Bad enactment, no enforcement

India’s approach in tackling the age-old problem of corruption has been Janus-faced. On the one hand, being responsive to public clamour for the eradication of corruption of all kinds, grand or petty, India’s Parliament has been steadily engaged in passing legislation, commencing with the extension of powers granted to the wartime Special Staff in 1942 till the enactment, in 2014, of the Lokpal and Lokayuktas Act. On the other hand, lawmakers, public servants and law enforcement agencies, who can count among their lot the vast majority of perpetrators of corruption, have been seeking loopholes in the law and avenues to avoid punishment. Political and administrative expediency, not principles of good governance and the rule of law, rule the roost, regardless of which set of political parties is in power.

CBI’s colonial antecedents

Even though the Indian Penal Code, which came into operation on January 1, 1862, defined the ‘public servant’ and identified offences that can be classified as ‘corruption’, the British Raj did not demonstrate any great anxiety about prosecuting its officials for abusing their authority and robbing the public. The onset of World War II forced the Government of India, the chief supporter of Britain’s war effort, to draw urgent attention to the different forms of corruption prevalent in the War Department. The War Resources Committee created, in April 1941, an outfit (called Special Staff) to investigate and check ‘bribery and corruption’ in various supplying departments.

When the war ended, emergency laws enacted during its duration lapsed. The Special Police Establishment (SPE) became the Delhi Special Police Establishment (DSPE) by an ordinance, followed by the Delhi Special Police Establishment Act, XXV of 1946, which still governs the operations of the Central Bureau of Investigation (CBI). The scope of the DSPE was expanded through a new Act of 1952 to cope with the new situation when new institutions and financial concerns arose and developmental activities expanded. The DPSE was empowered to investigate corruption in statutory corporations and entities administered directly or indirectly by the Union government.

In 1962, in the aftermath of a high profile corruption scandal (the Mundhra scandal) which led to the resignation of the then Finance Minister, T.T. Krishnamachari, in 1958, the Government appointed a committee under the chairmanship of K. Santhanam. In the first of its two reports, submitted in 1963, the Santhanam Committee recommended the creation of a Central Vigilance Commission headed by a Central Vigilance Commissioner (CVC) with considerable autonomy and status so as to consolidate the fragmented anti-corruption work that was being performed by the various ministries of the Union government. In April 1963, the government set up the CBI to investigate not only cases of bribery and corruption, but also violations of Central fiscal laws and serious crimes committed by organised gangs and thugs, besides collecting supporting intelligence, statistics of crime and conducting research to inform policy-making. The CBI drew its power of investigation from the Delhi Special Police Establishment Act, 1946. It has been reported that the DSPE Act will be again amended to enable selection of the CBI Director by a body which includes the leader of the largest Opposition party in the Lok Sabha (as there is no Leader of the Opposition now) and also to specifically state that vacancies on the selection panel should not vitiate the selection.

Offences by public servants

The CVC was accorded statutory status in 2003 only after a directive in the judgment of the Supreme Court in Vineet Narain v. Union of India. In September 2010, the CVC released the Draft National Anti-Corruption Strategy, a good document that deserves more attention than it has received. It contains a thoughtful critique of shortcomings in India’s legislative framework. The CVC Act 2003 gives the CVC powers to inquire into alleged offences committed by officials under the Prevention of Corruption Act, 1988. The CVC does not have direct powers to investigate and must depend on the CBI for that. The requirement of obtaining prior sanction of an appropriate authority before any court takes cognisance of an offence by a public servant is a serious limitation. There have been long delays before sanction is accorded. The provision serves to protect public servants though a wrong has been committed because the sanctioning authority is normally a senior officer of the “accused” officer. A sanction after having been accorded can be challenged at the trial stage and cases have been discharged on the basis that the sanctioning authority had not applied its mind while according sanction. This provision goes beyond the protection offered under the Code of Criminal Procedure, 1973 (which only protects actions in discharge of official duty).

It is desirable to remove prior sanction requirement in cases where a public servant officer is caught red-handed. A time limit should be prescribed for decisions sanctioning prosecution. However, the power of public servants in India is vast and strong. Instead of easing prior sanction requirements, an amendment Bill was tabled in Parliament in August 2013 which increases the protection of public servants from prosecution.

