Among the spate of judgments that the Supreme Court delivered prior to its lengthy summer vacation is one that will no doubt have major implications for administrative accountability, as well as administrative efficiency. It struck down Section 6A of the Delhi Special Police Establishment Act, or DSPEA, as unconstitutional. Under Section 6A of the DSPEA, which provides the legal basis of the Central Bureau of Investigation, the CBI's investigation of an official of or above the rank of joint secretary in the government of India required the permission of the Cabinet secretary. This was a fairly recent addition to the DSPEA, introduced by the National Democratic Alliance government in 2003 ostensibly to protect senior decision makers from frivolous complaints. The Supreme Court has understandably observed that it may lead to trouble when a government is asked to provide sanction to investigate its own officers. It also militates against the intent of anti-corruption legislation. However, it seems the basic reasoning behind the striking down of the section is that it violates the constitutional principle of equal protection before the law. The status of any one individual, this principle states, should not provide him with greater protection from the workings of the law than any other. By putting members of the government with the rank of joint secretary or above in a different class from others, Section 6A was violating that principle, according to the court.
There are several implications of this judgment. In many ways, of course, the first reaction should always be to welcome any step that leads to greater openness and accountability. It is possible that, in the past, several justifiable accusations that might have been in the public interest were instead buried because the government refused to give permission for the investigations to proceed. However, this will not be an unmixed blessing. It is worth noting that much of the administrative paralysis of the past years has arisen from a feeling of fear among civil servants that any decision could become the basis of a corruption allegation, and of a damaging investigation. Sadly, this judgment means that this fear, and the consequent paralysis, will only intensify. A new government that will want to get things moving in New Delhi will struggle against even greater inertia than before.
It is also the case that the powers of the CBI are growing, following ever greater interest from the Supreme Court, but there seems to be little equivalent expansion in its accountability, transparency, or in public trust. The CBI must be freed from political interference. But accountability is not the same as interference. A body with such powers that is also unaccountable to a democratic institution of any kind will likely - indeed, will inevitably - go rogue. Questions are already being asked about the CBI's choice of investigations - about, for example, the first information report against Kumar Mangalam Birla - or about its decisions to not proceed - against, for example, Amit Shah. These decisions must be depoliticised, certainly, but in today's climate merely taking politicians out of the loop does not mean they are depoliticised. The CBI is too important a part of the executive to be left to be reformed by piecemeal action by the judicial system. The new Lok Sabha must take the lead in finding a suitable status for the CBI that allows it to be both accountable and independent.
