Errantry - Exploring the quotidian CBI archive

As is fairly well known, the Central Bureau of Investigation [CBI] traces its origins to the Special Police Establishment [SPE]. This agency operated without statutory backing at first, but then was conferred legal basis first by way of an Ordinance [No. 22 of 1943] and then by the Delhi Special Police Establishment Act of 1946 [DSPE] — which remains on the statute book even today. 

The primary task of the SPE was rooting out corruption from public service; or more specifically, central agencies and their officers. The need to combat corruption is perhaps one of those political and legal issues that resonates across time and space in independent India's history. Which is what makes the archive of the SPE a fascinating site to explore for anyone interested in how has the enforcement of laws fared in the past— either for pure, unsullied historical interest, or to draw lessons for the present.

This is the rabbit hole that I stumbled into after having found a copy of the Report published by the Bakshi Tek Chand Committee, or the "Report of the Special Police Establishment Enquiry Committee" (1952). It is a remarkable document in more ways than one. For instance, I did not know that permanent commission for the SPE itself was an uncertainty for many years. Nor did I know that staffing concerns undermined the agency as poorly back in 1952 as they did in the 1990s-2000s, when the Supreme Court decided it had to do something about the CBI's functioning.

The 1952 Report was merely the most visible part of the iceberg. Publicly available material pertaining to the SPE archive extends to providing us with a quotidian account of how the fledgling agency was being run at a time of unparalleled significance for the country. Just before independence we find letters being written to the Chief Commissioner, Delhi, for issuing Curfew Passes to SPE officers as they all lived in Old Delhi and could not manage to travel for work (!). It also has an interesting portrait of the officer in-charge of the agency in its initial years, one T.A. Bambawale. 

The organisational setup shows how threadbare the operation was, a feature of the fiscal constraints as well as constraints imposed upon by partition on the availability of officers. We see detailed progress reports of cases being maintained and circulated, as well as acquittal reports with remarks by officers. There is protracted letter-writing on financial questions such as who should bear costs of hiring special counsel running a trial — a debate running from 1948 till 1953.  

The archive shows us the other side of the story too: petitions to various authorities by persons aggrieved of their prosecutions. Writing to the agency the grounds invoked are in the language of law. And when that leads to no avail the aggrieved parties did not hesitate to write to the ministers themselves, invoking the idea of a "people's government" for good measure. All of this, mind you, was happening in the immediate aftermath of Independence Day on 15.08.1947 so as to curb further hearings scheduled for October — the wheels of justice continuing to turn and to give glimpses of the every day in an extraordinary moment.

For the lawyer, I particularly enjoyed glimpses from the archive about how legal procedures played out. A few of these vignettes pertained to one case — a prosecution against M/s JK Gas Plant and its directors for (essentially) illegal sale of iron during the War [part of the same group which is today responsible for other 'JK' businesses in India]. While I could not locate the fate of the trial which was proceeding before one of the Special Tribunals constituted through an Ordinance during the War [and retained pursuant to a logic of perpetual ordinances], the archive shows us that it was a somewhat sensational case where one of the accused [B.B. Mathur] sought police protection alleging threats to his life in August 1947 made by / on behalf of the other director of the company. His plea was found genuine and he was granted protection, up till July 1948 when it was withdrawn on his own request. Far more mundane was the affair surrounding summoning of a key prosecution witness for the trial. This witness was now in Pakistan, and a government employee. In a series of events all too familiar to criminal lawyers today, the government bungled up the manner in which summons had to be served on a witness residing abroad, delaying the trial. In a series of events all too familiar to witnesses, the case kept getting adjourned on multiple dates thereafter when the witness was present. Ultimately, the Pakistani authorities wrote to their Indian counterparts to complain about the sheer wastage of time this exercise had occasioned, and requested if a commission could come to Pakistan whenever the proceedings did decide to record evidence.

Unsurprisingly, some effort appears to have gone into thinking about publicising the work of this agency in which such faith was instilled. The publicity drive extended to more general efforts at informing the public about the existence of the SPE [a more low key version of governments doing automated calls to inform citizens about anti corruption bureaus]. In an odd twist, the generic piece so published ended up suggesting there was too much corruption, not the kind of messaging the government wanted. The solution became to share all draft articles with the government before publication. Careful measures were taken to publicise convictions, with press notes being circulated by the government through agencies like the AP etc and also being placed in newspapers of the day. Much of these pertaining to cases where officers were caught "red handed". 