The Supreme Court had earlier struck down the “single directive” that had provided immunity to senior civil servants from suo motu action of the CBI. The government has restored this provision through statute and entrusted the authority of pre-inquiry scrutiny to the secretary of the administrative department. This has diluted the powers of superintendence of the CVC and the CBI. There is a system of dual control over the CBI — one exercised by the CVC in respect of corruption cases only, and the other by the Central government in respect of all its other work.

Administrative control of the CBI by the Central government makes it vulnerable to the criticism that the agency often compromises its corruption investigations of government officials. During the last decade, at least four former Directors of the agency have been given high-level government positions such as appointments as State Governors. There is criticism of the CBI’s highhandedness and a lack of sensitivity to a loss of reputation of senior members of the bureaucracy against whom it announced inquiries. There have also been selective leaks to the media of material gathered by the CBI in the course of investigation.

Lokpal and Lokayuktha

The Santhanam Committee, in effect, recommended that the CVC should also function as an ombudsman in India, taking cognisance of cases of maladministration as well as corruption. The Government of India ruled out accepting this recommendation claiming that the importance and urgency of providing machinery to look into the grievances of citizens against the administration and to ensure the just and fair exercise of administrative power would require a separate agency. But no such agency was created. It took a Gandhian-style movement led by Anna Hazare to put this matter back on the policy agenda of Parliament in 2011. During 2012, little was done with the Lokpal Bill except for the proceedings of the Rajya Sabha committee. The United Progressive Alliance (UPA) government, led by the Congress Party, meanwhile lost Assembly elections in Chhattisgarh, Delhi, Madhya Pradesh and Rajasthan, forcing it to yield ground on the Lokpal Bill, accept all amendments adopted by the Upper House, and pass the Bill on December 17, 2013. The Lokpal law came into force on January 16, 2014.

In brief, the Lokpal is empowered to investigate complaints against the Prime Minister, other ministers, current and former legislators, government employees, employees of firms funded or controlled by the Centre, societies and trusts that collect public money, receive funds from foreign sources, and have an income level above a certain threshold. Bodies creating endowments for or performing religious or charitable functions have been excluded from the Lokpal’s purview. Inquiries are to be completed within 60 days and investigation to be completed within six months. The Lokpal shall order a probe only after hearing the public servant. Inquiry against the Prime Minister has to be held in-camera and approved by two-thirds of a full bench of the Lokpal. The Lokpal will exercise superintendence over the CBI in relation to the cases referred by it. CBI officers investigating cases referred by the Lokpal can be transferred without its approval. The Lokpal can initiate prosecution through its prosecution wing before the special court. Lokpal-initiated trials are to be completed within two years. States are expected to set up Lokayuktas by law within 365 days and have the freedom to determine the powers and the functions of the Lokayukta.

In its twilight hour, when its days were ended, when according to Hegel, the owl of Minerva spreads her wings and wisdom dawns, the UPA government managed to enact legislation to partially protect whistle-blowers, but none of the other complementary laws, which India is obligated to pass after becoming party to the U.N. Convention Against Corruption, has been enacted. The present government does not seem to be in a hurry to constitute the Lokpal and enact those complementary anti-corruption laws, including the Judicial Standards and Accountability Bill, 2010, the Citizen’s Charter and Grievance Redressal Bill 2011, the Public Procurement Bill, 2012, the Prevention of Corruption (Amendment) Bill of 2013, and the Prevention of Bribery of Foreign Public Officials and Officials of Public International Organizations Bill, 2011. Maybe Prime Minister Narendra Modi is a modern-day Tacitus who claimed: “The more corrupt the state, the more laws.” Sadly, our lot seems to be both the non-enactment of essential legislation and the non-enforcement of laws we already have.

(R. Sudarshan, a Rhodes Scholar, is Dean and Professor, Jindal School of Government and Public Policy, Sonipat.)

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Printable version | Aug 14, 2020 7:15:07 PM | https://www.thehindu.com/opinion/lead/bad-enactment-no-enforcement/article6640407.ece

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