Skip to main content

Corruption: Implications of Supreme Court’s refusal to give immunity to babus


By Venkatesh Nayak*
The media has reported the latest judgment of the Supreme Court (Constitution bench of five judges) striking down a provision of the law that governs the functioning of the Central Bureau of Investigation (CBI), India’s premier anti-corruption investigation agency, regarding the procedure for inquiring into allegations of corruption against civil servants of the rank of joint secretary and above. In an Article 32 petition filed by Dr Subramaniam Swamy and the Centre for Public Interest Litigation (CPIL) led by Prashant Bhushan (photo), the Supreme Court has struck down the requirement of taking the approval of the Central Vigilance Commission before initiating even an inquiry into complaints of corruption against senior level civil servants.

The Issue

Several decades ago the Government of India in its wisdom had made it mandatory for the CBI to take the prior approval of the government to conduct a preliminary inquiry into allegations of corruption against officers in all civil services of the rank/grade of joint secretary and above. This was called Single Directive. A three-judge bench of the Supreme Court struck down this Single Directive as being arbitrary and violative of the guarantee of equal treatment and equal protection of the law under Article 14 of the Constitution. The apex court also gave several directions regarding ramping up the functioning of the CBI and the Enforcement Directorate (ED).
Not one to give up easily, the Government of India gave statutory status to the Central Vigilance Commission through the Central Vigilance Commission Act (CVC Act), and brought back the Single Directive in that law, even as amending the Delhi Special Police Establishment Act (DSPE Act). With this, the protective shield for senior officials was given legal sanction – with the stamp of parliamentary approval to the Single Directive. The government argued that such protection was essential for senior-level officers to function in an independent manner without fear of prosecution for every decision they made.
This was like immunizing the senior bureaucracy from any inquiry into allegations of corruption against it. Ultimately, senior babus themselves would decide whether one of their own would be inquired against for corruption or not. Such was the effect of the restoration of the Single Directive. Dr. Subramaniam Swamy and the CPIL challenged this amendment to the DSPE Act and the CVC Act on grounds of their being arbitrary and violative of Article 14 of the Constitution, which guarantees equal treatment of the law for all persons. The Supreme Court referred this matter to a Constitution Bench for considering the following issue:
Whether a law or any portion of a law enacted by Parliament can be struck down by the Supreme Court for being arbitrary or unreasonable or manifestly arbitrary or manifestly unreasonable just like executive resolutions and directions issued by the Government that are arbitrary or unreasonable when tested against the right to equal protection or treatment guaranteed under Article 14 of the Constitution. In short, the issue was whether the impugned provisions violated the rule of law by treating some individuals as belonging to a privileged class.

Supreme Court Ruling

The Constitution Bench held that the Single Directive contained in the CVC Act and the DSPE Act violated the guarantee of Article 14 of the Constitution. So it struck down these provisions. Earlier, in several judgments, the Supreme Court had ruled that a law enacted by Parliament could be struck down only on two grounds, namely:
(a) lack of legislative competence; and
(b) violation of one or more of the fundamental rights guaranteed by the Constitution or any of its other provisions.
In the current case the Supreme Court held that breach of rule of law amounts to breach of the right to equality under Article 14 of the Constitution, and therefore is a valid ground for striking down a law as being unconstitutional. The notion and praxis of the rule of law is embedded in Article 14, which is an emanation of the concept of Republicanism. As a result, from now on all officers of whatever grade or rank in the Government of India will be treated equally for the purpose of inquiry into allegations of corruption against them. No special treatment will be given to any officer simply because of his/her rank or grade.

Rationale of the Ruling

The Supreme Court said that officers of the decision-making level in government (i.e., joint secretary and above, executive directors of banks and chairmen and managing directors of public sector undertakings) cannot be treated a special class of persons requiring special protection. The differentia underlying such classification was not sound and did not meet the test of the doctrine of reasonable classification. It refused to accept the argument that corrupt servants could be differentiated on the basis of their status in the bureaucratic hierarchy.
All corrupt public servants are “birds of the same feather”, the Supreme Court observed. The classification of bureaucrats into senior and junior or high and low does not eliminate public mischief, rather, it advances public mischief and protects the wrong-doer, it said. It also noted that the Single Directive applied only to the Government of India employees. It does not apply to officers of the All-India civil services – IAS, IPS, IFoS etc. if they are posted with the state governments. Also for cognizable crimes other than corruption, a public servant may be investigated by the police without requiring prior approval of any authority. So the Single Directive was clearly arbitrary and offensive to the concept and practice of the rule of law.
The Supreme Court said that the CBI must be insulated from political influence over its working and the Single Directive only reinforced such extraneous influence. If the CBI could not even verify the allegations contained in the complaint through a preliminary inquiry, how would it even move forward in such cases? It would not even be able to collect material to move the government to give approval for prosecuting corrupt senior officers. The CBI’s power to inquire and investigate a class of persons against complaints of corruption was subverted by the Single Directive.

