Maybe,the 5-judge bench which gave the judgement should be asked to consider revising their judgement and should be asked to refer the issue to a Full Constitutional Bench for deliberation and to afford protection to honest civil servants from irresponsible, malafide graft probes, keeping in view the imperative of ensuring that the steel frame stays focused on the service of the citizens of the nation.
Kalyanaraman
Day of the sleuth
May 9, 2014 2:07 amSUMMARY
Stripping senior bureaucracy of protection in graft probes may have unintended results.
The CVC supported investigation in less than a third of the cases where the CBI had submitted reports.
By Shailaja Chandra
The Supreme Court has quashed Section 6A of the Delhi Special Police Establishment Act, which required prior sanction of the government before investigating corruption cases involving senior officers working under the Central government. It would be foolhardy for a former civil servant to join issue with the judgment. While humbly accepting the court’s logic, it is also important to foresee what is likely to happen because of the verdict.
Mainly, the constitutional bench found the prior sanction provisions in the impugned enactment to be discriminatory. It divided the bureaucracy into two sets of officers — senior and working under the Central government’s control and relatively junior officers working both under the Central and state governments. It notes: “All government officials have to be treated equally and have to face the same process of inquiry in graft cases… The status or position of a public servant does not qualify such public servant to be exempt from equal treatment. The decision making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the same process of inquiry and investigation.”
With that, the judgment annuls the protective provisions that had been passed by Parliament, not once but twice — not counting an ordinance which had lapsed mid-way. But how far can one expect corruption to diminish as the result of the removal of a discriminatory barrier, even if one accepts that it treated public servants unequally? For that, one has to consider the magnitude of the problem as highlighted by the Central Vigilance Commission (CVC), a top corruption watchdog to which the Supreme Court itself was instrumental in according statutory status. The latest annual report available on the CVC’s website refers to over 37,000 complaints received in 2012 (including “carry forward” cases from earlier years). Of these, a fifth needed to be closed because they were “anonymous”, “pseudonymous”, “vague” or “unverifiable”. This demonstrates how a large number of complaints get generated but every complaint does not necessarily merit investigation. Until now, the complaints were being scrutinised by the three-man commission. But now that the need for prosecution sanction has been removed, it would be possible for the CBI to start investigating any complaint considered serious. Past experience belies the hope that this police organisation would be as clinical in its approach as the CVC.
In the same report, the CVC refers to cases where criminal proceedings were recommended at the first stage of giving advice. The CVC supported investigation in less than a third of the cases where the CBI had submitted reports. Surprisingly, and contrary to popular perception, the CVC finally recommended criminal action in just 2.6 per cent of the cases received from the CBI and the chief vigilance officers. An overwhelmingly large proportion — as high as 50 per cent of the total cases — were advised to be closed, which only demonstrates that a preliminary examination undertaken by a statutory body did not point to corruption. In 30 per cent of the cases, departmental action was ordered, which is as different from criminal prosecution as chalk is from cheese. In only a fifth of the cases were routine administrative actions like the issuance of a warning advised. So, unless the CBI has eyes at the back of its head, the scourge of corruption is not going to be eliminated simply by giving it unbridled investigative authority against senior government personnel.
The second question to consider is the fate of the Prevention of Corruption Act (Amendment) Bill, 2013, which was introduced in the Rajya Sabha in August 2013. Since it was initiated in the Upper House of Parliament, the amendment bill cannot lapse even with the dissolution of the 15th Lok Sabha. This bill retains provisions for prior sanction for investigating serving officers and seeks to widen the ambit to protect retired public officials, too. Members of Parliament carry no brief for civil servants and when the amendment bill was introduced in the Rajya Sabha, it was referred to a parliamentary standing committee, which gave its recommendations. Ten members of the Upper House and 20 members of the Lower House gave their recommendations after interacting with a large pool of knowledgeable and experienced organisations. These included representatives from state governments, managements of banks, ports, petroleum and lignite corporations, select NGOs, chambers of commerce and industry, the central vigilance commissioner, the CBI and the director, enforcement, to name just some. The fate of this comprehensive bill has now become uncertain.
