Kartikeya Tanna

In our country, as in any democratic society, the body of elected representatives is supreme with respect to its authority to pass laws. 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 the “grammar of anarchy”, as famously quoted by Babasaheb Ambedkar. The idea behind such criticism is that in an open democratic independent society, there should be no place for violent responses, or even satyagraha, to protest against unjust laws or systems.

We citizens are told to place our faith in the Parliament. All throughout the Jan Lokpal agitation by Anna Hazare and his team, the government representatives kept reminding the nation of the vital “Parliamentary processes” which have to inevitably be resorted to 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 concerned government department prior to investigation of corruption charges against senior bureaucrats of the very department? What should the nation think of the seemingly urgent willingness of our Members of Parliament across the political spectrum to entrench as law a provision which was severely criticized by the Supreme Court of India when existing as a Government directive?

Limitations of Ambedkar’s Grammar for Independent India

In midst of several roars of revolution and acts of satyagraha since independence, there have been several unsung heroes who have diligently devoted their precious time in combating the vastly permeated menace of corruption through these very constitutional means which conform to Ambedkar’s “Grammar” for independent India. For example, the efforts of Shri Anil Divan who was the amicus curiae in the Public Interest Litigation filed in the Supreme Court in the case of Vineet Narain v Union of India & Ors which directed the creation the Central Vigilance Commission are well known.

Sometimes, however, laws passed under the inalienable supremacy of Parliament continue to thwart months and years of anti-corruption efforts by these crusaders. One such provision exists in the Central Vigilance Commission Act passed by the Lok Sabha in 2003 (“CVC Act”) through a mere voice vote which has ignored the Supreme Court’s strong views on an identical executive order having an identical effect. The Jan Lokpal Bill, if passed as law, will nullify this provision. The Jan Lokpal Bill may or may not be passed in its entirety, but this provision seeks to create the very mischief that prompted the mass to feel very strongly against the Government and politicians.

That this provision must be repealed is trite statement if our elected representatives are truly serious about combating corruption. That it may continue to be on the statute book is probable. Nonetheless, its history is worth learning about.

An Executive directive held null and void

The Delhi Special Police Establishment Act, 1946 (“DSPE Act”) is the primary law governing the functioning and jurisdiction of the CBI. Section 6A of the DSPE Act (inserted by Section 26 of the Central Vigilance Commission Act, 2003) states as follows:

Approval of Central Government to conduct inquiry or investigation.-(1) The Delhi Special Police Establishment shall not conduct any enquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988)  except with the previous approval of the Central Government where such allegation relates to:

Prior to Vineet Narain, the substance of this provision existed in the form of an Executive directive issued by the Central Government (referred to as the “Single Directive”). This Single Directive was a consolidated set of instructions issued to the CBI by the various Ministries/Departments since 1961. The stated objective of the Single Directive, which did not extend to any non-official acts, 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.” It was also stated that absence of any such protection to them could adversely affect the efficiency and efficacy of these institutions because of the tendency of such officers to avoid taking any decisions which could later lead to harassment by any malicious and vexatious inquiries/investigations. While examining the validity of this Single Directive, the Court held it null and void on an interpretation of the scheme of the DSPE Act as it then stood. Once the jurisdiction was conferred on the CBI to investigate an offence via notification under Section 3 of the DSPE Act, the powers of investigation could not be curtailed by any executive instruction. Therefore, in the absence of any statutory requirement for prior permission or sanction of the Executive for investigation, the Central Government could not impose it as a condition precedent for initiation of the investigation.

The Court also opined that the real effect of the Single Directive 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 corruption could not be proved on direct evidence, but on a nuanced understanding of decision-making processes in our country’s governance, the Court’s recommendation was to have an expert body within the CBI instead of preventing CBI from initiating investigations against decision-making officers.

Make it a law!

Indeed, as a corollary to the major basis of the decision, the Court agreed that if the substance of the Single Directive was provided in the very statute which enacts the offences the CBI is authorized to investigate, i.e. the DSPE Act, the courts would, in that event, have to take that into consideration. As it turns out, that is exactly what happened in 2003.

In enacting the CVC Act pursuant to the Court’s directives, the Parliament has codified and reintroduced the Single Directive. The legislative history of the CVC Act is instructive and is a glaring revelation at how perfectly valid Parliamentary processes have created this thwarting provision. I will suggest readers to also review an exhaustive report prepared by the Commonwealth Human Rights Initiative  for a detailed account of the CVC Act and a press report in The Hindu for the news coverage.