The catching of officers "red handed" is a technique that remains prominent to this day. Today these are called 'trap cases' where often the officer is entrapped into taking a bribe, with witnesses at hand to catch him in the act. Back in the day, a feature of the traps laid by the SPE appears to have been using judicial officers are eyewitnesses to the exchange of bribes. Such a 'committed' judiciary might have been the stuff of dreams for some in new India, but it was not palatable to more conventional heads such as the Justices of the Calcutta High Court [AIR 1951 Cal 524], who strongly deprecated the practice in 1951. A few years later [1954 SCR 1038], dealing with a set of appeals against convictions resulting from prosecutions launched by the SPE, the Supreme Court also dealt with a trap case. Here, not only had the SPE made an Additional District Magistrate a witness, but it had also supplied the bribe money for laying the trap [a princely sum of Rs.25,000/-]. While the Supreme Court accepted that laying of traps may be necessary on occasion, it strongly condemned the SPE having supplied the bribe money and having used members of the judiciary as witnesses for the trap. 

The archive suggests that one of the reactions at the level of the SPE was to quickly reorient itself to make sure that it could use the technique of entrapment effectively. Accordingly, a memo was issued to all the ministries to depute officials who could serve as independent witnesses whenever the SPE asks, citing the need for independent witnesses to bolster the legitimacy of the entire exercise. It would be interesting to see what memos were generated in respect of the SPE using its coffers to set the trap itself!

No Swords, But an Absolute Shield: India’s Overbroad Judicial Immunity Against Corruption Prosecutions

(This post first appeared on the Global Anticorruption Blog) 

Over the past four decades, India’s “activist” higher judiciary (the state High Courts and the federal Supreme Court) has significantly altered the balance of power between branches of government. This has been done by liberalising the rules on who can petition the court for relief, as well as expanding the scope of the judicial relief that can be provided. Today it is entirely normal for the Court to take up the task of monitoring the execution of government policies as well as the progress of criminal investigations. But this expansion of judicial power has not been matched by a coequal expansion of oversight mechanisms to ensure that judicial power is not abused—a significant problem given the serious corruption problem in India’s courts (see also here). Certain problems with the court system have attracted the attention of both commentators and the Parliament, including the Chief Justice’s unfettered power to assign cases to different judges and the system for appointments and impeachment. Surprisingly, far less attention has been paid to another instance of no oversight over the judicial branch: the doctrine of judicial immunity. 

Across countries, judicial officers are conferred broad judicial immunity to allow courts to fearlessly perform their functions. Significantly though, in most countries this protection applies only to acts in furtherance of the “judicial function”; for acts outside that scope, judges are subject to the law just like ordinary citizens. Not so in India. In 1991, the Indian Supreme Court created a rule that no criminal investigation whatsoever could begin against a member of the higher judiciary without first “consulting” the Chief Justice of India (or, if allegations are against the Chief Justice, consulting with any other Supreme Court Justice). According to the Court, this rule was needed to protect judges from “frivolous prosecution and unnecessary harassment.” 

Such a broad judicial immunity rule makes no sense, either generally or in the Indian context. While it’s reasonable to prevent a judge from being prosecuted for how she decided a case, it makes no sense to protect her for having murdered somebody, or taking a bribe. Indeed, in addition to its other obvious problems, this broad judicial immunity rule creates serious difficulties for efforts to fight endemic judicial corruption in India. 

Most straightforwardly, the “consultation” requirement delays proper investigation of corrupt judicial officers, and may sometimes block investigations altogether. The most recent example came in December 2017, when the Chief Justice denied permission to investigate a judge of the Allahabad High Court for corruption, though the Chief Justice found the material sufficient to recommend the judge’s removal. By shielding officials in this fashion, the system engenders corruption by fostering a lack of transparency and accountability. Even if one accepts that investigative agencies can be manipulated to bring about frivolous cases in India, the law already protects public servants—including judges—from prosecutions for their official acts by imposing a need for administrative consent. The additional judicial immunity protections only burden the investigative process. 

In other contexts, the Indian Supreme Court has sharply criticised legal provisions that require consent of a higher official before proceeding with a prosecution, given the tendency of such a system to delay or derail corruption prosecutions. Yet the Court refused to recognise the potential for similar abuses in its own case. It’s also telling—and troubling—that India’s special judicial immunity rule applies only to higher court judges, not to trial court judges. One struggles to find a reason behind this limitation except for the status that the higher judiciary occupies. Again, the Court’s doublespeak while dealing with other branches of government and itself is striking: In 2014 the Court did not hesitate to nullify similar protections for senior bureaucrats, finding that a similar status-based classification was arbitrary. But when a petition concerning the judicial immunity came up last November, it was re-affirmed by the Court. 