It is also important to look at how the bulk of the complaints are generated. Wherever large financial considerations are involved, public servants are required to list the risks and benefits of preferring certain strategies over others. There are two stated goals behind such decision-making: higher growth and improving overall development. Invariably, the private sector is a key partner in most endeavours.
Whether it relates to tax rationalisation, revision of duties and fees, disinvestment or disposal of public assets, incentivising competitiveness, selecting a concessionaire or the build-operate-transfer route, someone has to gain but many necessarily have to lose. Under the Prevention of Corruption Act, a public servant can be prosecuted if she has taken a decision “that results in pecuniary gain to private parties”. In the process of economic decision-making, private parties are bound to benefit. Yet, it is normal for a string of complaints to be generated as soon as the decision is made public. Because of a spate of corruption cases, which are at various stages of prosecution, officers have already begun to shrink from decision-making. It has now to be seen how much the May 6 judgment will further hobble their approach.
This article is not intended to defend dishonest civil servants. While equality before law is fundamental, the need to build institutions is also vital. The biggest fallout of a correct and well-intentioned judgment could be unbridled sleuthing of the decision-making process that is the hallmark of governance.
The writer is a former secretary to the government of India and former chief secretary, Delhi
express@expressindia.com
http://indianexpress.com/article/opinion/columns/day-of-the-sleuth/Rajiv Gandhi’s legacy crumbles, Supreme Court quashes appalling law
The poor Nehru-Gandhi family is having a terrible week. In the last few days, the new-found star in the family, Priyanka Vadra, was thundering and fulminating about the “insults” that Narendra Modi had allegedly heaped on her late father. In her tirade, she also accused Modi of insulting the great legacy that Rajiv Gandhi had supposedly bestowed on our country. As soon as she took a break from her inflammatory oratory and her decibels went down a few notches, the Supreme Court pronounced its landmark judgment that overturned and overruled one of Rajiv’s most tainted gifts to our country.
On the May 6, 2014, the Supreme Court struck down Rajiv Gandhi’s ‘Single Directive’ that had promised to have gone down in infamy as one of the worst decisions he had taken in his brief stint as the country’s Prime Minister. Admittedly, Rajiv baba had also done some other pretty awful things, starting with the Shah Bano episode and the ban on ‘Satanic Verses’. However, nothing embodied his warped sense of governance and ethics as the Single Directive. By a simple administrative fiat, Rajiv and his cronies ensured that civil servants in the Central Government above a certain rank (Joint Secretary) were given blanket protection against all legal action by the CBI against their crimes, offences and misdemeanours. It never struck these bunch of self-seeking oligarchs that this ‘legal’ device was an outright assault on the country’s Constitution and its democratic fabric.
It would be worthwhile to reproduce the essence of the Single Directive. It was a consolidated set of instructions issued to the Central Bureau of Investigation (CBI) by various Ministries/Departments regarding modalities of initiating an inquiry or investigating a case against certain category of civil servants. The line of demarcation in the Single Directive, as is well-known, was the rank of Joint Secretary and above in the Central Government. Babus of this rank and above were covered by the largesse of the Single Directive and thereby enjoyed almost blanket immunity against their offences.
The Single Directive was quashed by the Supreme Court in the famous Vineet Narain judgment delivered on the December 18, 1997 (Vineet Narain & Ors. v.Union of India & Anr. (1998) 1 SCC 226). Within a few months after this landmark decision by the Supreme Court, the Union Government sought to re-introduce the Single Directive through the Central Vigilance Commission Ordinance 1998, dated August 25, 1998. Section 6-A was sought to be cleverly inserted in the law, whereby the previous approval of the Central Vigilance Commission was made obligatory, before investigation could be initiated against Central Government officers of the level of Joint Secretary and above.
The Supreme Court had to intervene again. Thanks to this, the provision for prior permission was deleted by promulgating another Ordinance on October 27, 1998. However, the chicanery of the Indian establishment did not stop. How could it? There was too much at stake here for the babus and the netas, whose gravy train had been temporarily derailed by the Supreme Court and a single intrepid citizen, Vineet Narain. The Central Vigilance Commission Act, 2003, was quietly railroaded through the Parliament and became law on the September 12, 2003. This flawed and colourable law contained Section 26(c), through which Section 6-A was inserted in the Delhi Special Police Establishment Act, 1946 (for short, ‘the DSPE Act’), that governs the working of the CBI. The impugned Section 6-A again introduced the stipulation of prior approval of the Central Government before any investigation or inquiry could be started against officers of the rank of Joint Secretary and above.
