Decoding the SC verdict on investigations against bureaucrats

The Supreme Court’s Monday verdict on whether or not the central government’s prior approval is needed before investigating top bureaucrats has brought to centre stage a consistent practice by successive governments since 1969 to put in place a safety net for their bureaucrats — and also of the top court’s unwavering scrutiny of the way this has been done repeatedly.

- Utkarsh Anand

On Monday, a Constitution bench led by justice Sanjay Kishan Kaul ruled that the court’s 2014 ruling that revoked the immunity to senior officers booked by the Central Bureau of Investigation (CBI) in corruption cases between September 2003 and May 2014 “will have retrospective operation”, effectively meaning that such public servants can be prosecuted without government approval.

The ruling by the bench, which also comprised justices Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari, clarified a 2014 judgment by another five-judge bench that scrapped Section 6A of the Delhi Special Police Establishment (DSPE) Act, inserted in September 2003 to mandate prior sanction of the government before initiating prosecutions.

Notably, after the 2014 judgment, the Centre revived the immunity shield of public servants by making an amendment to the Prevention of Corruption (PC) Act in July 2018. This amendment is presently under challenge before the top court.

The history of the government’s endeavours to shield officers from the threat and ignominy of investigations, malicious or otherwise, and the apex court’s scrutiny of these moves throws up a curious tale of pulls back and forth in the last five decades.

Single Directive of 1969

Before insertion of Section 6A in the DSPE Act, the requirement to obtain prior approval of the central government was contained in a directive known as “Single Directive” issued by the government. In 1969, the Centre issued the Single Directive, which was a consolidated set of instructions issued to CBI by various ministries and departments regarding modalities of initiating an inquiry or registering a case against certain categories of civil servants.