New Delhi: India’s apex court has ruled that the Central Bureau of Investigation (CBI) does not need the government’s permission to investigate senior bureaucrats in a judgement that is an important milestone in the country’s fight against corruption—especially when seen in the background of the court’s effort to enhance the autonomy of the federal investigation agency and the anti-corruption law enacted by Parliament last year.
A five-judge bench of the Supreme Court, headed by Chief Justice R.M. Lodha, declared Section 6-A of the Delhi Special Police Establishment Act unconstitutional. Section 6-A said CBI needed government sanction for investigating officers at the level of joint secretary and above.
The Congress party-led United Progressive Alliance government has been besieged by corruption controversies, and graft has become a significant campaign topic in the Parliamentary elections that are underway. The court’s efforts to make CBI autonomous are related to one of these controversies—irregularities in the allotment of coal mines.
Bharatiya Janata Party (BJP) leader Subramanian Swamy, the main petitioner for this case, termed the court order a “landmark judgement” for which he has “worked hard for 20 years”. He also acknowledged the contribution of the amicus curiae (friend of the court) appointed by the court, Anil Divan.
Swamy’s case was filed in relation to the happenings in Indian Bank, which almost collapsed under the weight of bad loans in the 1990s. The controversial section 6-A also deals with senior officers appointed in government-run corporations including banks.
Like almost any other judgement dealing with cases of corruption in high places, Tuesday’s order is related to the Supreme Court’s December 1997ruling in the Vineet Narain vs Union of India case related to the Jain hawala scandal, involving payoffs to politicians by four Jain brothers who facilitated illegal foreign exchange transactions (termed hawala). That ruling, like Tuesday’s, sought to reduce the interference of the government in investigations of politicians and bureaucrats by CBI.
Subsequently, in 2003, the then National Democratic Alliance government, headed by the BJP, amended the Delhi Special Police Establishment Act to insert Section 6-A.
“It is very sad that this section was reintroduced even after the court’s decision in the hawala matter. This shows the extent to which both BJP and Congress governments were willing to go to prevent the prosecution of corrupt officials and offer them protection,” said lawyer Prashant Bhushan, who is also a leader of the Aam Aadmi Party which is fighting the 2014 general elections on an anti-corruption plank.
The Centre for Public Interest Litigation, a non-profit organization with which Bhushan is closely associated, had challenged the introduction of Section 6-A in 2003. In 2005, this matter was clubbed with the petition filed by Swamy to be heard by a Constitution bench.
Meenakshi Lekhi, a spokesperson for BJP, welcomed the top court order.
“Any criminality involved should not have a discrimination based on the rank of a person,” Lekhi said.
A Congress party spokesperson didn’t immediately respond to phone calls seeking comment on the court order.
Tuesday’s judgement runs into 71 pages and contains an in-depth analysis of why Section 6-A does not fit in with the constitutional mandate of Article 14 that promises “equality before law”. Indeed, amicus curiae Divan had argued that Section 6-A creates a special privileged class. The judgement noted delays in according government permission in 126 instances where CBI sought this.
The court also agreed with the petitioners who have always maintained that Section 6-A is against the tenets of the Prevention of Corruption Act.
“It is difficult to justify the classification which has been made in Section 6-A because the goal of law in the Prevention of Corruption Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences.”
The Supreme Court maintained its view from the Vineet Narain vs Union of India case that “However high you may be, the law is above you”.
Anuja contributed to this story.