Opinion Sins of permission

This will certainly empower the CBI to pursue cases more effectively, and speed up investigations. So far, the prior sanction clause had meant that the government could withhold a decision, and the investigative agency often had to wait for officials to retire before they could be questioned. But instead of fixing a timeline for government decisions, after which the sanction would be assumed to have been given, the court has simply done away with that prerogative.

It will arguably be easier now to extract answers in open and shut cases of bribery. But there are some dangers, too, in the removal of this section, given that CBI functioning itself is far from perfect. While the court’s prod had pushed the government to begin reform and consider changes like splitting the agency’s investigation and prosecution wings, choosing the directors through a collegium etc, while keeping it accountable to the elected executive, these changes have not materialised yet. The CBI’s recent decision to quiz officials and industrialists on the coal allocation process has been widely questioned, given the absence of reasonable justification.

Many have warned of the dangers of police agencies leaping to guesses about wrongdoing in complex, multi-faceted policy matters. Criminal prosecution should be based on intention and culpability, not honest judgement calls that turn out to be wrong. Mala fide policy decisions of the government can be contested by judicial review, but overzealous investigators can cramp decision-making, and encourage officials to cover their tracks, rather than bringing about greater accountability. The risk-aversion of civil servants has a direct impact on economic growth. The consequences of this order, in other words, now depend on the sobriety of the CBI’s investigative approach, its understanding of governmental discretion, and the consequences of rashly putting public servants in the dock.