Congress stalls Coalgate probe
By Kartikeya Tanna on
On Monday, amid media focus on IPL and BCCI, news came in that the UPA Government had denied CBI the permission to interrogate former Coal Secretary HC Gupta who, according to this Niti Central report, is a vital link in connection with the CoalGate scam. The Ministry of Corporate Affairs rejected the CBI’s request despite the CBI’s argument that Gupta’s role as Coal Secretary between 2006 and 2009 was crucial to the probe.
While this decision by the MCA headed by Sachin Pilot, a politician close to the Nehru-Gandhi dynasty, was on expected lines, it is pertinent to understand how and why the CBI needs the UPA’s permission even to merely interrogate officers who could provide vital links in an ongoing investigation.
The Delhi Special Police Establishment Act, 1946 which applies to the CBI (in fact, the CBI’s official name is DSPE) contains a provision – Section 6A – which has somehow found its way on the statute books despite consistent efforts to get it removed.
Section 6A is worded as under:
Approval of Central Government to conduct inquiry or investigation.-(1) The Delhi Special Police Establishment shall not conduct any enquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to:
(a) the employees of the Central Government of the Level of Joint Secretary and above […]
Readers may note that this provision requiring prior approval does not pertain to the prosecution stage. It seeks to stifle the CBI’s investigation at the initial inquiry/interrogation stage itself!
Moreover, in practice, this provision entails seeking permission from the very department of which the concerned employee is an officer. Although in this case, approval to interrogate a former Coal Secretary was sought from the MCA (because Gupta now heads the Competition Commission of India which is under the MCA), the bizarre consequence of this provision is that the CBI has to seek permission from the bosses of the very department whose actions it seeks to inquire into!
How and why this provision is a law is worth understanding.
Since 1969, each Government had issued it in one way or another in the form of an executive directive. Its stated purpose was to protect decision making level officers from the threat and ignominy of malicious and vexatious inquiries/investigations.
This directive was challenged in the landmark Jain hawala case of Vineet Narain vs Union of India. The Supreme Court struck it down for various reasons, an important one being that the purpose of this directive was more to thwart investigation instead of promoting the cause of justice.
Despite the Supreme Court’s stinging criticism and invalidation of this directive, it has found its way back through legislative enactment. Here is a brief timeline of how this happened.
| April – August 1998: | Government discusses SC’s decision and asks Law Commission to prepare a report. The Law Commission prepares a report and a draft Bill which does notcontain this directive. |
| August – Dec 1998: | The Cabinet meets to discuss these issues. Notably, the Law Commission’s draft Bill is deliberately withheld and is not presented before the Cabinet. Instead, a draft parallely prepared by the secretaries is moved first and placed before the Cabinet. This draft reintroduces the directive, although it states that CBI must get prior permission of the CVC (and not the Government). The Government introduces an ordinance on the basis of this draft. The then Law Minister Ram Jethmalani and the Law Commissioner Justice Reddy express their dissatisfaction at this withholding. Anil Divan, an eminent senior advocate, files written objections to this ordinance in the SC. The Government assures SC that it will reexamine the matter and a new ordinance and bill is introduced which drops this directive. |
| April 1999: | The Lok Sabha gets dissolved and, therefore, the Bill lapses. |
| December 1999: | A fresh Bill is introduced in the newly constituted Lok Sabha and is referred to a Joint Committee of both Houses of Parliament. Sharad Pawar is the Joint Committee’s chairman. |
| November 2000: | The Joint Committee presents a report to both Houses of Parliament and attaches a draft Bill. This Bill reintroduces the directive although, this time, CBI requires prior approval of the Central Government instead of the CVC. |
| February 2003: | Almost two and a half years later, the Bill is passed by the Lok Sabha by a mere voice vote without as much as a flutter in the media. |
The embarrassing aspect, however, for a democracy like India is that 43 countries in Africa, most of which are infamous for corruption, have signed a treaty which seeks removal of any immunities from investigation or prosecution.Since then, this provision has remained on the statute books and been followed umpteen times including yesterday. Perhaps, the strong bureaucrat lobby ensured the continuance of this provision to protect themselves from the consequences of decisions taken for political bosses.
While SC has asked the UPA Government to provide its response on how it intends to make CBI more independent, if recent news reports are any indication, the UPA is in no mood to remove Section 6A. Indeed, the SC which is somewhat monitoring investigation into the CoalGate scam might intervene and give CBI permission to probe Gupta. However, it is unlikely to happen until SC reopens in July.
Until that happens, one can only wonder if any Parliamentarian, whether from the UPA or the Opposition, will seek removal of this provision which gives the ruling establishment unbridled powers to control the fate and direction of high-stake investigations.
http://www.niticentral.com/2013/06/04/congress-stalls-coalgate-probe-85572.html