The Supreme Court has been coming up with judgments directed at institutional reforms. It gave a historic judgment on police reforms in 2006 and another one on civil services reforms in 2013. And now, it has declared Section 6 (A) of the Delhi Police Establishment Act as “unconstitutional”, thereby removing a major administrative hurdle in the CBI conducting investigations or launching prosecutions against officers of the rank of Joint Secretary and above.
What is, however, terribly
disappointing is that the bureaucracy refuses to see the writing on the wall
and insists on maintaining its privileged status as an elite service not fully
accountable to the anti-corruption laws of the land. As far back as 1997, the
Supreme Court had, in Vineet Narayan and others vs Union of India, struck down
Section 6 (A) of the DPSE Act on the ground that it was not essential for
Central government’s superintendence over the CBI. The bureaucracy tried to
re-introduce Section 6(A) through an ordinance on August 25, 1998, but the same
was deleted at the intervention of the apex court.
The bureaucracy struck back five
years later when Section 6(A) was inserted by Section 26(C) of the Central
Vigilance Commission Act, 2003. It inter alia provided for obtaining the
previous approval of the Central government for the conduct of any inquiry or
investigation for any offence alleged to have been committed under the
Prevention of Corruption Act, 1988, where allegations related to officers of
the level of Joint Secretary and above.
The constitutional validity of
Section 6(A) was challenged through two writ petitions, both filed under
Article 32 of the Constitution, one filed by Dr Subramanian Swamy and another
by the Centre for public interest litigation. It was argued by the petitioners
that the impugned provision was subversive of independent investigation of
culpable bureaucrats and hit at the core of rule of law and the principle of
independent, unhampered, unbiased and efficient investigation. The government,
on the other hand, defended the provision on the ground that those who are in
decision-making positions, those who have to exercise discretion and those who
have to take vital decisions could become targets of frivolous complaints and
therefore needed to be protected.
The court came to the conclusion that
the classification made in Section 6(A) on the basis of status in the
government service was not permissible under Article 14 of the Constitution as
it defeats the purpose of finding prima facie truth into the allegations of
graft, which amount to an offence under the PC Act, 1988. It observed that “the
corrupt public servants, whether high or low, are birds of the same feather and
must be confronted with the process of investigation and inquiry equally”. The
court went on to say that “corruption is an enemy of the nation and tracking
down corrupt public servants and punishing such persons is a necessary mandate
of the PC Act, 1988” and that “it is difficult to justify the classification
which has been made in Section 6 (A) because the goal of law in the PC Act,
1988 is to meet corruption cases with a very strong hand”.
The court, therefore, held that
Section 6(A), which required approval of the Central government to conduct any
inquiry or investigation into any offence alleged to have been committed under
the PC Act, 1988, was invalid and violative of Article 14 of the Constitution.
The court has thus unshackled the CBI to an extent
and given it full latitude in conducting investigations and launching
prosecutions against senior government officers. The CBI would now have to
doubly ensure that its investigations are absolutely impartial and that they
inspire public confidence even in cases involving members of the ruling party
or those in alliance with them or even having tacit understanding with them.
Much more, however, remains to be done. The CBI should in fact, as recommended
by the LP Singh Committee and the parliamentary committees, be vested with
“appropriate statutory backing to take suo moto cognisance of crimes (which)
would in no way affect the essentials of our federal structure”. The parrot has
started fluttering its wings. It will, however, still take quite some time
before it is able to fly.
(The Indian
Express 17 May 2014)
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