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Amended anti-graft law a challenge for probe agencies

A blanket protection shield for all bureaucrats at inquiry level has been brought in by NDA govt.

, ET Bureau|
Last Updated: Jul 26, 2018, 08.45 AM IST
Anti-graft body
While bureaucrats welcome change, agencies feel new provision may compromise secrecy of probes and all the time will be spent awaiting govt nod
The changes approved by Parliament to the country’s 30-year-old anti-corruption laws have brought cheer to the bureaucracy while making life much tougher for investigating agencies that would now need the government’s nod before initiating a probe against or even questioning any bureaucrat, experts said.

“CBI (Central Bureau of Investigation) will spend all its time running to the government for nods,” a former CBI Director said.

“This is far worse a situation than the erstwhile ‘single directive’ 6A provision, which made it mandatory for CBI to seek prior sanction from government before probes against officers of joint secretary level and above. That section was declared void by the Supreme Court in 2015,” the person told ET on condition of anonymity. “Now, after the new Section 17A in the amended Prevention of Corruption Act, CBI will need such permission for probes against all level of bureaucrats,” he explained.

Another former CBI director said the new provision may also compromise secrecy of probes.

CBI had in fact opposed this provision before a select committee of Parliament in 2016 saying “it may cause unnecessary delay in investigation”, according to a copy of the select committee report.

Senior retired bureaucrats like Amitabh Kant and Anil Swarup have, meanwhile, welcomed the changes in the law.

Kant said Section 17A brings in a much-needed layer of due diligence while Swarup said the changes will prevent undue harassment of honest officers and fasten decision making.

This blanket protection shield for all bureaucrats at inquiry level has been brought in by the BJP-led National Democratic Alliance (NDA) government and was not part of the original Prevention of Corruption (Amendment) Bill brought by the previous United Progressive Alliance (UPA) government to Parliament in 2013.

The 2013 bill had only asked for provisions of Section 6A to be extended to retired officials of joint secretary level and above besides serving officials.

A standing committee of Parliament in a report in February 2014 proposed dropping the changes to Section 6A altogether as the section had been challenged before the Supreme Court.

In May, 2014, the top court declared Section 6A void in law, saying it “impedes tracking down corrupt senior bureaucrats as without previous approval of the central government, CBI cannot even hold preliminary inquiry much less an investigation into the allegations”.

“The protection in Section 6A has propensity of shielding the corrupt,” then Chief Justice R M Lodha ruled in his order. “CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations,” he had said.

CBI had got full immunity hence to proceed with an inquiry against any government official and only approach the government for permission before filing a charge sheet.

Section 17A first appeared in a modified amendment bill brought by the NDA government in 2015. It proposed that the still-to-be-formed Lokpal at the Centre and Lokayuktas in states be given power to approve initiation of inquiries and probes against all serving and retired bureaucrats.

That was not the final word, though. A select committee of Parliament in 2016 recommended that this power of prior approval for inquiry be given to the government instead of Lokpal/Lokayukta. It argued that giving this power to Lokpal/Lokayukta may be ultra vires of Article 311 of Constitution and it was felt that disciplinary/appointing authority in the government should retain the power to grant sanction as that authority is well-versed with the functioning and conduct of his/her employee.

The Prevention of Corruption (Amendment) Bill brought by BJP government this year effected this change.

CBI would now need prior sanction from government at two stages – inquiry and prosecution – in respect of all bureaucrats.

“CBI has its work cut out to put up a strong case before government at stage of inquiry itself, when the evidence is generally weak and needs corroboration,” a former CBI official said. “Also, the secrecy of probes will be a question,” the person told ET.
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