The Supreme Court on Monday asked the Centre to respond on a plea that the appointment process of the CBI Director and the heads of the Central Vigilance Commission (CVC), Central Information Commission (CIC) and the Lokpal – the four regulators of governmental excess – was flawed from the very start.
A Bench led by Chief Justice of India Ranjan Gogoi issued notice to the government on a petition filed by NGO Youth for Equality, represented by advocates Gopal Sankaranarayanan and Pooja Dhar, that the CBI, CVC, CIC and the Lokpal had “all been limited in their functioning and interfered with by virtue of overwhelming governmental control.”
The CVC is the country’s top anti-corruption ombudsman. The CIC is the apex forum under the Right to Information Act. The Lokpal is yet to be implemented though the statute came into existence in 2014.
The petition pointed to two facts to back its claim that the heads of these institutions were not “truly independent and transparent.” Firstly, the committees meant to appoint the heads of these institutions function by “pure majority”, thereby rendering the “balancing” voice a minority. “Also, where the Leader of the Opposition was a member of the appointing committee, the government took cover under the fact that where such individual was not explicitly recognised, he or she would merely be called upon as an ‘invitee’, thereby subverting the statutory intent,” it said. The petition sought the court to interpret the statutory provisions so that appointments were made by a unanimous vote and not a majority one.
Secondly, wherever the appointing committee included the Leader of the Opposition, the same may be read to mean the leader of the single largest opposition party in that House.
The petition further challenged Section 17A of the Prevention of Corruption Act, 1988. Mr. Sankaranarayanan said the provision provided a blanket protection to public servants regardless of their status. It argued that Section 17A “affords a second threshold to be crossed while investigating a public servant, apart from the requirement of sanction, which is in any case available under Section 19 of the 1988 Act... This provision is wholly illegal and void.”
It said the section was inserted without removing the basis of the Supreme Court’s Constitution Bench judgment in Subramanian Swamy versus CBI, reported in 2014, which had noted that “corruption is an enemy of the nation and public servants who are warned of the legislative measure ought to be confronted with the same process of investigation and enquiry.”
