Implications of Supreme Court’s refusal to give immunity to babus: What about public perception of corruption among judges?

prashant bhushan
Prashant Bhushan

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, 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

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