Indian Peculiarism: States Veto Centre’s Fight Against Corruption
If the functioning anti-corruption law enforcement mechanism within the government of India is subjected to the sweet will of the states, it would make a mockery of India signing the United Nation Convention against Corruption.
It is, therefore, imperative that Parliament enacts a new law or amend the DSPE Act, suitably to give effect to the convention.
The Central Bureau of Investigation (CBI) traces its origin to the Special Police Establishment (SPE), which was set up in 1941 by the government of India. The functions of the SPE then were to investigate cases of bribery and corruption involving transactions with the War and Supply Department of the central government during the Second World War.
Superintendence of the SPE was vested with the War Department. Even after the end of the War, the need for a central government agency to investigate cases of bribery and corruption by central government employees was realised. The Delhi Special Police Establishment (DSPE) Act was therefore enacted in 1946.
This act transferred the superintendence of the SPE to the Home Department and its functions were expanded to cover all departments of the government of India. The act provided for the original jurisdiction to the SPE over all the Union Territories, and it could be extended to the states with the consent of the state government concerned.
The DSPE acquired its popular current name, Central Bureau of Investigation (CBI), through a Home Ministry Resolution of 1 April 1963. Initially, the offences that were notified by the central government related only to corruption by central government servants. In due course, with the setting up of a large number of public sector undertakings, the employees of these undertakings were also brought under the CBI purview.
Similarly, with the nationalisation of the banks in 1969, the public sector banks and their employees also came within the ambit of the CBI.
The Home Ministry also issued an office memorandum in 1969 popularly known as Single Directive. It interalia mentions about an administrative arrangement arrived at between the central and state governments whereby the CBI would focus on action against corrupt central public servants, whereas the state police focus against their corrupt state public servants, by extending mutual cooperation wherever required.
Consequently, the states accord general or specific consent under Section 6 of the DSPE Act, 1946 for the CBI to investigate cases of corruption against the central public servants working in their respective territories.
In other words, the states can veto whether the CBI can function in their territories against public servants of central government. As a result, this arrangement has been working with a lot of hiccups.
Pertinently, the Guwahati High Court in its order dated 6 November 2013 in WP (Criminal) No. 6877/2005 has struck down the MHA Resolution of 1 April 1963 constituting the CBI and its investigative powers. The same has been stayed by the Supreme Court upon being challenged.
It is thus a truism that the CBI functions on a very shaky and borrowed legal foundation which is the root cause of many of its problems as also the anti-corruption deficiencies in the government of India.
Two days ago, the Maharashtra government withdrew its consent accorded under Section 6 of the DSPE Act, 1946. Earlier, Rajasthan, Chhattisgarh, West Bengal, Mizoram and Tripura have withdrawn their consent accorded under Section 6 of the DSPE Act, 1946.
As a result, the CBI cannot investigate cases of corruption against central public servants working within the territories of these states, and thereby those central public servants get an informal legal immunity from being investigated and prosecuted for offences under the Prevention of Corruption Act, 1988 etc.
Under Section 8 of the Central Vigilance Commission (CVC) Act, 2003 and under Section 20 of the Lokpal and Lokayuktas Act, 2013, the CVC and the Lokpal respectively have power of direct inquiry or investigation by the DSPE (that is CBI) into allegations of corruption against central public servants.
Section 8 of the CVC Act, 2003 and Section 20 of the Lokpal and Lokayuktas Act, 2013 being later enactments should take precedence over the older enactment of Section 6 of the DSPE Act, 1946. The question is, can the CBI based on an order of the CVC or the Lokpal conduct an inquiry or investigation against a central public servant in the territories of states that have withdrawn consent under Section 6 of the DSPE Act, 1946?
In my view, it cannot. Assuming that the CBI does so, it will in all likelihood be challenged by the accused central public servants leading to protracted litigation. Either way, the very purpose of the CVC Act, 2003 and the Lokpal and Lokayuktas Act, 2013 as also the anti-corruption efforts in central government are frustrated by the withdrawal of consent by the state governments under the DSPE Act, 1946.
Fight against corruption is sine qua non for good governance. It is strange in governance that the anti-corruption efforts of the central government and its premier anti-corruption agency (CBI) to investigate and prosecute its own public servants who are alleged of corruption and offences under the Prevention of Corruption Act, 1988 are subject to whims and caprices of state governments that are external to the issue of bringing corrupt central public servants to book.
The antiquated pre-independence Section 6 of DSPE Act, 1946 cannot negate a long established time-tested administrative convention as mentioned in Para 2.3 of MHA OM No. 371/13/66-AVD.III dated 25-6-1969 (nearly 50 years of its acceptance and continuance gives it the force of law) as well as the recently enacted Section 8 of the CVC Act, 2003 and Section 20 of the Lokpal and Lokayuktas Act, 2013.
It is pertinent to mention that under some central special laws various central law enforcement agencies exercise concurrent powers of investigation and prosecution along with the state police.
For instance, as the fight against drug menace require concerted multi-agency efforts many central law enforcement agencies such as Central Excise, Narcotic Control Bureau, Customs, Revenue Intelligence, para-military and armed forces are given concurrent powers of investigation and prosecution along with the state police under the NDPS Act, 1988.
The fight against corruption also requires more than one law enforcement agency as corruption is a far bigger menace than drugs.
Moreover, the Centre which has the largest number of public servants than any state needs its own anti-corruption law enforcement agency that is premised on a firm legal foundation and architecture to fight against corruption within the central government. It can neither afford to outsource such efforts to external agency such as state police nor be subjected to the veto of state governments.
As India is a signatory to the United Nation Convention against Corruption (UNCAC), the government of India is under an international obligation to put in place a robust legal architecture to fight against corruption.
Union of India and its instrumentalities have by far the largest number of public servants, and if the functioning anti-corruption law enforcement mechanism within the government of India is subjected to the sweet will of the states, it would make a mockery of India signing the UNCAC.
It is, therefore, imperative that Parliament in exercise of its powers under Article 253 of Constitution, enact a new law or amend the DSPE Act, 1946 suitably to give effect to the UNCAC.
One of the hallmarks of Narendra Modi’s government is its unswerving commitment to fight against corruption in all its facets.
However, the CBI which is the primary instrument of that fight is itself on a shaky foundation.
Hence, as In-Charge Director of CBI, I had submitted a proposal along with a Draft Amendment Bill, to the CVC and the DoPT for comprehensive amendment of the DSPE Act, 1946. I shared the same in my tweet dated 22 October. I hope that the precipitation of the issue by the Maharashtra will be seized as an opportunity by the central government to favourably consider my legislative proposal.
The writer is a former In-Charge Director, CBI, and the views are personal.
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