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Updated: February 1, 2012 01:25 IST

Ninety days too many

R. K. Raghavan
Comment (5)   ·   print   ·   T  T  
An April 2011 picture of CBI officials with the charge sheet in the 2G Spectrum Case, at the Patalia House Court, New Delhi. Photo: Sandeep Saxena
The Hindu An April 2011 picture of CBI officials with the charge sheet in the 2G Spectrum Case, at the Patalia House Court, New Delhi. Photo: Sandeep Saxena

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.)

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No doubt, the article is an eye opener.But there is a point which
has not been talked about. Why should an IAS OR IPS officer budge
under pressure from the minister or ministry? He should stick to
rules,his conscience ,integrity and honesty and refuse to budge.It
is possible that he too is corrupt, but uses the fig leaf of
pressure from the top.It is hard to believe that all civil servants
are innocent and the politicians only are corrupt.As a matter of
fact no politician can flout the rules for undue benefit with out
the connivance of the concerned officer/officers.More often than not
the dishonest officers are the ones suggesting the safe path for
corruption to the politician.

from:  Raju varghese
Posted on: Feb 4, 2012 at 10:06 IST

We have archaic laws, that favour the mighty, rich & corrupt. If we are all equal before the eyes of the law (as the constitution says), why do we need the government's "permission" (read "sanction") to
prosecute a wrong doer? We all know to what extent the tentacles of corruption have spread, in India. That said, how many rich and mighty persons have been punished under the law? The only ones to go to prison are the lowly clerks, and junior government servants, for whom no permission is needed to prosecute and punish. We also know that the law is used to protect the corrupt from facing jail time. No party in power has ever spoken about repealing this law. We need a alert society, active judiciary, to spearhead a movement to do this. We need to let our "elected rulers" to know that they, & other powerful government servants, are not above the law. If this can't happen, we are living in a sham democracy, where we are not all equal.

from:  Mohan Narayanan
Posted on: Feb 1, 2012 at 18:44 IST

It is high time that ex CBI chiefs come out in open and explain Indian
public how they were pressurised by ministers to protect the corrupt. It
will be a patriotic gesture if these people talk the truth in their life
time and go to heaven if they believe in nirvana.....

from:  Chandrakant Marathe
Posted on: Feb 1, 2012 at 12:02 IST

Thank you Mr Raghavan for another excellent article, this time explaining the implications of the landmark SC judgement yesterday: "a man ‘who [knows] too much'... can and will be protected by a government that used him in dishonest adventures", "government sanction [to prosecute PARTNERS-IN-CRIME] should be dispensed with." As the politicians often say, "let the due process of law take its course", now. I salute Mr Raghavan and The Hindu, both true patriots!

from:  D Mahapatra
Posted on: Feb 1, 2012 at 08:52 IST

The time has come for good men to cease talking and take initiatives and action in whatever way possible. Dr Subramaniam Swamy is a good example. This is my sincere comment.- We as a nation have talked too long. Even patience and hope have limits.

from:  Anand
Posted on: Feb 1, 2012 at 06:23 IST
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