India still awaits effective anti-graft mechanisms
The federal government has systematically weakened anti-corruption measures and agencies to deal with graft
India’s long struggle to set up a secular and effective anti-corruption mechanism continues. The current national debate and legal battle surrounding the sudden ousting of two top officers from its premier anti-graft agency, the Central Bureau of Investigation (CBI), has once again brought the six-decade-long struggle into sharp focus.
The CBI officers, director Alok Verma and special director Rakesh Asthana, were sent on forced leave by the federal government in what has been described as a midnight coup on the night of October 24.
Verma has approached the Supreme Court to question the legality of the government action in view of protections it has provided to the investigating agency to try to insulate it from political interference and ensure its autonomy.
These protections include a guaranteed tenure of two years for the director during which he or she can only be transferred “in an extraordinary situation”, which “should have the approval of the selection committee”, as per the Supreme Court’s judgment in the Vineet Narain (or Hawala) case of 1997. A judgment on the matter is awaited.
Historically speaking, the struggle for an effective anti-corruption mechanism began in 1966 when an administrative reforms committee envisaged an ombudsman, or top anti-graft watchdog, to address corruption in public services and power centers – known as Lokpal at the federal level and Lokayukta at the state level.
The first legislation for this purpose was brought in and passed by the lower house of Parliament in 1968. However, the house was dissolved and the legislation lapsed. The legislation was brought in eight more times – virtually during every prime minister’s tenure – before it was passed and codified in January 2014.
Lokpal yet to see light of day
However, the Lokpal is yet to see the light of the day (some states have, since the 1970s, adopted Lokayukta on their own) and continues to be the subject of legal dispute in the Supreme Court. In July of this year, the court pulled up the federal government for continuing to stall it for more than four years.
This is in spite of the fact that the governing power at federal level, the Bharatiya Janata Party (BJP) and its associate organizations played a key role in the nationwide anti-corruption unrest that preceded the passage of the law and electorally benefited from it in the 2014 general election.
Another key element in this struggle has been the need to get rid of the “single directive”. This is a set of instructions issued from time to time (and amended) by the federal governments to the CBI mandating “prior sanction” for investigating public servants at decision-making levels (joint secretary and above). It has a curious history. While it was first issued in 1969, it became contentious after a fresh set of directions was issued to the CBI in January 1988 mandating “prior consultation” and “government concurrence” before investigations are initiated following the Bofors scandal involving then prime minister Rajiv Gandhi.
This was struck down by the Supreme Court in its Hawala judgment of 1997, but was reintroduced by Atal Bihar Vajpayee-led NDA government through the Central Vigilance Commission (CVC) Act of 2003, which amended the Delhi Police Special Establishment Act of 1946 under which the CBI functions. The Supreme Court again struck it down in 2014. But the current BJP government under Narendra Modi brought back and passed an amendment in July this year of the Prevention of Corruption Act (PC Act) of 1988.
Among several anti-corruption mechanisms designed by the Hawala judgment was granting a statutory status to the Central Vigilance Commission (which has existed since 1964), and giving it “superintendence over CBI functioning” to insulate the latter from interference. Until then, the CBI was under government control.
CVC rendered toothless
In this way, the CVC became the apex anti-corruption watchdog. But the CVC Act of 2003 turned it into a toothless tiger. It became an advisory body with no power to register a First Information Report about crimes, or to investigate and prosecute criminal cases.
What’s more, the political executive was kept out of its ambit and senior bureaucrats were protected through the “single directive”. Moreover, the CVC’s jurisdiction was extended only to an investigation of offenses under the PC Act, while in all other matters power remained with the federal government, thus negating the attempt to insulate the CBI from government interference.
With the CVC turning into an ineffective institution, demand for the Lokpal intensified. But when the law was codified in 2014 (but rules are yet to be framed), the institution was considerably weakened with no power to take up corruption cases on its own. Instead, it has to rely on complaints. It has an inquiry arm but no investigation arm for which it has to depend on “any agency”, including the CBI, and its “superintendence” over the CBI extends only to such cases.
Multiple laws, while whistle-blowers die
In this way, administrative control remained with the government. Moreover, appropriate amendments were not made to other laws. As a result of this, while the government has administrative control over the CBI, other laws – affecting the CVC, the Lokpal and the Delhi Special Police Establishment Act of 1946 under which the CBI functions – continue to partly deal with the powers and functions of the CBI. This multiplicity of laws has created its own confusion.
Another aspect of fighting corruption has been to provide protection to whistle-blowers. At the last count, 73 whistle-blowers have been killed. The Whistle-blowers Protection Act of 2014 brought in for this purpose has not yet been put into power. Eleven years in the making, the law remains on paper without rules having been framed.
Meanwhile, the BJP government has sought to dilute the act by (i) removing immunity provided to whistle-blowers from prosecution under the Official Secrets Act (OSA) for disclosures made under this law, and (ii) prohibiting certain categories of information from disclosure by a whistle-blower, unless the information has been obtained under the Right To Information Act. It has been passed by the lower house but remains pending with the upper house of Parliament.
Such being the state of affairs, a lot of hope rests with the Supreme Court in the ongoing CBI case to again try and establish an effective anti-corruption mechanism, one which is autonomous and insulated from government interference. Next week’s court hearing may reveal what the future holds.