The Supreme Court observed: “Office of public power cannot be the workshop of personal gain. The probity in public life is of great importance. How can two public servants against whom there are allegations of corruption or graft or bribe taking or criminal misconduct under the PC Act, 1988 can be made to be treated differently because one happens to be a junior officer and the other, a senior decision maker?” So the CBI may no longer want to play the role of the ‘caged parrot’ as the Apex Court itself once observed during a hearing last year.

“Exception” permitted by the Supreme Court

However the Supreme Court upheld the validity of the rule laid down in its earlier judgments with regard to inquiry/investigation of allegations of corruption against judges of the High Courts and the Supreme Court. Even registering an FIR against a serving judge of the constitutional courts would require the prior approval of the concerned Chief Justice. The Court held that such safeguards were necessary to protect the independence of the judiciary. Senior civil servants could not be equated with members of the higher judiciary.
Ahem! With the greatest respect to the wisdom of the Supreme Court, it did not go into the issue of public perception about corruption in courts, nor did it examine the issue of making an exception of judges in this manner. So a complaint of corruption against a serving judge of the High Court or the Apex Court cannot be inquired into by anybody except with the prior approval of the concerned Chief Justice.
This is why we need a Judicial Accountability law to establish a mechanism for inquiring/investigating complaints of corruption made against serving judges of High Courts and the Supreme Court. An independent and high-powered body of individuals of impeccable integrity must be created to look into such complaints or the higher judiciary is in serious danger of perpetuating the anomaly that it chose to strike down in the executive sphere.
Both the UPA government and the opposition parties missed the opportunity to enact such a law that was pending in the Rajya Sabha before elections. Unfortunately, with the dissolution of the Lok Sabha after the election results are announced, this Bill will lapse. An opportunity has been wasted despite public pressure mounted by several organizations, including the National Campaign for People’s Right to Information to enact a strong law to probe charges of corruption against members of the higher judiciary.

* Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative

Comments

TRENDING

देशव्यापी ग्रामीण भारत बंध में उतरे मध्य प्रदेश के आदिवासी, किया केंद्र सरकार का विरोध

- हरसिंग जमरे, भिखला सोलंकी, रतन अलावे*  15 और 16 फरवरी को निमाड के बड़वानी, खरगोन और बुरहानपुर में जागृत आदिवासी दलित संगठन के नेतृत्व में आदिवासी महिला-पुरुषों ग्रामीण भारत बंद में रैली एवं विरोध प्रदर्शन किया । प्रधान मंत्री द्वारा 2014 में फसलों की लागत का डेढ़ गुना भाव देने का वादा किया गया था, 2016 में किसानों की आय दुगना करने का वादा किया गया था । आज, फसलों का दाम नहीं बढ़ रहा है, लेकिन खेती में खर्च बढ़ता जा रहा है! खाद, बीज और दवाइयों का दाम, तीन-चार गुना बढ़ चुका है! किसानों को लागत का डेढ़ गुना भाव देने के बजाए, खेती को कंपनियों के हवाले करने के लिए 3 काले कृषि कानून लाए गए । 3 काले कानून वापस लेते समय प्रधान मंत्री ने फिर वादा किया था कि फसलों की लागत का डेढ़ गुना भाव की कानूनी गारंटी के लिए कानून बनाएँगे, लेकिन वो भी झूठ निकला! आज जब देश के किसान दिल्ली में आपको अपना वादा याद दिलाने आए है, तब आप उनका रास्ता रोक रहें है, उनके साथ मारपीट कर उन पर आँसू गैस फेंक रहें हैं, उन पर छर्रों से फायरिंग कर रहें है! देश को खिलाने वाला किसान खुद भूखा रहे, क्या यही विकास है?

Only 15% businesses provide employees real-time sustainability dashboards: Study

Kyndryl in collaboration with Microsoft has released the findings of The Global Sustainability Barometer study. The study, conducted by Ecosystm, finds that while 85% of organizations place a high strategic level of importance on achieving their sustainability goals, only 16% have integrated sustainability into their strategies and data. A Kyndryl note: *** Kyndryl (NYSE: KD), the world’s largest IT infrastructure services provider, in collaboration with Microsoft , today released the findings of The Global Sustainability Barometer study. The study, conducted by Ecosystm , finds that while 85% of organizations place a high strategic level of importance on achieving their sustainability goals, only 16% have integrated sustainability into their strategies and data.

Tamil Nadu brahmins are at cross roads, their future scenario remains uncertain

By NS Venkataraman*  For over 70 years now, brahmin community in Tamil Nadu have been abused, insulted and even physically attacked on some occasions by those who claimed that they were part of the so called dravidian movement. However, brahmin community silently and helplessly ducked under pressure and showed no signs of resistance or fight back.

