Look out chaps, the CBI is coming

BY Darius Nakhoonwala| IN Opinion | 08/05/2014

You don’t say!
Darius Nakhoonwala

Nowhere is the colonial legacy more visible than in the senior Indian bureaucracy which has surrounded itself with so many protections that until this week it was virtually immune from the consequences of all wrong-doing. The device it had used was an old British one, namely, that in order for one of its members to be investigated for corruption, the agency would need the government’s permission. The British had restricted this provision to the higher bureaucracy and the Indian successors had seen no reason to change this. Why would they?

But now the Supreme Court has told the senior babudom where it gets off. A five-judge constitution bench has said no prior sanction of the government is needed. The Supreme Court had said the same thing earlier also but the babus had cleverly inserted a new provision in 2003 to neutralise the ruling. Now the court has said that seniority cannot be a reason for protecting them.

Leader writers who had till now been griping about the protection suddenly turned cautious. They warned, though not entirely without reason, against the CBI’s proclivities.

As always, the Indian Express was first off the mark. “It will be easier now to extract answers in open and shut cases of bribery. But there are some dangers, too, given that CBI functioning itself is far from perfect…The CBI’s recent decision to quiz officials and industrialists on the coal allocation process has been widely questioned, given the absence of reasonable justification…overzealous investigators can cramp decision-making…, the consequences of this order now depend on the sobriety of the CBI’s investigative approach, its understanding of governmental discretion, and the consequences of rashly putting public servants in the dock.”

The Hindu said, “The Court has seen through the distinction made between officers based on their rank alone. Apart from there being no reasonable basis to treat corrupt public servants of a certain rank differently from those below them, the Court has given cogent and practical reasons too: that Section 6-A is destructive of the objective of the Prevention of Corruption Act as it blocks the truth from surfacing, protects those who commit crimes…the real mischief the Court has noted, is that the very group of officers who may be the target of the inquiry get to decide whether the probe should be allowed or not.”

The Telegraph woke up in time this time. It pointed out how the 2003 reversion of the Court’s ruling in the Vineet Narain case had the effect of violating Article 14 of the Constitution by discriminating against junior officers. “The court has gone straight to one of the chief sources of corruption in the system by undermining the cosy relationship between some politicians and bureaucrats. Neither would find it easy to act corruptly without the help of the other.” Indeed so. But the paper also pointed out that “Hesitation, the refusal to take unusual decisions, a sapping of dynamism would be some of the results of this.. to counter the false or malicious construction of cases, there should be a heavy penalty upon the exposure of such.”

The Business Standard edit was its tedious self. It just went on and on. “…the basic reasoning behind the striking down of the section is that it violates the constitutional principle of equal protection before the law…there are several implications of this judgment (which) will not be an unmixed blessing… A new government will struggle against even greater inertia than before.”

It then made the perfectly valid point – in more words than were necessary -- that while “the powers of the CBI are growing… there seems to be little equivalent expansion in its accountability, transparency, or in public trust. The CBI must be freed from political interference.”  

The Economic Times took a contrary view. “The mere fact that such frivolous investigations were not launched in the brief period when senior civil servants had been stripped of their immunity is not sufficient ground to conclude that such protection is superfluous.”  

The Financial Express made an interesting point. It said “If you look at the number of cases where the government has withheld permission for a probe, they aren’t really that many... In the case of the obviously corrupt, there is little doubt the Court has struck a blow for justice. But there are several cases, some of which the CBI is probing at the moment where you are dealing in not just grey, but shades of grey…’’

The Times of India didn’t write an edit. Instead an IAS officer wrote an article asking for safeguards.