The three-month deadline set by the Supreme Court for grant of sanction to prosecute corrupt officials is a step forward, but why not do away with prior sanction altogether?
Coming just a day after the sensational arrest of the Andhra Pradesh Home Secretary, the apex court directive that the sanction for prosecuting a public servant under the Prevention of Corruption Act 1988 should come within three months of a request from an investigation agency is a shot in the arm for all those standing for probity in public life. Also welcome is the ruling that every citizen has a fundamental right to file a complaint under the PC Act. This could trigger a massive number of frivolous complaints. But it is for the courts to sift the genuine from the flippant.
Impact on CBI
In respect of sanction for prosecution, an extra month is now available to the government if the Attorney-General's opinion is required in any particular case. It is rarely that the official is approached in such matters. Hence the three-month time limit is the one that would apply in most of the cases. The CBI should be particularly elated at this historic verdict. I know that the agency had been frustrated many a time by successive governments holding on to a request without passing any orders or by raising a few inane questions to the CBI to delay the whole process and to help a favourite civil servant in the docks, who was not only personally dishonest but was a man ‘who knew too much'! Tuesday's direction to the Executive makes severe inroads into its discretion and capacity to protect corrupt elements in government.
A question allied to the apex court decision is whether the Executive enjoys absolute authority to refuse or accord sanction. It is very well known that in some cases sanction is denied on grounds which, on the face of them, may appear solid and reasonable, but are in fact dubious and an exercise to protect a culpable public servant. Fortunately, such refusals are few and far between. There is, nevertheless, scope for arbitrariness and favouritism in the matter. This is especially at the level of State governments. A few Governors had in the past been complicit in the matter purely for political considerations. The major point here is whether such decisions by either a State government or a Governor are beyond judicial review. I know courts cannot go beyond satisfying themselves that the due process of law and rules of business of governments had been observed. They cannot see through the judicial microscope and check whether an impugned order is in harmony with facts arduously ferreted out by an efficient anti-corruption agency. This is the serious lacuna in the drive against corruption. A dishonest public servant can and will be protected by a government that used him in dishonest adventures.
For instance, in the arrest of the A.P. Secretary, there is no information as yet that he enriched himself in selling government land at a shockingly low price. It is just possible that he had been coerced into a decision, which, he may have felt, was dubious, but had no option except going with a ministerial diktat to sign on the dotted line. In such cases, how can you expect the State government later on to accord sanction for prosecution once the investigating agency finds him culpable? If the Home Secretary in question had been guilty of looking the other way — even if he had not made any money — he would still be liable under the PC Act 1988 for having caused a loss to the government. There is here no need to prove mens rea on his part. Things are as draconian as that. If in spite of this, senior civil servants — both in the IAS and the IPS — aid the political executive in acts of dishonesty, they will have to blame themselves and none else.
On the Lokpal
There is a tendentious report today that the proposed Lokpal Bill had in fact already sought to do away with the legal requirement for sanction for prosecuting a public servant. If I remember right, this is only half-truth. The draft Bill had done away with such a requirement only in respect of the few cases that had been vetted by the Lokpal. In all other cases, viz., those investigated by the CBI, sanction was still required. This needs to be clarified by the Central government. In any case, when the Lokpal Bill does see the light of day, public opinion should prevail upon the Lok Sabha that the requirement for government sanction should be dispensed with. Only this would take the fight against corruption one step further in the right direction.
(The writer is a former CBI Director.)