Removing ambiguities in graft law

Investigating agencies have tended to interpret the law in a narrow perspective. In turn, this has had an adverse impact on morale in the civilservice. In these circumstances, relief to a civil servant can come only from the court before whom he is arraigned.

May 02, 2015 02:25 am | Updated 03:40 am IST

R.K. Raghavan

R.K. Raghavan

Union Finance Minister Arun Jaitley struck the right note recently while speaking at the 16th D.P. Kohli memorial lecture organised by the Central Bureau of Investigation (CBI) on April 27 in New Delhi. D.P. Kohli was the founder director of the CBI who held office from April 1, 1963 to May 31, 1968. The CBI traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India. It became the Delhi Special Police Establishement and acquired its popular current name, the Central Bureau of Investigation through a Home Ministry resolution dated April 4, 1963. Kohli is rightly remembered as being a determined crusader against corruption.

One may not agree with all that Mr. Jaitley said at the lecture especially with regard to how an investigator somehow wants to make out a case against an accused, although the evidence marshalled by him did not justify it. He had said: “He [the investigator] follows the golden rule that if he gives a report that the accused is prima facie not guilty, then questions are going to be raised about him. Therefore, his golden rule is he must somehow make the case and it is the accused’s good luck that he gets a fair trial,” adding that this process has hindered the whole process of economic decision making. Mr. Jaitley further added that under such circumstances, decision-making becomes a game of passing the parcel. “Departments of purchase, defence and disinvestment have all suffered,” he said.

Hurdle in administration However, his views on the need to >revisit several provisions of the Prevention of Corruption Act (PC Act), 1988, cannot be ignored. His description of the fear psychosis that grips the bureaucracy is no exaggeration. It is real, I have heard about this and had this conveyed to me strongly by many friends in the civil service.

I agree that apprehension by civil servants of the consequences of taking a decision in a matter of public importance — especially one that involves huge expense to the public exchequer — has been a roadblock to proactive and positive administration. I highlight this especially at a time when the entire nation wants governments, both Central and State, to work fast and effectively. Ironically, fear is the hallmark of those more honest among civil servants than the ones who are venal and bereft of values. In this context, it should be remembered that there are instances where an honest civil servant makes a rank bad decision, not because of a lack of intelligence or inarticulation, but because of timidity and an inability to turn down unscrupulous, off-the-record directions from a political master. In cases like these, the official concerned has to be punished within government and not in courts, that too for lack of courage rather than of integrity. Unfortunately the law, as it exists, does not make a distinction between the reasonably honest yet pusillanimous government official and the dishonest one. It places both on a par. This is the crux of the matter with regard to a lack of integrity in the civil services.

> Read: Cabinet clears stronger anti-corruption Act

The reforms era I was struck by the distinction Mr. Jaitley drew between the pre- and post-1991 situation in government and its impact on anti-corruption investigations. In the second time frame, the civil servant at the higher levels had to take momentous decisions to fast track liberalisation and quicken the processes of a failing economy. Conventional and routine thinking had to be shed and bold courses of actions adopted to meet the dire needs of the country. Mr. Jaitley was on target when he said that the PC Act was totally unsuited for such a situation facing a nation that was trying to march ahead on the economic front. He said, “… the Act pre-dated 1991, when the economic reform process began. It was perceived in a regulatory framework when we were still more regulated. That Act has today to evolve. And the basis of the evolution is that when economic activity is being enlarged in the country, in any economic activity and decision-making there would always be new areas to charter out and quick decisions to be taken.”

Presumption of guilt Unfortunately, necessary changes to the law were not put in place and this failure to reform anti-corruption law had its impact on the pace of public administration and staff morale. Even now, the proposed amendments to the Act are excruciatingly slow in coming, although approved by the United Progressive Alliance (UPA) government more than a year ago. The information now is that the Union Cabinet has cleared the suggested changes and has improved upon the measures agreed upon by the UPA.

Section 13(1)(d)(iii) of the Act is generally looked upon as being the villain of the piece. Under this provision of law, the investigating agency has to prove that a civil servant whose conduct was in question took a decision which “obtains for any person any valuable thing or pecuniary advantage without any public interest” in order to proceed against him under the Act. There is a suggestion here of a presumption of guilt that can be drawn against the official in question. This, prima facie, is a negation of the English jurisprudence which we inherited and adopted. The overall perception generated by the stern wording of this subsection was that it was not necessary at all for the investigator to prove mens rea or dishonest intention to proceed against the civil servant being probed, and that an adverse presumption could be drawn straightaway against him. Section 20 of the Act, which deals with presumptions that can be drawn against an accused by the court, however refers only to clauses (a) and (b) of subsection (1) of Section 13 and not to clause (d)(iii) that punishes even an inadvertent act causing loss to government. Even so, as a rule of thumb, investigating agencies, both in the Centre and in the States, have, in the initial stages of an investigation and before obtaining legal opinion, tended to interpret the law in a very narrow perspective. In turn, this has had an adverse impact on civil servant morale. In these circumstances, relief to a civil servant can come only from the court before whom he/she is arraigned. For this, the civil servant should be lucky to get a knowledgeable judge and an objective public prosecutor — both of whom are now a vanishing tribe.

An amendment to the PC Act, which would delete this particular subsection (1)(d)(iii) of Section 13, has been on the anvil for quite some time. I am certain that there is political consensus that this harsh provision will have to go sooner than later. This move will greatly reduce misgivings in the civil service.

Rise of corruption

Naturally, Mr. Jaitley’s speech did not cover dishonest acts by government servants in routine decisions, such as assessment of income, granting exemptions from tax, purchase of material and award of contracts. The rise of corruption at the level of senior members of the bureaucracy, especially in revenue collection agencies, has been alarming. Many officers are guilty of blatant dishonesty, taking advantage of the enormous discretionary authority vested in them. The disease of corruption afflicts even those directly recruited through the All India competitive examination, and generally considered to be the cream of the civil services, and who have no justification to be even slightly dishonest. In a number of recent cases, a few who have not even completed five years of service, have been caught red handed for accepting bribes. It is not my case that the direct recruits into the other Services are angels. They have possibly less opportunity to indulge in wanton corruption.

Overall, this sad state of affairs calls for ruthless penal action in a court of law. The Supreme Court observed recently that the protection of the law, both under the Code of Criminal Procedure and the PC Act, in the form of a requirement of government sanction for criminal prosecution, will not apply to corrupt public servants. This is most welcome because the procedure for according government sanction for prosecuting a corrupt public servant is tortuous and time-consuming. In the past, this had helped to delay or even halt proceedings against influential senior officers in cahoots with dishonest Ministers. This ruling by the Supreme Court has to be taken seriously and used liberally in the future while handling requests from the CBI for such sanction.

In my view, an officer recruited to an All India Services and the Central Services — after a rigorous process of screening by the Union Public Service Commission (UPSC), who is then paid handsomely and who gets promotions on time in spite of uniformly mediocre performance — can commit mistakes. But he or she should never be dishonest. If we do not act decisively to stem the rot, we will only fall in the eyes of the world which wants to do business with us but will not because of the problems of dealing with a corrupt civil service.

(R.K. Raghavan is a former Director of the Central Bureau of Investigation, New Delhi.)

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