The Supreme Court's order giving more autonomy to agencies investigating corruption in high places has been widely welcomed, but there is some discussion about how effective the order will be.
ON December 18, Chief Justice of India J.S. Verma, Justice S.P. Bharucha and Justice S.C. Sen delivered a key judgment in what has arguably been the most important legal intervention into the corruption of the political system, the Jain hawala case. A hush descended in the courtroom as Justice Verma read out key sections of the Supreme Court's unanimous order. Fittingly, the order addressed the key issue of autonomy for the Central Bureau of Investigation (CBI) and the Enforcement Directorate (E.D.), the agencies that are charged with dealing with the recent spate of cases involving corruption in high places, and the nexus between politicians, bureaucrats and criminals. While the Court's directions on granting autonomy to these institutions has been widely welcomed, there is also some scepticism about just how effective the order will in fact be in insulating investigations from political pressure.
Broadly, the Supreme Court's directives fall into three categories and are largely based on the report of the Independent Review Committee set up by the Union Government to look into the future of anti-corruption investigations. First, and by far most important, the CBI will now operate under the superintendence of the Central Vigilance Commission (CVC). The Court has asked Parliament to accord statutory status to the CVC, which has hitherto been a peripheral body. Secondly, the order has mandated the creation of a prosecution agency similar to that of the United Kingdom's Director of Prosecutions, which will, among other things, fix responsibility on individual officers in cases where poor investigation leads to acquittals. Finally, the order abolishes the 'Single Directive' of 1969, a Union Government directive that prevents the CBI from investigating officers above the rank of Joint Secretary without the prior permission of their respective Ministries. All these orders are interim in character, "to operate till such time as they are replaced by suitable legislation."
If all these judicial directions are in principle welcome, at least some ambiguity remains in their substance. A case in point is the effort to remove the CBI's superintendence from the Prime Minister's Office (PMO), and hand it over to the CVC. The judgment said, "While the Government shall remain answerable for the CBI's functioning, to introduce visible objectivity in the mechanism for overviewing the CBI's functioning, the CVC shall be entrusted with the responsibility of superintendence over the CBI's functioning. The CBI shall report to the CVC about cases taken up by it for investigation; progress of investigations; cases in which charge-sheets are filed, and their progress. The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with the competent authorities, specially those in which sanction has been delayed or refused."
The order appears to rewrite radically Section 4(1) of the CBI's parent Act, the Delhi Special Police Establishment Act of 1946, which vests the power of superintendence of the agency with the Central government.
However, this direction of the Court is not as unproblematic as it would appear. For one, if the Government "shall remain answerable for the CBI's functioning," it would logically follow that it must have at least some powers to regulate that functioning. The Court direction on the CBI that immediately follows its orders on superintendence by the CVC deals with this issue. It mandates that the "Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency." This apparently innocuous power, however, has been routinely deployed by the Government in defence of its constant interference in CBI investigations.
Reconciling the conflicting mandates given by the Supreme Court and the CVC will not be easy, particularly since the order deals with the idea of "superintendence" only in passing, principally to exclude the process of investigation, a statutory exercise of power, from its ambit. Also, the Government contends that the CBI cannot be made accountable to the CVC without amending the Delhi Special Police Establishment Act.
These directions rely on a truly independent CVC. Though the Court has directed that it be given statutory status, the instruction must be seen as being in the nature of advice, since Parliament cannot be compelled by the judiciary either to pass or not pass a piece of legislation. The Court anticipated the charge of infringment on Parliament's domain and argued that the inability of the executive to act on granting autonomy to the CBI meant it had to step in. "In a catena of decisions of this Court," the Bench noted, "this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time (as) the legislature steps in to cover the gap or the executive discharges its role,"
How Parliament will now respond to the orders on the CVC remains to be seen. There are indications that a confrontation is brewing. Union Law Minister Ramakant Khalap is reported to have said that the Court order was not binding on the Government. Also, the Government was reportedly considering asking the Court to keep its orders in abeyance until a new government is installed.
The Court has itself not prescribed extensive safeguards for the CVC. The order does not prescribe a fixed tenure for the Central Vigilance Commissioner, who heads the CVC, or safeguards against coercion and removal from office. It suggests that the Central Vigilance Commissioner be selected by a "Committee comprising the Prime Minister, the Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others" - a prescription Parliament is free to reject. The Commissioner shall then head a secondary committee comprising the Home Secretary and the Secretary (Personnel) to draw up a list of candidates for appointment as the CBI Director. The Director shall finally be chosen by the Cabinet Committee on Appointments, and shall have a fixed two-year term.
It is apparent that this system is no guarantee of producing impartial CBI Directors. Of more immediate relevance, however, is that the Court's demand of immediate "strict compliance" with its directions may be unworkable. The current Government has already let it be known that its status as an interim government prohibits it from making such sweeping changes.
