for comment against whom allegations have been made. In umpteen number of cases, sanctions have been delayed indefinitely and sometimes denied.

However, the police, which is perceived as one of the most corrupt institutions, cannot be given unbridled power. Power must be accompanied by accountability. There should be express provision that if any policeman is found to have acted out of malice or ill-will, he must be awarded extra-ordinary punishment. Corruption has spread like cancer infecting the whole body politic of the country. It must be extirpated if the country is to survive and grow. It means strengthening the institutions. The CBI also needs to be made more professional and credible. Its volte face in several cases pertaining to political leaders betrays how it can be used to settle political scores or gain political favours.