Legislative history

[For a detailed timeline of the legislative history of the Central Vigilance Commission Act, 2003, click here]

After the Court’s decision in Vineet Narain, the Law Commission prepared a draft CVC Bill which did not contain the Single Directive. The Law Commission’s draft was deliberately withheld by the Secretaries who instead placed their own draft Bill before the Cabinet. Mr. Ram Jethmalani, the then Law Minister and the Law Commissioner were reportedly displeased due to this deliberate withholding. The Secretaries’ draft did contain the Single Directive even though it required the approval of the CVC prior to initiating investigation. It may, from a cursory glance, seem that the prior approval of the CVC may be a good idea considering the integrity of the CVC. However, the Secretaries’ draft was well-calculated. In Vineet Narain, the Court had directed that selection for the post of Central Vigilance Commissioner should be made by a Committee consisting of the Prime Minister, Home Minister and the Leader of the Opposition from a panel of “outstanding civil servants and others with impeccable integrity”. The Secretaries’ CVC Bill conveniently omitted the category of “others” and confined the selection to a panel of civil servants alone. Additionally, in the CVC Act, 2003, there was no insistence on having officers who were “outstanding” or have “impeccable integrity.” It may be remembered that in the recent case in the Supreme Court on the legality of the appointment of Mr. Thomas as the CVC, the Court held the requirement of the CVC to have “impeccable integrity” as sine qua non. The requirement of prior approval of the CVC would not, therefore, provide any stronger protection than that provided by the requirement of seeking approval from the Central Government.

Shri Anil Divan filed strong objections to this draft to which the then Attorney General Shri Soli Sorabjee responded with an agreement to “fine-tune” the draft. Around six months thereafter, the Lok Sabha was dissolved and fresh elections held. Immediately thereafter, a draft was referred to the Joint Committee of both Houses of Parliament whose Chairman was Shri Sharad Pawar. The Joint Committee presented a report and attached a draft Bill which contained the Single Directive. This time, however, the draft Bill required the approval of the Central Government (and not the CVC as in the earlier draft) prior to initiating investigation. Shri Kuldip Nayyar, a member of the Joint Committee, dissented from the findings of the Joint Committee lamenting 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.”

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

Furthermore, in 2003, the CVC Act was passed in the Lok Sabha by a mere voice vote rather than recorded voting. The significance of this is that if the nation wants to find how their individual Members of Parliament voted on the Bill, the record simply does not exist!

Strengthening the CBI

A mere cursory glance at the scheme of events indicates that, at times, the scams are initiated at the bureaucrat level; most other times, at the ministerial level. Bureaucrats are often unwilling, whether due to fear of vendetta or personal motives, to withstand cooperation in the scams initiated by the political class in the most clandestine sophisticated manner. In such a situation, a provision that requires the CBI to get approval of the Central Government before initiating investigations into potential scams defeats the very purpose of preventing the scam from metastasizing further into the country’s vast distribution channels. Even though the CBI is often blamed for pleasing political bosses in power, there can be no doubt that the CBI has excellent and admirably capable officers who, if provided sufficient autonomy, can exercise effective policing powers in such corruption cases that continue to loot our nation. Once, however, the money from such scams crosses borders into safe havens abroad, it becomes almost impossible to retrieve the money back.

It is, indeed, true that despite such stifling provisions in our anti-corruption laws and the protective machinery in place, the Supreme Court has consistently ensured stringent investigations of such instances of corruption through a “continuing mandamus” to the CBI. The problem, one which is not difficult to recognize, is that if the country’s apex court is approached by anti-corruption crusaders on almost every occasion to order the CBI to perform its primary role, a situation is being created where a court of highest appeal will effectively determine whether investigation is necessary to commence proceedings at the lowest judicial level!

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

Curbing the mischief

Despite the concerted attempts by bureaucrats and elected representatives to weaken our country’s institutional framework through perfectly Parliamentary means, the Supreme Court has time and again prevented many attempts. However, under the principle of separation of powers, the Supreme Court cannot rectify every wrong or intentional inefficiency in governance and law-making. Therefore, while the Court can strike down an Executive directive containing identical prohibitions, and indeed it did so in Vineet Narain, there may be significant limitations in the Court’s authority to strike it down when enacted as a valid law by the Parliament of India. The only way left is to petition the Central Government or elected representatives in repealing this provision. Given the fact that various attempts at highlighting certain anomalies in our country’s laws have fallen on deaf indifferent ears, the staunchest critics of fasts as means of protest may well begin to concede the sheer necessity for the same.

It may, therefore, be useful to see the revolutionary roar which emerges during popular agitations as a catalyst for inspiring many new entrants to participate in the process of nation-building and institution-nurturing. Indeed, a fast alone may not eradicate corruption, but, with the moral conscience of many in the nation being raised, more skilled minds are added to that team of unsung heroes who continue to take the fight against corruption forward at the systemic level. The loud roar is as necessary as the silent labor. Since over a century, India witnessed a healthy symbiosis between the two.

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! The seemingly innocuous provision in the form of Section 6A of the DSPE Act must be repealed. And the Central Government or the Parliament must take the initiative if it is serious about giving the country confidence in its willingness to combat corruption.

Kartikeya is a New York attorney and a partner at Tanna Associates, a multi-practice law firm in Ahmedabad. He can be contacted at kartikeya@tannaassociates.com.

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