The Supreme Court recently held that Section 6A of the Delhi Special Police Establishment (DSPE) Act is invalid, allowing the Central Bureau of Investigation (CBI) to initiate investigations against senior bureaucrats without the government’s permission. Yogendra Narain, former general-secretary of the Rajya Sabha and ex-chief secretary of Uttar Pradesh, speaks to Manavi Kapur about the perils of this decision
Why do bureaucrats need protection under this Act?
When the Janata Party came to power in 1977, two secretaries to the government of India were arrested by CBI from their offices. When the cabinet secretary was approached, it was discovered that only CBI had any knowledge about these arrests. It was then felt that senior officers needed some measure of protection. This led to a single-point directive, which was not upheld by the Supreme Court as it was an executive direction and not a part of the law. This decision was then reversed after Indira Gandhi came to power by making a provision in the law relating to the DSPE Act and a legal provision was inserted to ensure that permission of the government was taken to initiate the investigation.
Later, the Central Vigilance Commission (CVC) Act was enacted to necessitate government permission to initiate inquiries against officers of the level of joint secretaries and above. The reason for this is that investigative agencies like CBI do not understand certain nuances of policy-making processes across government agencies. For example, when investigations in the 2G spectrum had begun, CBI investigators asked what ‘spectrum’ meant. This is because they are a body under the police force, not a multi-disciplinary agency that has experts to address specific cases.
The section, as has been often argued, allowed a cocoon to corrupt officers. CBI too has often raised issues regarding its autonomy, citing political interference as reasons for delay in investigations. How would you recommend that these issues be handled?
The ideal body for deciding whether an investigation be initiated against a senior officer or not would be the CVC. CBI is not qualified to examine policy decisions that are made to benefit the country. When the question of investigating judges at courts was raised, the courts responded with a vehement ‘no’ and suggested that prior permission of the chief justice of India should be taken. If the Supreme Court feels that there may be bias if a police agency is allowed to conduct such investigations, then why not extend the same treatment for bureaucrats too? The investigation can be conducted by a police agency, but it should first seek some approval from a separate authority. The problem is not with investigating an officer, but rather with the question of initiating an investigation and deciding whether a case merited an investigation or not. If the police agencies are given a free hand in filing FIRs and complaints, it is only going to stall the policy-making process and lead to a paralysis in the functioning of various executive government agencies. Take for example, A K Antony. He has not only done a great disservice to the defence ministry, but also to the armed forces. In trying to keep his image clean, he has stalled decisions and this has resulted in the armed forces not getting enough and timely supply of weapons.
What are the measures currently in place to prevent and address instances of graft and corruption?
Currently, one can opt for public interest litigation, Right to Information Act or the Prevention of Corruption Act (PoC) for taking action against corrupt practices. PoC allows for a complaint to be made by CBI to the courts. The problem in this model has been that the government has taken a lot of time to approve the initiation of inquiries on such complaints. The process needs an overhaul. The government needs to set time-limits on such complaints. The reasons for its decision need to be put in writing and made public. This will create greater faith in the process. The idea is to have control over initiating an investigation, not intervening in one. I also feel that the Lokpal Bill will go a long way in finding a just and speedy solution to this problem.
Has Section 6A been successful in shielding bureaucrats from frivolous and false complaints?
Absolutely. When a public servant makes a policy decision, there are several people who may draw personal benefit from it. When, for example, a tender is announced for supplying arms to the government, the stakes for bidders are quite high. Those who lose out will be inclined towards filing malicious complaints against the officer who presided over the tender. Even police agencies like the CBI may see that a certain party has benefited from a particular policy decision and interpret it as an instance of corruption. This present decision of the Supreme Court, especially without a directive of taking permission from an independent agency, would be deleterious to the functioning of the civil services. The CVC should be given this authority.