The 1991 rule should be eliminated. Even if a complete rescission of the rule does not come to pass, at the very least some exclusions to the blanket rule are urgently needed. For instance, judicial immunity should not apply in cases where a judge is charged with taking bribes for exerting influence outside beyond her judicial role. India should take firm steps to remind its citizens and the world that merely donning the robe does not automatically render any individual above scrutiny. 

Amendments to the Prevention of Corruption Act: Prosecuting Public Servants

The previous posts on this Blog discussed two new additions brought by the 2018 amendments to the Prevention of Corruption Act, 1988 [PC Act], namely a standalone offence punishing bribe givers, and a foundational change in how corporations can be prosecuted on corruption charges. In this post, I discuss changes made by the amendments that affect the traditional concern of Indian anticorruption legislation: prosecuting corrupt public servants.

The Existing Regime

Before moving on to the changes, it is worthwhile to spend a minute on the existing regime. The PC Act carried two main provisions to combat corruption: Sections 7 and 13. To avoid getting entangled in the technicalities, let's take a simpler version of how they worked, focusing only on the more important parts. There was Section 13(1)(e), which punished public servants caught in possession of assets disproportionate to their income. And then there was the muddling overlap between Sections 7 and 13(1)(d). The former targeted public servants accepting / obtaining anything beyond their salary (cash / property etc.) to do their job. Section 13(1)(d) only targeted them obtaining things, by corrupt means or abusing their position as a public official. The differences, then, were two: (i) according to several court decisions, Section 13(1)(d) needed a demand by public servants, and (ii) Section 13(1)(d) did not need the illegal transaction to revolve around performance of public functions. Totally different from this conundrum was the problem of Section 13(1)(d)(iii), which courts read as not requiring any demand or public function. It was seen as a strict liability offence, whose requirements were met as long as the public servant got any "valuable thing or pecuniary advantage" for another person without any public interest. 

2018 Amendments to Substantive Law: The Text

Very little of that existing regime has been left in place by the 2018 amendments. Section 13(1)(d)(iii) no longer exists. The rest of Section 13(1)(d) has been merged with Section 7 to form one composite offence. The new Section 13 only carries two offences - the erstwhile Sections 13(1)(c) and 13(1)(e). Since the bulk of changes are codified in the new Section 7, let's focus on that:

Section 7. Any public servant who, - 

(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of any public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or 

(b) [ditto], as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or by another public servant; or 

(c) performs or induces another perform to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, 

shall be punishable, with imprisonment ... not less than three years but which may extend to seven years ... 

Explanation 1. - ... obtaining, accepting, or attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

...

Explanation 2. - ... (i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a [public servant], obtains or accepts or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant, or by using his personal influence over another public servant; or by any other corrupt or illegal means; ... 

I spoke earlier of overlaps between Sections 7 and 13(1)(d) in the PC Act. The legislature has chosen to resolve that issue by deleting half of Section 13(1)(d), and clubbing those parts with the scope of Section 7. This has been done through Explanation 2 to Section 7, which carries forward large chunks of the old Section 13(1)(d) PC Act. What, then, is the conduct prohibited by Section 7 after the amendments? It punishes three kinds of transactions between public servants and others involving an "undue advantage" changing hands / about to change hands:

• Section 7(a) requires that the exchange be accompanied by the public servant intending to perform / cause performance /forbear performance of a public duty either improperly or dishonestly, be it her duty or that of another public servant;      
• Section 7(b) requires that the exchange to be as reward for improper or dishonest performance / forbear performance of a public duty in the past by a public servant;
• Section 7(c) requires the improper or dishonest performance / forbearance of public duty, or inducing such conduct in another public servant, in anticipation or in consequence of accepting an undue advantage.

Substantive Amendments: Hits and Misses

The deletion of Section 13(1)(d)(iii) from the PC Act marks the end of a long saga of a fight between the bureaucracy and the government. Ever since 2010, when the Delhi High Court ruled that the offence did not require proof of any associated mental state, it became possible to prosecute public servants simply for making a bad decision. For instance, if an official in a Public Sector Bank grants a loan to X, who then defaults, technically the public servant obtained a valuable thing or pecuniary advantage for another person without any public interest. Although the Delhi High Court's decision incorporated safeguards against such a broad reading, the bureaucrats were not convinced, and had been lobbying for change. The 2018 amendments mark their victory.

Creating a broad corruption offence and reducing overlaps and resulting confusion between Sections 7 and 13(1)(d) is a good idea. But unfortunately, it suffers from poor execution, as the new Section 7 is still plagued by unnecessarily confusing text, as I illustrate below. 

