Reviving the directive

THERE WAS SOME fierce criticism of the Central Vigilance Commission Bill before it was passed in the Rajya Sabha, thus paving the way for its enactment. Unfortunately, there was not enough. More than one provision in the Bill — which gives the office of the Chief Election Commissioner a statutory status and broad superintendence over the Central Bureau of Investigation — may deserve to be critically examined. The introduction of one clause deserves to be roundly condemned. What Section 6A does is to restore the so-called `Single Directive', an iniquitous rule or guideline that was explicitly and unambiguously quashed by the Supreme Court. Under the Single Directive, it was mandatory for the CBI to secure the prior approval of the Central Government before launching an investigation into a case under the Prevention of Corruption Act if the allegations related to an official of the rank of Joint Secretary or higher. The Supreme Court in the Vineet Narain/Jain hawala judgment of 1997 struck down the Directive, which was issued as an executive order in the mid-1980s. Ironically, this is the very judgment — it was shaped by the desire to protect the CBI from excessive governmental interference — that had laid down the broad framework for the present CVC Bill. "Every person accused of committing the same offence is to be dealt with in the same manner...," the Court had observed when striking down the Directive.

Against this background, the very presence of section 6A in the CVC Bill is mischievous. It is particularly shocking when one considers that an earlier bid to smuggle the Directive into the CVC ordinance had met with grave judicial disapproval. This eventually resulted in the ordinance being amended, with the offending provision thrown out. It is mystifying why, having been bitten once, the Government is not shy of daring the Supreme Court again. What the resurfacing of the Directive suggests is that, when it comes to issues where it has a vested interest, the higher bureaucracy can exercise an extraordinary influence over its political masters. Defending the inclusion of the Single Directive in the CVC Bill, the Union Minister for Law, Arun Jaitley, argued that it was put in place to enable bureaucrats to exercise their discretion without fear of being harassed by malicious investigations. This is exactly the argument that bureaucrats employ to defend the Directive, which they portray as a necessary protection against an investigating agency that is more than capable of misusing its powers.

The much bigger issue of course is that the Directive can be, and has been, used to stymie the investigation of corruption cases. Since some of these cases involve a conspiratorial nexus between bureaucrats and politicians, many politicians clearly have a vested interest in keeping the Directive alive. The cynical manner in which such self-serving legal protection is perceived was evident during the debate on the CVC Bill. One of the issues discussed was this: when such protection existed for bureaucrats, why was there no such cover for MPs? The Supreme Court struck down the Directive on the grounds that it was discriminatory and that there was no reasonable basis for distinguishing between "decision-making officers" and other bureaucrats for the purpose of investigating an offence for which they were accused. After the Bill is formally enacted, it is virtually certain that the Directive will be challenged in Court. It never pays to speculate about the workings of the judicial mind, but there will no surprise if the Directive is struck down, if the Government is taken sternly to task, and if the Court has the last laugh.