In order to curb corruption in public service, including in the judiciary, the procedure that can now halt swift cognisance needs to be changed through legislative means.
There are very few people in India who believe that New Delhi, as it is presently organised, is either capable or willing to go the whole distance to bring to book those who are suspected of having committed irregularities in handling state funds. This has particular reference to the scams related to the 2G spectrum and the conduct of the Commonwealth Games. The much-talked-about action plan to tackle corruption on a war footing appears to be a non-starter, going by the fact that there has not been even a whisper about it over the last few days. Even if such a plan is to be grudgingly unveiled soon, it could at best be old wine in a new bottle.
Two officials handpicked by the UPA government are under the scanner. They are the Chairman of the National Human Rights Commission (NHRC) and the Central Vigilance Commissioner (CVC). There are no direct allegations against the former. But his close relatives are being investigated. Such a probe will first have to prove that they acquired assets in a wrongful manner, and which they cannot account for. Only then can the allegations be taken forward to probe whether their proximity to the NHRC Chairman when he was the Chief Justice of India gave them any advantage in the matter, as has been alleged.
This will be a long-drawn-out process. There is everything in the procedure established by law and convention that can halt swift cognisance being taken of judicial corruption. This fact spells unmitigated danger to the whole polity. You could imagine how a lowly official in the bureaucracy would feel about this travesty. Actually he would be able to rationalise any corrupt conduct thus: if people in high places could indulge in large-scale corruption and get away with it, why could he not emulate them, hoping that he would not get caught either?
Was it not the former CVC, N. Vittal, who said that corruption in India was a low-risk and high-profit activity? How appropriate are those words in the context of the alarming decline in India's public life, where good people shun public office and the rapacious ones swarm around it with great relish!
Another official who is in deep trouble is the present CVC. By all accounts P.J. Thomas was a distinguished civil servant with a good record of service once upon a time — at least till he was made Telecommunications Secretary under Minister A. Raja. He was a candidate with some merit when he was considered for the CVC's position.
But he had two problems. It was widely alleged that while filing an affidavit before the court when the issue became contentious, he had deliberately justified whatever Mr. Raja did in the matter of allotting spectrum. Despite the fact that the allotment took place before Mr. Thomas became Secretary to the Ministry, there was a feeling that he took little note of the wrongful actions and even justified them. The allegation, therefore, is that he was made CVC only to whitewash the monumental scandal. Then there was the palmolein import case in Kerala in which he was cited as an accused.
So, when his name was proposed, surprisingly, by the government for the CVC's job, the BJP smelled a rat and opposed the move tooth and nail. The Leader of the Opposition, Sushma Swaraj, refused to endorse the choice but, strangely, the government went ahead with the appointment, even ignoring the fact that Mr. Thomas was facing a criminal trial in Kerala.
Now Mr. Thomas is an albatross around the government's neck. There is speculation over why he is sticking on to his post even after the subsequent development of his trial in the palmolein import case being cleared by the Supreme Court of India following the death of the prime accused in the case. The lurking suspicion is that Mr. Thomas' nomination was made under political pressure. It is not illogical to believe that there is again a political hand behind his decision to stay on. If that be so, it is a clear indication that corruption among public servants in India is fostered by political parties. Against this setting, the common man can very well forget the prospect of ever having an honest government.
There are three specific issues that are of utmost relevance to this debate. The first is already engaging the Supreme Court's attention. The so-called Single Directive of the Union government that requires an investigating agency to obtain government approval before proceeding against a civil servant of and above the rank of Joint Secretary has many holes, including a negation of equality before the law. There is also the definite risk of a delinquent civil servant getting advance notice of proposed action, which could facilitate his destroying or secreting out valuable documentary evidence. After this directive was struck down in the ‘hawala case,' the National Democratic Alliance government, in a dubious move, revived it and gave it legislative backing — possibly at the instance of some top bureaucrats. It constitutes an untenable fetter put on the Central Bureau of Investigation. The agency is even otherwise weighed down by an unsupportive government and a hostile group of influential bureaucrats who have the ears of the Ministers.
The next issue of importance is the monitoring by courts of investigations in crucial cases such as that concerning the spectrum scandal. There is a point of view — aired with great clarity by the former CBI Director, C.V. Narasimhan, known for his sharp mind and utter integrity — that for such monitoring to be effective, the Supreme Court could consider entrusting the arduous task of overseeing progress to a small group.
This group should comprise a former High Court Judge, a former Joint Director of the CBI and an expert from the area of economic crime belonging to one of the revenue services of the government. This group could report to the Supreme Court from time to time, thereby helping the court to come to its own conclusions without losing valuable time. This experiment can possibly be tried, first in the 2G spectrum case, and its utility evaluated.
Another suggestion from Mr. Narasimhan relates to the framing of a law by the Central government titled the ‘Criminal Misconduct of Public Men.' It should incorporate all the offences that come under the ambit of the Prevention of Corruption Act, 1988, but give more powers to the investigating officer. These powers should include competence to record signed statements from witnesses and confessions that are valid in law, both of which are now prohibited by the Code of Criminal Procedure (CrPC) and the Indian Evidence Act respectively. This will be on the lines of pieces of legislation such as the Maharashtra Control of Organised Crime Act, 1999 (MOCOCA), which relatively frees the investigator from the curbs imposed by the Evidence Act. These suggestions made by Mr. Narasimhan could go a long way to tackle corruption by public servants with greater speed and certainty.
The third problem relates to how governments could be prevented from misusing the authority to block appeals against acquittals. Instances are legion where a government that is interested in protecting a favourite, applies the guillotine and successfully stalls further proceedings in court. This is done by denying a request from the investigating agency to take an acquittal on appeal. The CrPC arms the government with such power, and it is often blatantly abused. There is a definite need to divest governments of this undeserved power. For this to happen, all political parties need to come together to bring about an amendment to the CrPC.
In the present situation, there is little hope of such a consensus emerging. This is because, at present, there are no saints in politics when it comes to battling corruption, and softness towards corruption cuts across party lines. India's best bet ultimately are its citizens, who will resolve not to submit to demands for illegal gratification on the part of any public servant, or vote for the corrupt leaders of the land in the general elections.
(The author is a former Director of the Central Bureau of Investigation.)