• First, the confusion with 7(c). It targets two kinds of scenarios: (i) a public servant does her job dishonestly / improperly expecting to get an undue advantage for doing so, (ii) a public servant does her job dishonestly / improperly having accepted an undue advantage for doing so. Scenario (i) can easily be described as the public servant being rewarded for doing her job dishonestly / improperly - which is exactly what Section 7(b) targets. Scenario (ii) can be seen as a public servant intentionally accepting an undue advantage to do her job dishonestly / improperly - which is part of what Section 7(a) covers. Thus, arguably Section 7(c) is not really covering any extra ground. 
• Second, consider Explanation 1, which effectively says that the Section 7 offence is complete as long as a public servant gets an undue advantage, without a need for improper performance of duty. But we already knew this, since Section 7 uses the words improperly or dishonestly to describe the conduct of public servants. Why add an unnecessary explanation? 
• Lastly, consider Explanation 2(i), which makes explicit the links between the new Section 7 and the old Section 13(1)(d). Perhaps this is useful to make it clear to the police and courts that this offence also deals with what the old Section 13(1)(d) covered. But, this is simply not the case. Even though some language is carried forward, the old Section 13(1)(d) does not survive. I say this, because all that the old offence required was a public servant obtaining an undue advantage without any need to draw links between this transaction and the performance of a public duty. Basically, it criminalised a public servant extorting persons into giving bribes. But all three clauses in Section 7 hinge around the performance of a public duty, besides exchange of an undue advantage. Ultimately, Explanation 2(i) is unnecessary: since the means by which a public servant obtains the undue advantage are irrelevant for the offence, why talk about it?      

2018 Amendments to Procedural Law  

Section 19 of the PC Act creates a need for prior sanction to prosecute public servants on corruption charges; i.e., prior government approval before judicial proceedings can begin. This provision has a cousin in the general law on criminal procedure - Section 197 of the Criminal Procedure Code 1973 [Cr.P.C.]. There used to be two points of difference between these provisions. First, Section 19 PC Act only applied to active public servants, while Section 197 Cr.P.C. covered both active and retired public servants. Second, Section 19 PC Act applied in almost all cases under that law, while Section 197 Cr.P.C. applied to all kinds of cases, but only if the allegations concerned acts / omissions of the public servant in discharge / purported discharge of official duties [for a discussion of the judicial treatment of this test, see here]. The 2018 amendments to Section 19 PC Act have eliminated the first distinction; now sanction to prosecute cases under the PC Act will also apply to public servants employed "at the time of commission of the alleged offence". Section 19 PC Act will now also carry different rules on sanction in cases that are not instituted by law enforcement, giving public servants more opportunities to stop proceedings at the outset. While the amendments codify Supreme Court directions for a 3 month time-limit on sanction, there is no rule that failure to comply with that limit will result in sanction being deemed to have been granted.      

Far more significant than this expansion, though, is the insertion of Section 17-A into the PC Act. This provides that investigations regarding "any recommendation made or decision taken by [a] public servant in discharge of his official functions or duties" also need prior government sanction. Thus, police cannot even start corruption investigations without prior approval, a process that can take up to three months, although there is an exception for cases where a public servant is caught red-handed while obtaining / accepting an undue advantage [Provisos to Section 17-A]. Note, though, that while Section 17-A applies to PC Act offences, its structure is akin to Section 197 Cr.P.C. - prior sanction is needed only if allegations concern any recommendation / decision in discharge of official functions or duties. 

Section 17-A And Sanction: Old Wine in New Bottles

While prior sanction for investigations are not as common as prior sanction for prosecution, there is a legacy of laws protecting public servants against investigations too. The most famous being Section 6-A of the Delhi Special Police Establishment Act, 1946 [DSPE], which only shielded senior bureaucrats in cases pursued by the CBI, and was struck down as unconstitutional in 2014 primarily because of this selectivity in scope. In the years since, there have been selective attempts to revive that protection, most recently in the State of Rajasthan. Section 17-A marks a re-introduction of such protections at the federal level, this time without any rank-based logic. Though one suspects that it will be more common for this protections to be claimed in allegations against senior bureaucrats who occupy decision-making roles.

Are such protections for public servants legal? The Supreme Court considered the constitutionality of Section 197 Cr.P.C. in 1956, when one Matajog Dobey argued that this violated the equal protection clause of Article 14. Why, Dobey argued, should public servants not be taken to court like the rest of us? The Court disagreed, finding merit in the colonial logic that public servants needed this rule to protect them against vexatious litigation. As I mentioned above, the Supreme Court took up the issue of requiring prior sanctions for investigations in 2014 when it considered the legality of Section 6-A of the DSPE Act. But it did not rule that such protections from investigations were bad per se, and instead chose to tackle the arbitrariness of only protecting certain kinds of public servants and not the entire set. That is where the law stands today: public servants are certainly in a different class, but the extent of their privileges remains unsettled.