The country and its governance movement were back to square one. This entire rigmarole could have been interpreted as children playing a Lego game, unless matters of such vital importance had not been involved. It must be stressed that the country lived without the Single Directive from the date of the Vineet Narain judgment on December 18, 1997 till September 12, 2003, except for a period of two months from August 25, 1998 till October 27, 1998, when the Ordinance was in effect, as mentioned earlier.
However, the bureaucrats and their political masters had not factored in the presence of the indefatigable crusader, Subramanian Swamy and others like the Centre for Public Interest Litigation (CPIL). Swamy’s petition against this venality was filed in the Supreme Court and so was that of the CPIL. The two cases were tagged and, after the customary procedural delays in the judicial system, they came up for hearing on February 4, 2005. The Bench felt that the issue was of great importance and ought to be heard by a larger Constitutional Bench of five Judges. While making the reference, the first Bench made significant observations about the principles and legal issues that had been raised by Subramanian Swamy and the CPIL.
For nine long years, the petitions languished in the Supreme Court, until the Bench of five Judges pronounced their seminal verdict on May 6. It is now necessary to sum up the basic points of the judgment in non-specialist language. The most important factor that weighed in the mind of the Court was that the Single Directive, as embodied in Section 6-A of the DSPE Act, violated Article 14 of the Constitution and, therefore, could not be allowed to stay on the statutes. The readers will be aware that Article 14 is one of the bedrocks of the principle of Republicanism that our Constitution enshrines. What this Article provides is equality before law to every person and the equal protection of the laws “within the territory of India”. What the judgment basically says is that the Single Directive squarely trampled upon Article 14 because it treated some individuals as members of a privileged category, not subject to the same legal provisions that governed others. The charade of senior babus being the sole arbiters of whether one of their own tribe would be investigated or not (for presumed violation of anti-corruption laws) has come to an inglorious end.
The Central Government had vociferously argued before the Court that the protection conferred by the Single Directive was absolutely necessary for senior government functionaries to take decisions without “fear or favour” and not worry about steps they have adopted that might lead to frivolous legal action against them in the future. Theamicus curiae (friend of the Court) Anil Divan, who had been appointed by the Court, strenuously and cogently argued against this line of reasoning that was being advanced by the Union of India’s law officers like the Solicitor General. The Court, ultimately, came down clearly on the side of Divan, Swamy and the CPIL. In stentorian language, the Bench observed: “Can there be sound differentiation between corrupt public servants based on their status? Surely not, because irrespective of their status or position, corrupt public servants are corrupters of public power. The corrupt public servants, whether high or low, are birds of the same feather and must be confronted with the process of investigation and inquiry equally.”
Thus, ended a saga of monstrous governance by the country’s elite, led by a political dispensation that was venal and intellectually corrupt beyond measure. I would have liked to fire my salvos only against the Congress gang, because they are the prime culprits. However, some dates and periods recorded in this sordid episode do not shower any glory on the NDA lot either. It was the Vajpayee regime that introduced and passed the infamous CVC Act in 2003. What were the senior members of the NDA regime doing when this skulduggery was being perpetrated?
In an earlier essay in this forum, in October 2013, I had suggested an action plan for Narendra Modi and his Government if they come to power in the next few weeks. One of the major decisions that I had urged him and his future Government to take was to abrogate the Single Directive. Well, the Supreme Court has beaten him to this, but any future Government must attend to the other critical issues of governance like Section 197 of the Criminal Procedure Code and the infamous Veeraswami judgment of the Supreme Court in 1991.
Till then, may I suggest that all conscientious citizens of the country join me as I doff my hat to Subramanian Swamy, Vineet Narain, Anil Divan and the CPIL, who have been courageous and dedicated warriors in taking our Republic forward to meaningful governance!
http://www.niticentral.com/2014/05/09/rajiv-gandhis-legacy-crumbles-supreme-court-quashes-appalling-law-221654.html