Cover Story

The ‘Single Directive’ and after

The recent Supreme Court judgment has raised questions
over the efficacy of the Single Directive

img-june14-8EVEN at the cost of stating the obvious, it must be reiterated that, in a democratic set-up, the political executive must take decisions and the permanent bureaucracy tender its considered advice without fear or favour. Institutional integrity requires the two components of the executive to discharge their respective roles in the best interests of the people. It must also be recognised that in the last few decades this well-acknowledged principle has been given the go-by. The principle of political neutrality of the bureaucracy has been compromised in several instances in the recent past.

Therefore, the May 6 judgment of the Supreme Court pronouncing the Single Directive to be violative of the Constitution cannot be faulted. The Court has rightly given its verdict regarding the protection against inquiry/investigation in cases of corruption involving officers of the central government of the rank of joint secretary and above. As I had expected, it has reiterated its earlier thinking on the subject.

But the question is whether, as a consequence of the removal of the Single Directive from the Statute, senior officials of the central government would start giving their professional advice without ‘fear’ of being persecuted at the whims and fancies of an unaccountable investigating agency?The question is how to restore the confidence of civil servants in policymaking and implementation of policies without fear of persecution?

Historically, this protection was not available to senior civil servants before the introduction of the Single Directive and was also not available after it was struck down by the Supreme Court. (This has been referred by the SC in ‘From the date of the decision in VineetNarain case in December 1997 and till insertion of Section 6-A w.e.f. 12-9-2003, there was no requirement of seeking previous approval except for a period of two months from 25-8-1998 to 27-10-1998’). Does any empirical evidence show that there was better governance of anti-corruption investigations during those days? Or, that CBI initiated scores of infructuous investigations/inquiries during those years?

It may also be asked whether investigations against those bureaucrats who are not protected by Section 6-A have been independent, unhampered, unbiased and efficient. Does merely endowing the investigating agency with unchecked powers ensure a clean executive? And finally, should there be a legal remedy in cases of malicious and vexatious inquiries and investigations? Or, should the investigating agencies remain accountable to none?

Be it as it may, the Supreme Court in its wisdom holds that Section 6-A of the Prevention of Corruption Act isinvalid and violative of Article 14 of the Constitution.A reading of the judgment shows that the Court has delved only into the import of Article 14. The burden of the judgment is merely to adjudge whether the differentiation between ‘officers of the rank of joint secretary and above in central government’ and ‘other officers of lower ranks and the officers of the State governments and other public organisations’ passes the twin test of Article 14 viz. (i) the classification must be founded on intelligible differentia and, (ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question. According to the Court, Section 6-A of the PC Act fails both the tests.

The other issues relevant to effective policymaking at the apex level in the government and protection of the upright and honest officers entrusted with a policymaking role have not been accorded much importance by the Court. The Court has also not addressed the issue of accountability of CBI in cases of malicious and motivated inquiries. Perhaps no one should expect due consideration of such administrative issues by the highest judicial authority of the country.

Without going into the fairness of the Supreme Court’s verdict, it would be interesting to discuss its implications on governance. It is an accepted fact that there should not be any hindrance in independent investigation of the conduct of corrupt and culpable civil servants. There is absolutely no place for corrupt bureaucrats in the scheme of things. The point for consideration is whether upright, conscientious and honest civil servants are to be protected from motivated complaints and resulting inquiries.

The Supreme Court in its wisdom holds that Section 6-A of the Prevention of Corruption Act is invalid and violative of Article 14 of the Constitution. A reading of the judgment shows that the Court has delved only into the import of Article 14.

In my discussions with activists and civil servants, it has been frequently mentioned that the honest bureaucrats should not be afraid because no one can touch them. Even if a vexatious inquiry is instituted against them, ultimately no harm will come to them. True, they cannot be touched, but mud can be flung on their reputation and they can be dishonoured in the process. There have been recent cases of retired senior civil servants (in whose case, no permission is required) being accused of acts of commission or omission during their service tenures.

Interestingly, the Court has made a distinction in the case of judges of the Supreme Court and High Courts, saying that ‘In strict terms the Prevention of Corruption Act, 1946, could not be applied to the superior judges and, therefore, while bringing those judges within the purview of the Act yet maintaining the independence of judiciary, this guideline was issued as a direction by the Court’. The feature of independence of judiciary has no application to the officers covered by the Single Directive.

The upshot of the judgment is that policymaking at the highest level in the government is likely to receive another setback. The main casualty would be the people for whose interest the whole structure has been created. The widely alleged policy paralysis in the last UPA government was, to a large extent, due to the fear of CBI inquiries after retirement of senior officers entrusted with giving advice to the political executive.

IN the last few weeks, the issue has been debated in close circles and on the internet. An argument has been proffered that the All India Services are creations of Article 312 (2) of the Constitution of India. Therefore, a reasonable classification can be made in their case and IAS and IPS officials, irrespective of their rank, can be protected from unchecked inquiries and investigations. In my view, it would not be wise to single out any particular civil service, thereby creating avoidable heartburn within the bureaucracy.

Another suggestion relates to the role of the Central Vigilance Commission (CVC). The Central Vigilance Act of 2003, in Section 8 (1), provides for “superintendence” over “investigation of offences alleged to have been committed” provided that “directions” will not require particular actions. It can, therefore, be proposed that if the CBI wishes to start an inquiry/investigation against a civil servant, verification of its conclusion by the Central Vigilance Commission may be an adequate safeguard for honest civil servants taking decisions.

The new government should, in my view, take note of the Supreme Court judgment and assure the honest and upright civil servants of adequate protection of their dignity and honour. At the same time, it would be enormously desirable if the Prime Minister issues directions to his ministers against putting undue pressure on civilservants working under them.

Vol. 8, issue 3 | June 2014

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