While discussing amendments passed by the State of Rajasthan in 2017 here, which introduced very similar rules for that state, I suggested that this temerity of the Supreme Court might render it difficult for any court to now turn around and say that requiring prior sanction for investigation, when applied to all public servants, is unconstitutional. In that post, I also described how, rather than condemn the idea of sanction outright, the judiciary used the "official duties" language in Section 197 Cr.P.C. to regulate what kinds of conduct could require prior sanction (An entire monograph can be dedicated to the unprincipled way in which it has done this). Since 1997, when the judiciary went beyond mere regulation to hold an earlier avatar of Section 6-A of the DSPE was unconstitutional, there has been a constant tussle between judiciary and executive. Courts would nullify protections from investigations, only for governments to reinstate it in new ways. Section 17-A appears to be the central government's response to the judicial nullification of Section 6-A of the DSPE Act. I suspect that the cyclical trend will send the ball back to the judiciary, as the legality of Section 17-A will certainly be challenged before the Supreme Court. Once and for all, the Court can then set the record straight and tell us what it thinks about laws shielding public servants from investigations, putting them truly in a class of their own above the rest of us plebeians.  

Conclusions and Next Post

As this post discussed, not only do the 2018 amendments to the PC Act introduce brand new areas to the law, they also make substantial changes to the core concern of Indian anticorruption legislation: the prosecution of corrupt public servants. By streamlining the substantive offences, the amendments have taken a step in the right direction. Sadly, these progressive steps suffer from familiar flaws in terms of poor legal drafting. But equally important, if not more, are the changes brought about to the law on requiring prior sanctions to prosecute public servants for corruption. Not only have existing shields against prosecutions been fortified, but an entirely new protection against investigations has been introduced. This provision cements just how big a shift has been made from the old regime: not only did is Section 13(1)(d)(iii) deleted from the PC Act, but conduct which was earlier a basis for prosecution is now the subject of additional protections through the amendments. Perhaps because of this, it is difficult to avoid a sense that the PC Act will now carry lesser bite while going after public servants. In the next and final post of this series, I will look at the addition of a forfeiture regime to the PC Act, an area where more bite has seemingly been added to the law. 

The Rajasthan Ordinance, and Seeking Sanction to Prosecute and Investigate Public Servants in India

In September 2017, the Rajasthan government issued an ordinance that sought to (i) make it necessary for investigating authorities to first get sanction from the government before pursuing allegations against a public servant, giving the government up to six months to consider, and (ii) bar any person from disclosing any details about the concerned official until this permission had been granted. The Government has since moved a bill in the legislature to make the law permanent, while the ordinance itself has been challenged before the Rajasthan High Court which is yet to decide the case. News media has seen few supporters barring a Junior Law Minister in the Union government supposedly considers the ordinance 'perfect and balanced'. Most others are challenging it for stifling investigations and illegally curbing the constitutionally protected freedom of speech.  

Are there any merits to, if not all, then some parts, of the Ordinance? Might we see more such ordinances across states in the near future if Rajasthan's version passes judicial muster? I have been thinking about these questions, and here, I try and understand them through this post. Understanding needs context, which is often absent from discussions of sanction in India. This post begins with a brief historical introduction to the 'sanction to prosecute', flagging the recent constitutional problems surrounding the concept. I then try and suggest that the Rajasthan ordinance is the logical aftermath of the judicial treatment of sanction. This means, unfortunately, that this is a rather long post. I hope it isn't long and pointless.

The Imperial Lineage of Sanction to Prosecute

Most legal systems recognise the right of an individual to pursue legal remedies when her rights are violated. If you beat me up, I have the right to pursue a case in court against you. In India, this can happen by either approaching the police who might take the case to court after investigation, or by going to court yourself. Now, it is easy to imagine the possibility of this (or any) right being abused - I might bring a false case to harass my opponent. We address this through preventing or punishing such conduct. The idea of seeking permissions to bring lawsuits fits in the former, which is basically what seeking 'sanction to prosecute' is. An administrative superior acts as a filter to ensure frivolous cases are not brought in court against public officials. The Criminal Procedure Code 1973 [Cr.P.C.] carries this filter in Section 197, which requires prior sanction to 'prosecute' (this is important) public servants (both serving and retired ones) only when allegations concern things they did actually in the course of duty, or purporting to be so.      

