Political interference in corruption cases continues through 'single directive'- which has been resurrected through amendment in Prevention of Corruption Act even after being struck down twice earlier by Supreme Court.
- Prasanna Mohanty
- New Delhi
- June 4, 2019
- UPDATED: June 14, 2019 09:27 IST
Corruption may have gone out of political narrative but India's struggle for a credible and independent anti-corruption mechanism endures. The last anti-corruption movement, under the leadership of Anna Hazare, did yield the Lokpal - envisioned as the apex anti-corruption watchdog -more than five years after the Lokpal and Lokayuktas Act of 2013 was notified. However, it is still in the process of being operationalised.
In the meanwhile, the reputation of the premier anti-corruption investigating agency, Central Bureau of Investigation (CBI) - patchy at the best of times - has taken further beating because of intense infighting that surfaced following the mid-night strike at the then CBI Director in October 2018 and the legal battles that continues.
Fighting corruption may not be high on the agenda now but it would be unwise to wait until next corruption scandal hits the headlines to bring about a robust anti-corruption architecture free from interference of the political executive. India continues to fare badly in the Transparency International's corruption perception index with a score stuck around 40 on a scale of 0 (highly corrupt) to 100 (very clean) for many years.
This article is the sixth in a series that looks at the agenda for the Narendra Modi government's second term. Read the first, second, third, fourth and fifth part.
Single directive: From executive instructions to statutory form
The 'single directive' has been one of the banes in the fight against corruption, perpetuating undesirable interference in investigating public servants. In spite of it being struck down twice by the Supreme Court since 1997, it has resurfaced in a new form and now protects all public servants - high-ranking or low.
In the traditional sense, the single directive was a set of (executive) instructions issued by the Central government to the CBI mandating prior sanction for investigating public servants at the "decision making level" - joint secretary and above. It first appeared in 1969 but became highly contentious when a fresh set was issued in 1988 following the Bofors scandal - mandating "prior consultation" and "government concurrence" for the CBI to initiate probe into corruption cases.
It took nearly a decade for the Supreme Court to strike it down as unconstitutional in its famous Hawala judgement (or the Jain Diaries case which involved alleged hawala payments to politicians cutting across party lines) of 1997. The court observed, among other things, that the single directive might "thwart investigation of a cognizable offence and not promote the cause of justice" and that differentiating "decision making officers" from the rest was untenable given the equality enshrined in Article 14 ("equality before the law or the equal protection of the laws").
A few years later, the single directive reappeared in the statutory form when the Central Vigilance Commission (CVC) Act of 2003 was legislated. The CVC Act amended the Delhi Special Police Establishment Act of 1946 - to which the CBI owes its legal status and power to investigate - saying that "the Delhi Special Police Establishment (meaning the CBI) shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act of 1988 (PCA) except with the previous approval of the Central Government".
This amendment was possible because the Hawala judgement had asked for a statutory status for the CVC, entrusting it with "the responsibility of superintendence over the CBI's functioning" so as to insulate the latter from political interference. Until then, the CBI was under government control.
With this, the single directive assumed a statutory form.
It was immediately challenged (2004) but the apex court took a decade to strike it down. In 2014, the apex court used the very same arguments that the Hawala judgement had. Among other things, this judgement observed that the single directive "neither eliminates public mischief nor achieves some positive public good. On the other hand, it advances public mischief and protects the crime-doer. The provision thwarts an independent, unhampered, unbiased, efficient and fearless inquiry/investigation to track down the corrupt public servants".
Single directive resurfaces in Prevention of Corruption Act
Four years later, in 2018, the single directive was resurrected through an amendment in the PCA. A new section (17A) was inserted in the law saying that no inquiry or investigation can be conducted "without the previous approval in the case of a person who is or was employed, at the time when the offence was alleged to have been committed".
This amendment made a fundamental change in the concept of the singe directive. Instead of protecting just the high-ranking officials (joint secretary and above), it extended the protection to officials of all ranks.
It is worthwhile here to recall the 2014 apex court judgement's comments on the direct implication of "previous approval" :
"The previous approval...would result in indirectly putting to notice the officers to be investigated before commencement of investigation. Moreover, if the CBI is not even allowed to verify complaints by preliminary enquiry, how can the case move forward? A preliminary enquiry is intended to ascertain whether a prima facie case for investigation is made out or not.
"If CBI is prevented from holding a preliminary enquiry, at the very threshold, a fetter is put to enable the CBI to gather relevant material. As a matter of fact, the CBI is not able to collect the material even to move the Government for the purpose of obtaining previous approval from the Central Government."
A fresh petition has been filed (in 2018) challenging this amendment too.
It is also important to keep in mind that while the CBI may take up other cases, its investigations into corruption cases under the PCA - which was framed specifically to deal with corruption - are directly impacted by the single directive.
More importantly, the Lokpal's entire operation is limited to the corruption cases punishable under the very same law - the PCA - and hence, is directly impacted by the single directive.
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