The proposed CrPC amendments and allied actions reveal the Maharashtra government’s determination to throttle public accountability
A government besieged by allegations, complaints and incidents of corruption in the rank and file of its administration, police and ministers has two options – either take the bull by the horns and allow the accused to face the full force of the law, albeit also ensuring that they aren’t subjected to any unfairness. Or, adopt a variety of means to scuttle any process to bring accountability. If the second course is to be adopted, the easiest and most effective way is for the government to retain, by means fair or foul, principal control – the power to grant sanction, or permission to prosecute. This is indeed a sweeping power, exercised quite subjectively on most occasions, rarely subjected to strict judicial censure, although abused frequently and often the subject of the public’s indignation and outcry.
On May 6, 2014, the Supreme Court threw a spanner in the works. A Constitution Bench, while striking down Section 6E of the Delhi Special Police Act, held that any legal provision which mandates the seeking of prior sanction before conducting an investigation or prosecution militates against the letter and spirit of the Prevention of Corruption Act, and is therefore unconstitutional. Section 6E was commonly known as the “Single Directive” which stated that no bureaucrat holding the rank of Joint Secretary and above, and no MLA or MP could be proceeded against without the nod of the government or the respective competent authority. The court held that any law which created a special category of public servants who are treated differently and granted more protection is illegal.
Soon after he was sworn in as Chief Minister of Maharashtra last year, Devendra Fadnavis lost no time in announcing a zero-tolerance approach towards corruption, and declared that “prior sanctions” would be a thing of the past. Going ahead, he even promised to bring in a new law if it would help in cleaning up an administration sullied by corruption charges. However, the recent actions of his government indicate something entirely opposite.
Proposed amendments and their effect
On June 6, 2015, the Maharashtra cabinet decided to amend Sections 156(3) and 190 of the Code of Criminal Procedure (CrPC) which would severely curtail a magistrate‘s power to file complaints against corruption and get them investigated and prosecuted. The proposed amendments say that for taking cognizance of a private citizen’s complaint and directing an investigation, a magistrate would need to get a green signal from the government. The cabinet’s rationale was that high ranking civil servants, MLAs, policemen and elected members of panchayats were the frequent victims of motivated, malicious and false complaints of corruption, custodial torture and other illegalities. Investigation and prosecution of these charges were placing hurdles in government-decision making and functioning.
As per law, the police are bound to register an FIR and investigate, and in case they don’t, going by the constitution bench ruling in Lalita Kumari on 12 November 2013, they will be liable to face both administrative and criminal proceedings. Sections 156(3) and 190 further strengthen a citizen’s right – by providing that a magistrate can direct the police to lodge an FIR, or conduct a proper investigation.
The government has tried to give legal heft to its decision by citing the Supreme Court’s 1 October 2013 ruling in Anil Das, which held that a magistrate could neither take cognizance of a complaint nor direct an investigation without the government’s prior permission. But this ruling by a bench of two judges now stands invalidated because of the Lalita Kumari decision which was delivered a month later by a larger bench. It is significant to note that the Lalita Kumari judgement wasn’t limited to the registration of an FIR; it also held that a preliminary enquiry to verify the veracity of the allegations is a must in corruption cases.
Government fighting its own
In Maharashtra, the scenario of pending government sanction for prosecuting corruption cases resembles the Augean Stables. This is despite Fadnavis’s assurance to the Assembly on December 20 last year that he had personally ensured that no files were pending clearance.
As of April this year, the facts belie the CM’s claim – Maharashtra Anti-Corruption Bureau (ACB) data shows that there are 381 cases awaiting his nod so that timely and effective investigation can be carried out. Worse, a majority of them are against officials of the Home department, a portfolio Fadnavis manages himself. The police department, right now in the eye of a controversy because of top cop Rakesh Maria’s meeting with Lalit Modi in London, heads the list, with 100 cases out of the 381, 86 of those being against police officers. The Maharashtra Police already has a tainted track record of massive corruption by top officers in the stamp paper scam of 2003, and human rights violations through fake encounters and custodial torture. In March this year, it came to light, by way of an admission by Union Home Minister for State Kiren Rijiju that despite topping the torture chart for three years straight, not a single policeman has been chargesheeted. This neither augurs well for clean governance and accountable policing, nor does it reflect favourably upon Fadnavis’s repeated pronouncements on upholding public accountability.
But there is another battle, being waged in the Bombay High Court, which reveals this government’s unwillingness, even mendacity as far as curbing corruption is concerned.
On July 18 last year, the court admitted a PIL (No. 206/2014) filed by social activist Ankur Patil, challenging the constitutionality of a 1981 circular that required the ACB to mandatorily seek Home department sanction before probing any government servant accused of graft. Praveen Dixit, who heads the ACB, had requested R.R. Patil, the home minister in the previous government, to scrap this circular, but to no effect.
Relying on Fadnavis’s promises, one hoped that his government wouldn’t oppose its own anti-corruption agency. This hope is now crushed because the government is fighting the ACB in court and by way of an affidavit, insisting upon mandatory prior sanction. If that wasn’t enough, it has gone ahead and issued a circular, dated March 3, 2015, which extends the protective patronage to even Grade II and III government employees accused of indulging in bribery or other corrupt practices.
Now the government has suffered another jolt, with the ACB registering a complaint in a Rs 206-crore scam allegedly engineered by Women and Child Development Minister Pankaja Munde. Fadnavis has sprung to her support with alacrity, and has been quoted as saying that prima facie Munde appears to be in the clear. The demands of politics perhaps require Fadnavis to defend his minister, but surely it doesn’t restrict him from allowing the ACB to conduct an independent, fair and impartial probe as required by law?
Saurav divides his time between legal education and journalism, and between Bombay and Delhi.