But why public officials, you might ask. An educated guess is India's colonial context informed this decision to protect those associated with government. The colonial regime introduced sanction in its first comprehensive criminal procedure code of 1861 [Section 167, at page 186 of the link], and kept it in the 1872 Code [Section 466, at page 509]. The modern version of this which I referred to above came in the 1898 Code [also Section 197, at page 141]. Broad protections shielded those working for the government who, to put it mildly, did not hesitate to step beyond the bounds of law while discharging their duties. A harsh terrain mandated harsh methods, and to allow prosecutions would stifle the governance project (opening for potential historical research examining if native and British persons were treated differently when it came to granting sanction!). Though speculative, I think this idea fits better than the arguments floated in London to defend similar restrictions to prosecute (the link is for debates in 1934, but the law remained the same even before). English law focused more on the nature of the offence rather than the offender - sedition, corruption and other potentially sensitive allegations could only be pursued with the Attorney General's consent, while the Indian version focused on the identity of the defendant and covered every person under the pay of the government. 

Over time it seems this justification changes, as seen from debates in the House on the Government of India Act 1935, which gave constitutional bases to protections for public servants from suits and prosecutions [Sections 270-71, at page 105. Fascinating, showing the crown was concerned about soon-to-be-elected local governments possibly changing the law on this front]. The legislature spent more time discussing civil suits, but the debates are useful for the criminal prosecution issue nonetheless. Mr. Thorp (column 54) spoke of how it was 'introducing a dangerous principle'  to India and could hurt genuine cases, while the Duchess of Atholl (column 55) spoke of apprehensions that the clause 'falls short of what civil servants feel to be necessary'. This largely mirrors the divide that we see today. Bureaucrats consider it necessary to have these protections to perform their duties while aggrieved persons consider them as impediments of entitlement. 

Independent India and the Opportunity Doctrine 

What became of the requirement of sanction in independent India? Well, it was quickly subjected to a constitutional challenge. In Matajog Dobey [AIR 1956 SC 44] the petitioner argued that Section 197 violated the equal protection clause by giving public servants protections from legal proceedings that others did not have. The Court swatted this aside by holding that public officials 'have to be protected from harassment in the discharge of official duties' while ordinary citizens did not. The vast category of public servants under the pay of the government - both union and state - was thus recognised as a class separate from all others, a distinction that has not been displaced. 

This did not mean the judiciary was not concerned with the debates that I highlighted above. In fact, the concern was palpable. High Courts before independence, and later the Supreme Court too, were acutely aware of the tightrope being tread - read the requirement too narrowly and you render the protection illusory, but read it to cover everything a public servant does and you make accountability a mirage. The judicial device created to navigate this problem was what I will call the 'Opportunity Doctrine' - if public office merely gave an opportunity to commit crime, then there was no need to get sanction. But where the alleged criminal acts were inseparable from the office and were 'integrally connected' to official duty, sanction was a must. So, if a public official misuses the privileges of office (goes on a joyride with government sponsored fuel) then prosecuting that offence should not require sanction. But if a municipal authority colludes with one real-estate developer to allot land at cheap rates, then we may need prior sanction to prosecute.          

The malleability of the Opportunity Doctrine should not go unnoticed - beyond the obvious cases it left a huge middle ground to be navigated with little more than gut instinct. For instance - what about the bank official who pilfers funds for his own use? Did his job merely grant an opportunity, or was it integral to the crime? The judicial grappling with sanction had a significant impact on the text itself. For starters, the test ignored that Section 197 never required an integral connection with duty: it's needs were met even if the acts were purportedly in discharge of duty. Since sanction was a tool to filter cases at the outset, it naturally required this broad scope. Considering whether sanction was needed in post-conviction review (appeals) by courts slowly dislocated it from its preventive roots. After all, how willing would a judge be to reverse a conviction arrived at after a lengthy trial on the technicality of there being no sanction to prosecute an official? This version undoubtedly tapers over the cracks but it would be difficult to argue that the broad shifts are not as I suggest.  

The Intra-Branch Dialogue and Sanctions to Investigate 

Thus we see how courts assumed control of the sanction to prosecute after having refused to strike it down as unconstitutional. Did this happen in a vacuum? Or did the legislature and executive - consisting several public servants protected by sanction - react? They did, and pretty quickly. In 1969 the government passed directions to the Central Bureau of Investigation that prevented it from starting any investigations against high-ranking public servants before getting permission. This was the 'Single Directive'. The thinking is clear - courts are applying a hindsight test which does not filter well, so lets go further back in time and filter at the institution of criminal cases. While doing this, the government impliedly admitted that the sanction protections are too broad to justify the rationale of their protecting public decision-making. Of course decision-makers must be treated differently from the ordinary rank-and-file bureaucrats, and so the latter would not be granted these protections.    

