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February 25, 2013

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Judicial Activism to Curb Corruption


- Shardul S Shroff, Managing Partner [ Amarchand & Mangaldas ]

Shardul S Shroff

"While India can boast of some of the most progressive and far reaching anti-corruption laws, there are times when investigative agencies enforcing these legislations face undue interference. At such times, the Supreme Court has deftly shown the way back to the high standards set by law"

The hallmark of a strong legislation to fight corruption includes: substantively, applicability to persons who may have been corrupt; procedurally, ability to conduct a free and independent investigation of allegations of corruption and administratively, appointment of persons with integrity to positions of authority in the institutions meant to combat corruption.

Ensuring that these characteristics are entrenched in laws dealing with corruption is the responsibility, of the legislature. Indeed, India can boast of some of the most progressive and far reaching anti-corruption laws: the Right to Information Act, the Prevention of Corruption Act, the Representation of the People Act, the various state lokayut enactments and potentially a lokpal institution. Our agencies and institutions of enforcement like the Central Bureau of Investigation (the CBI), the Central Vigilance Commission (the CVC), etc., have been established on principles of transparency, high standards of integrity and accountability.

However, in numerous instances, investigative agencies have faced undue interference. It has been the Supreme Court that has deftly shown the way back to the high standards set by law. As will be demonstrated below, the court has been the impetus for bringing about legislative change to the institutions fighting corruption, effectively filling any gaps in the regulatory framework.

This article will demonstrate how the court has made landmark public policy pronouncements, held executive bodies accountable and supervised investigations by certain agencies.

The Fight Against Corruption: Judicial Decisions


The Supreme Court has been a conscientious objector to executive excesses and legislative lacunae.

"An anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption"-Justice Ashok Kumar Ganguly, Supreme Court of India

India’s founding legislation on corruption has been the Prevention of Corruption Act, 1988 (the POCA). The act prohibits ‘public servants’ from accepting any illegal gratification as a motive or reward for doing or forbearing to do an official act or to show favour or disfavour to someone in the exercise of his official functions1. The task of putting in motion the provisions of the POCA is entrusted to the CBI under the superintendence of the CVC. The CBI and the CVC have been, by statute, entrusted with the responsibility of holding ‘public officials’ accountable for their actions. However, the histories of these organisations have undergone significant changes, changes brought about by the Supreme Court to strengthen their independence and functioning. The CBI derives its investigative powers from the Delhi Special Police Establishment Act, 1946 (the DSPE), but such powers were earlier limited to specific offences that were notified by the Central Government under Section 3 of the DSPE Act, 1946. Pursuant to Section 4 of the DSPE the Central Government had direct superintendence over the CBI. This provision came with its set of problems.

The case of Vineet Narain v Union of India2 (also known as the Jain Hawala Case) exposed some of the obstacles the CBI faced with interference in the discharge of its duty. This prompted the Supreme Court to make drastic changes in the functioning of the CBI. To begin with, it was directed that the CVC3 be given statutory status and be made responsible for the supervision and effective functioning of the CBI, with the government of the day being ultimately accountable for the CBI’s actions. This ruling of the Supreme Court marked a watershed and was an important step towards ensuring that the CBI functions as a non-partisan, independent agency. The judgement was further validated by the enactment of the Central Vigilance Commission Act, 2003 (the CVC Act), which incorporated most of the directions given in this case. With these measures, there was an injection of visible objectivity in the regulatory framework governing the CBI.

On procedural matters as well, the Supreme Court has highlighted lacunae. The Supreme Court expressed its dismay on Section 19 of the POCA in Dr Subramanian Swamy v Dr Manmohan Singh and Anr.4, wherein Justice Ganguly observed that, "I may not be understood to have expressed any doubt about the constitutional validity of Section 19 of the P.C. Act, but in my judgement, the power under Section 19 of the P.C. Act must be reasonably exercised. In my judgement, the Parliament and the appropriate authority must consider restructuring Section 19 of the P.C. Act in such a manner as to make it consonant with reason, justice and fair play". This case highlighted the impediments placed in the delivery of justice by the prior sanction requirements of Section 19 of the POCA and Section 6A of the CVC Act. Section 6A of the CVC Act requires the CBI to obtain prior sanction from the Central Government before conducting any inquiry or investigation into offences allegedly committed under the POCA by officers above the rank of joint secretary.

Similarly Section 19 of the POCA mandates that no court shall take cognizance of an offence (committed under the POCA) by any ‘public servant’ without the prior sanction of the Central or State governments. The raison d’être for these provisions was to prevent harassment of ‘public officials’ during the discharge of their duty. In this case, the Supreme Court granted sanction for prosecution of former telecom minister A. Raja for his alleged role in the 2G scam. In doing so, the court imposed a three-month limitation period for responding to all applications for sanctioning of prosecution.

The Supreme Court expressed its concern when the Attorney General of India revealed that 126 requests for sanction were still pending out of a total of 319 requests. The court also liberalised the locus-standi rule by allowing a private citizen to file a complaint under the POCA.

The Supreme Court has also given directions on administrative aspects of anti-corruption laws, highlighting the importance of appointing the right people for the job. In Centre for Public Interest Litigation v Union of India5, the Supreme Court questioned the legality of the appointment of a Chief Vigilance Commissioner who was under inv estigation for his role in a scam. The appointment was quashed and the court very aptly observed that "The menace of corruption cannot be permitted to be hidden under the carpet of legal technicalities and in such cases, probes conducted are required to be determined on facts and in accordance with law". More recently the Supreme Court has also been monitoring the 2G trial to ensure that there is no political intervention while the CBI conducts its investigation.

Conclusion


The above articulation demonstrates not just the strength of a system of checks and balances put in place by our Constitution, in that the Supreme Court has been a conscientious objector to executive excesses and legislative lacunae, it also underscores the willingness of the Supreme Court to take on an 'activist' role and fill any governance deficit. Without often commenting on the efficacy of existing anti-corruption legislations, the Supreme Court has, through its judgements and what may be perceived as judicial activism, brought about significant and far reaching institutional and regulatory changes.

 

Disclaimer–The views expressed in this article are the personal views of the author and are purely informative in nature.

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