On the related issue of autonomy for the E.D., the Court's order differs from its strategy for the CBI. The Bench accepted a caveat filed by the Attorney-General asking that the Finance Minister continue to have review powers over the working of the E.D., the power to give broad policy directions on investigations, to appraise the quality of work of the head of the E.D. and to call for information regarding progress of cases. The Attorney-General's caveat was prepared on the basis of a note authored by a Union Minister. The caveat is of especial relevance in the context of Finance Minister P. Chidambaram's controversial decision to monitor personally pending investigations under the Foreign Exchange Regulation Act against Bennett, Coleman & Co. Ltd Chairman Ashok Jain (Frontline, August 8).
The Court's order provides for a mandatory two-year term for the Enforcement Director. The ruling could legitimise the shortening of the current tenure of the Director, which is five years. A safeguard against interference is the Court direction that "all powers of the Minister are subject to the condition that none of them would extend to permit the Minister to interfere with the course of investigation and prosecution."
ONE key safeguard that the Court has put in place against wilful sabotage of investigations is its extraordinary decision to put in place a panel of lawyers, answering to a body similar to that of the Director of Prosecutions in the United Kingdom. If such a body is created by the Government, each CBI prosecution will now be reviewed by a lawyer from the panel and responsibility for unsuccessful prosecutions will be fixed. The order has its origins in a demand by amicus curiae Anil Divan that the Court create a body similar to that of the United States' Special Independent Council to deal with politically sensitive cases. He had also asked that the Government have no power over transfers and appointments in the CBI.
How the Court's order will function in practice is again unclear. "Most criminal cases in India," notes one CBI official, "anyway end in acquittal, and often not because of sloppy investigation but because of legal lacunae, lack of witnesses, and on occasion sharp practice. The CBI already filters out a high percentage of cases to keep a high success rate. The Court order will simply work as a disincentive against pursuing difficult cases with a low chance of conviction."
THE final important aspect of the Court order is its decision to abolish the 'Single Directive' of 1969. The Single Directive, modified somewhat over the years, mandated that the CBI obtain the permission of the Ministries concerned before investigating officers of the rank of Joint Secretary and above. It also applies to officials of public sector undertakings and banks. The intended objective of the Single Directive, framed by bureaucrats for bureaucrats, was to protect high officials from harassment for bona fide decisions that often involved subtle exercises of judgment. As the Court points out in its order, the protection would in any case apply only to cases not involving holding assets disproportionate to income, since such corruption could in no way be deemed to be a part of an official's duties. It would apply only to cases where the accusation of wrong-doing cannot be supported by direct evidence, and involves an inference of a corrupt motive.
The quashing of the Single Directive is welcome in that it underlines the importance of equality before the law and the independence of the investigative process. Though some bureaucrats claim that it will interfere with the honest discharge of their duties, this argument ignores the fact that all public servants cannot be actually prosecuted without sanction from the government. This protection against prosecution is statutory, designed to defend bureaucrats from vexatious litigation. Notably, categories of public servants other than senior bureaucrats, including junior officials in both the bureaucracy and the police services, routinely make serious decisions without the fear of harassment. It is worth pointing out, however, that the Single Directive has not been an issue in any major recent anti-corruption investigation, and that the CBI has at no stage been denied permission to investigate bureaucrats.
SOME of the Court's peripheral orders are also of significance. Though it did not examine the controversial appointment of R.C. Sharma as CBI Director, the Court made it clear that his term in office was not to be extended beyond January 31. How precisely his successor will be appointed is, however, not clear, since it may be contingent on legislation on the CVC being passed by the incoming Parliament.
The Court has also ordered the creation of a nodal agency led by the Home Secretary, which will include the Member (Investigation) of the Central Board of Direct Taxes, the Director-General of Revenue Intelligence, the Enforcement Director and the CBI Director. This agency shall bring about coordinated action against the nexus between criminals, politicians and bureaucrats. The Court has also asked the Union Government to ensure that State governments set up mechanisms to improve their police apparatus.
Much of what the Supreme Court has ordered is welcome. Where the final order in the Jain hawala case perhaps falls short is in its belief that executive management can bring about an impartial investigation of corruption. An interesting detail in the judgment is that among the reasons the order cites to illustrate the reasons why probity is needed in public life is the curious observation that corruption "has an adverse effect on foreign investment and funding from the International Monetary Fund and the World Bank who have warned that future aid to underdeveloped countries may be subject to the requisite steps being taken to eradicate corruption, which prevents international aid from reaching those for whom it is meant."
Many may question this understanding of the politics of international aid as well as its implications for the manner in which political corruption must be addressed. The eradication of corruption in the political system can only take place through sustained mass political activity; and that is the reason why debate in Parliament, which the Court's order will hopefully impel, will be of crucial importance.