How the slogan Jai Bhim gained momentum as movement of popularity and revolution

By Dr Kapilendra Das*  India is an incomprehensible plural country loaded with diversities of religions, castes, cultures, languages, dialects, tribes, societies, costumes, etc. The Indians have good manners/etiquette (decent social conduct, gesture, courtesy, politeness) that build healthy relationships and take them ahead to life. In many parts of India, in many situations, and on formal occasions, it is common for people of India to express and exchange respect, greetings, and salutation for which we people usually use words and phrases like- Namaskar, Namaste, Pranam, Ram Ram, Jai Ram ji, Jai Sriram, Good morning, shubha sakal, Radhe Radhe, Jai Bajarangabali, Jai Gopal, Jai Jai, Supravat, Good night, Shuvaratri, Jai Bhole, Salaam walekam, Walekam salaam, Radhaswami, Namo Buddhaya, Jai Bhim, Hello, and so on.

Violent incidents in Haldwani: CPDRS on dubious role of Uttarakhand government

By DN Rath  Center for Democratic Rights and Secularism (CPDRS) unequivocally condemns the dubious role of Uttarakhand Government and its administration in the incidents that happened in Haldwani of Nanital district of the state.

नफरती बातें: मुसलमानों में असुरक्षा का भाव बढ़ रहा है, वे अपने मोहल्लों में सिमट रहे हैं

- राम पुनियानी*  भारत पर पिछले 10 सालों से हिन्दू राष्ट्रवादी भारतीय जनता पार्टी (भाजपा) राज कर रही है. भाजपा आरएसएस परिवार की सदस्य है और आरएसएस का लक्ष्य है हिन्दू राष्ट्र का निर्माण. आरएसएस से जुड़ी सैंकड़ों संस्थाएँ हैं. उसके लाखों, बल्कि शायद, करोड़ों स्वयंसेवक हैं. इसके अलावा कई हजार वरिष्ठ कार्यकर्ता हैं जिन्हें प्रचारक कहा जाता है. भाजपा के सत्ता में आने के बाद से आरएसएस दुगनी गति से हिन्दू राष्ट्र के निर्माण के अपने एजेण्डे को पूरा करने में जुट गया है. यदि भाजपा को चुनावों में लगातार सफलता हासिल हो रही है तो उसका कारण है देश में साम्प्रदायिकता और साम्प्रदायिक मुद्दों का बढ़ता बोलबाला. इनमें से कुछ हैं राम मंदिर, गौमांस और गोवध एवं लव जिहाद. 

Birth of New Communist Party ushers in new epoch in Canada's Left history

By Harsh Thakor  On January 31, 2024, history was made with the formation of the (New) Communist Party of Canada (the (N)CPC), the successful completion of its Founding Congress, and the public release of its Political Program. A most sporadic development in turning course of Communist movement locally, and worldwide. It also pits a challenge to dogmatism or mechanical approach and stagnation. taps the revolutionary creativity of the masses and is major re-orientation towards shaping revolutionary class struggles and  the massline.

Ethiopian ruling classes, political masters in West have their hands soaked in blood

By Harsh Thakor  Over two hundred were killed in recent weeks in Ethiopia’s Oromia and Amhara region. After peace-talks between the Oromo Liberation Army and the Ethiopian government did not materialise tensions are escalating in the Oromia region. Earlier, on November 22, least 25 civilians were massacred in a government aerial drone strike, in Chawaka districts of the Buno Bedelle zone. This incident took place only two days after a fierce battle arose between the OLA and governmental troops in the Sulula Fincha district of the Horro Guduru Wollega zone.

Landlords' armed bandits launched merciless attack in Brazil but face resistance

By Harsh Thakor  Armed bandits called the “zero invasion movement” comprising of landowners, gunmen and police marched into   Bahia with support from the PM [Military Police]. On January 21st, indigenous Maria de Fátima Muniz, known as Nega Pataxó, shaman of the Pataxó Hã-Hã-Hãe people, was shot dead in the Caramuru Catarina Paraguassu Indigenous Land and chief Nailton Muniz was seriously injured by gunshots, as were others indigenous people during an attack by the notorious  paramilitary group.

Landslide early warning system: Odisha Govt, Amrita Vishwa Vidyapeetham collaborate

By Divya Saini  In a strategic move to mitigate the impact of landslides during storms, the Odisha government in collaboration with Amrita Vishwa Vidyapeetham is gearing up to establish a user-friendly Landslide Early Warning System (EWS) in Gajapati district. This initiative aims to provide advanced information, especially regarding landslides caused by disturbances in the natural stability of a slope.