The Supreme Court did not agree that the public servants could be segregated like this. When the Supreme Court held this arrangement illegal, the government responded by re-introducing it almost immediately. When the Court slapped on the government's knuckles it retreated and withdrew the proposed change. But in 2003, it went ahead and amended the law to give it firm footing. While India's major political parties often don't look eye to eye, these moves were made both by the Congress and BJP led governments, showing a fairly clear indication of legislative will. What happens next? This statutory provision [Section 6-A of the Delhi Special Police Establishment Act 1946] was also struck down as invalid by the Court in 2014. On both occasions when the court struck down this protection, it did not overturn the Matajog decision to find sanction requirements were bad for creating an invidious classification between persons. Instead, the Court held that protecting only a class of bureaucrats was bad. How do you read this? Is the Court saying sanction should be limited to instituting prosecutions as done in the CrPC? Or is it saying that some public servants are not more equal than others, but all public servants are more equal than the rest of us. The second is a fair reading, and it was something the Court had agreed to in MK Aiyappa while handling sanction requirements under the Prevention of Corruption Act 1988 (a blistering commentary on the case can be read here). If the court reads the law this way, does it come as a surprise that others, such as the Rajasthan and Maharashtra governments, are doing the same? 

Past, Present, but what of the Future?

Maybe it is just me, but I can't help but notice patterns in how the law on sanctions to prosecute has been developing over time. There is a constant back and forth between the court and government - the court restricts its scope, the government expands it again. All of this was happening within the bounds of the constitution until the Supreme Court upped the ante and held the Single Directive to be unconstitutional in 1998. The government had been running the initiative for nearly thirty years to ensure lax sanction rules did not affect decision-makers, and the Court decided it didn't matter in the language which it could use - the Constitution. Was it inopportune? Perhaps. If the Court had a problem with having a sanction requirement then it should have said it outright. If it didn't, then there were better methods of dealing with the situation than refusing to acknowledge the few merits in the Single Directive scheme and starting a power tussle with the government. Today, because of how the Court avoided the forest for the trees, I think it will be hard for the Rajasthan High Court to hold that needing permission to start an investigation against public servants is unconstitutional. That might just convince the remaining BJP led states to pass similar laws, eventually bringing us back to the Supreme Court. Might the Court finally reconsider its position on all public servants being a separate class from the public?  

Guest Post: Understanding the CBI

I am pleased to present a guest post by Ms. Deekshitha Ganesan, a Fourth Year student in the B.A. LL.B. (Hons.) Programme at NLSIU, Bangalore 

The Central Bureau of Investigation is commonly seen as India's premier investigation agency, tasked with solving the most challenging cases. This, naturally, has lead to an intense level of scrutiny of its every move - best seen through the constant media updates surrounding the allegations against the former Director. However, the actual workings of the Bureau: its statutory basis, funding, operational methods etc. are relatively unknown to most of us. Through this post, I wish to explain these rather lesser known aspects of the CBI, and highlight some major issues plaguing the functioning of the Bureau. 

History

In 1943, the Special Police Establishment ["SPE"] was established by Ordinance (No. XXII of 1943) to deal with those individuals taking wrongful advantage of the emergency conditions during WWII and enriching themselves at the cost of the Central Government. Soon there was a challenge to its validity, which led to passing of the Delhi Special Police Establishment Act, 1946 [“DSPE Act”]. The Act was in exercise of powers conferred upon the Central Legislature through Entry 39 of List I of the Seventh Schedule to the Government of India Act 1935. Subsequent to the statute, the SPE was transferred under the Ministry of Home Affairs and its functions were expanded to cover all Central Government departments. Investigations into matters of the state government needed their consent. In 1963, the Ministry of Home Affairs passed Resolution No. 4/31/61-T creating a Central Bureau of Investigation, and the functions of the SPE were transferred to the newly created Bureau. Today, the CBI falls under the purview of the Department of Personnel and Training [“DoPT”] of the Government of India. It has six branches/wings, one of which absorbed the erstwhile SPE.

Resources

With the CBI under the DoPT, until 2013 its budgetary allocations were subsumed under the allocation for the DoPT. In 2013, in response to an affidavit of the Central Government rejecting the CBI’s demand for greater autonomy, the Bureau pointed out the many layers of scrutiny within the DoPT to requisition money spent on basic facilities such as laptops for investigators on the field. Since then, the interim budget of 2014 and the 2015 budget have both included separate, specific budget allocations for the CBI. However, there is no clarity as to whether this was a result of a Supreme Court order.

Despite the limited financial autonomy, the CBI deals with a huge variety and volume of cases. This necessitated establishment of a Central Forensics Science Laboratory [“CFSL”] in New Delhi with 11 divisions, under administrative control of the CBI. The CFSL also has a Digital Imaging Centre to assist in the analysis of electronic evidence. In a controversial move, the Government Examiner for Questioned Documents [“GEQD”] was merged with the CBI to assist in the investigation of white collar crimes. GEQDs across the country argued they were pioneering organisations in the field of forensic sciences and that their documentation divisions and those of the CFSL function differently, which will make coordination difficult. Nevertheless, the Government went through with the decision in 2012. More recently, in May 2015, a new CBI Academy was inaugurated at Ghaziabad to decode information contained in Apple and Linux devices to aid in the investigation of bank frauds, cyber crimes, complex financial crimes, among other conventional crimes.

Expertise and Commencing Investigations

The history of the organisation makes it evident that its expertise lay in economic crimes, and this forms the bulk of cases handled by the Bureau today as well. However, being the sole investigative agency beyond the powers of the State Government contributed to a perception of the CBI as an "independent" organisation. Consequently, several sensitive cases regardless of their nature continue to be transferred to the Bureau owing to allegations of bias in investigations by the local State Police. How does the CBI operate? The division of labour between Union and State Legislatures means there is a need for specific consent from the concerned state before the CBI begins investigating in its territory [Section 6]. Even otherwise, the Union must specify by notification the offences/classes of offences which are to be investigated by the CBI [Section 3]. Therefore, the preliminary challenge to any investigation is the issue of consent. Recently, a Constitution Bench clarified that the requirement of consent does not affect the powers of the Constitutional Courts to order the Bureau to conduct an investigation in spite of any consent from the concerned government [See, State of West Bengal v. Committee for Protection of Democratic Rights, AIR 2010 SC 1476].

Another preliminary issue is that of obtaining sanction. Prosecuting public servants in India involves taking a prior sanction. In the case of the CBI, Section 6A of the DSPE Act was inserted in 2003 making it necessary to obtain a sanction even before beginning an investigation on allegations against certain officers. Apart from it being an unreasonable fetter on the CBI's investigative power, it was also argued that placing certain officers behind such a protection was unconstitutional under Article 14. The issue was referred to a Constitution Bench of the Supreme Court, and in Dr. Subramanian Swamy v. Director, CBI [(2014) 8 SCC 682] Section 6-A was struck down as unconstitutional. 

Conducting an Investigation

Investigation is required to be conducted as per the provisions of the Code of Criminal Procedure, 1973 and the Crime Manuals merely act as guidelines However, the CBI does not investigate all offences falling under a notification under Section 3. As per Chapter 1 of the CBI Crime Manual, there exists an arrangement between the State Police Force and the CBI on division of cases to ensure coordination and avoid duplication. This is to be seen in light of the fact that ‘Police’ is a State subject and Section 6 of the DSPE Act which requires permission to be taken for exercise of powers by the CBI in a State.

The CBI is empowered to conduct investigations based on complaints received from any person, including members of the general public. Upon receipt, the complaint is forwarded to the appropriate branch of the CBI. However, the most common way by which the CBI begins investigation in a case is upon complaints from the Central Government Departments, State Governments, Ministries and Public Sector Undertakings etc. In these cases, the procedure for registration and verification of the complaint is required to be followed. However, where the complaint itself mentions specific allegations and reveals a criminal offence that is fit to be registered as a Regular Case, the permission of the Competent Authority is required to be taken. 

Conclusion

The most important issue surrounding the CBI today is the debate surrounding whether a separate statute should be enacted to recognise its independence. At the moment, right from its constitution to the list of offences which it can investigate, everything is determined by the Central Government. Until very recently, the CBI needed the sanction of the Central Government to prosecute certain classes of bureaucrats. Many officers of the CBI have suggested that the Bureau's powers and autonomy should be along the lines of those granted to the Election Commission. Without a statute clearly defining the extent of the Bureau's powers, without removing the curbs on its powers laid down in DSPE and without amending the extent of the Central Government’s superintendence over the CBI, decisions like that of the Gauhati High Court in Navendra Kumar v. Union of India & Anr. [Writ Appeal No.199/2008, decided on 06.11.2013], will continue to be a reality.