Impunity in Corruption Cases
Law Facilitates It
In less than
a year and a half, the UPA government’s credibility has been badly dented, with
major scams tumbling out of government’s cupboard with surprising
frequency. More than the scams, it is
the way they have been handled by the government that has damaged its
reputation. On the one hand, it has been
pusillanimous enough not to take the bull by its horns and stop it from
galloping at breakneck speed. On the other, it has been arrogant enough to
brazenly deny its own culpability, but succeeding only in scoring one self goal
after another, the biggest and the foulest being the appointment of Thomas as
Chief Vigilance Commissioner.
Rahul Gandhi keeps on talking
about bridging the gap between the rich and poor India, but prefers to remain
conspicuously silent on the subject of corruption. He probably does not realise that the most
important factor responsible for the big gap between the two is
corruption. As long as corruption
remains, a part of India and the major part will remain poor. Corruption, as
somebody has rightly said, is a tax on poor people. If he has realised, as his father did, that
not more than fifteen paise out of one rupee spent by the government for the
betterment of the poor really reach them, then he has to do something to ensure
this does not happen, instead of keeping his mouth closed and eyes blind. This ostrich like attitude,
remaining silent and inactive hoping that the storm will pass on its own, does
not help. In these days of right to
information and wide spread of competitive, investigative and judgmental media,
the facts are not easily suppressed; nor does the storm disappear early and
easily.
When denial of
its involvement in corruption is no longer possible, all that the government
does is to shift the guilty person from one position to another and then
proclaim that law will take its own course, which it invariably fails to do.
Law in most
cases fails to take its proper course, primarily due to three reasons. Firstly, the justice system is cumbersome,
dilatory and badly flawed. Secondly, the anti-corruption agencies do not
function effectively, particularly against rich or politically influential
people, as they have been badly politicised and rendered effete. Thirdly and it is this which is proposed to
be discussed here, law itself provides impunity and allows guilty to escape
unharmed.
The anti
corruption law has three main provisions that provide impunity. One requires government’s permission to
investigate; the other its sanction to prosecute and the third allows the
government to withdraw or close cases.
CBI is the
most prominent anti-corruption enforcement agency at the central level. Section 6 (A) of the Delhi Special Police Establishment Act, 1946,
which governs its functioning, mandates the CBI to obtain
prior sanction of the head of the ministry or department before undertaking any
inquiry or investigation against any officer of the rank of Joint Secretary and
above in the Central Government, including those in the public sector
undertakings and nationalised banks.
This is what in popular parlance is known as the Single
Directive, issued by the central government sometime in 1986. Without such sanction no inquiry, not even one
the CBI calls PE (Preliminary Enquiry) can be conducted. This provision was earlier a part of
executive instructions but it was given a statutory wrap by the Central
Vigilance Commission Act, 2003, despite the fact that the Supreme Court had
declared it null and void in the Hawala case judgement. The main objective of the Directive is to
protect the decision making level officers from the threat and ignominy of
malicious and vexatious inquires, so that they can take their decisions without
fear of being victimised. However, in a
large number of cases, this provision of law is used to provide impunity. The most recent case is that of a senior
officer of the National Highways Authority of India, where the CBI had to ask
the Cabinet Secretary to transfer him to his parent cadre when it was denied
permission by the Ministry of Road Transport and Highways to probe into
allegations of corruption made against him.
The other provision of law
that provides impunity is Section 19 of the Prevention of Corruption Act, 1988,
which requires the police agency to obtain sanction from the concerned
government before prosecuting public servants involved in corruption
cases. In many cases, there is considerable
delay in receiving sanction and in some it never comes. This had caused concern to the Supreme Court
too, which in the Havala case
judgment directed that the maximum limit of 3 months to grant sanction must be
strictly followed
This government is not
satisfied by providing impunity merely to serving officers; it has tried to
include even the retired public servants within the ambit of impunity
provisions of law. In 2008, it tried to
extend the scope of such provisions to former public servants by amending
Section 19 of the Prevention of
Corruption Act, 1988. Luckily, the
amendment was not ratified by the Rajya Sabha even though it had been cleared
by the Lok Sabha.
The need for prosecution
sanction and inordinate delays in
obtaining it is an important bottleneck in the effective functioning of anti
corruption agencies. This bottleneck not
only results in impeding their functioning but also in providing impunity to
accused persons and thus defeating justice.
Law not only prohibits
investigation and prosecution without government’s sanction; it provides a third protection. Even if prosecution is instituted, the
government can always withdraw the case with the permission of the court under
Section 321 of the Cr.P.C. The
government has occasionally used this provision too, the most prominent case
being of Captain Satish Sahrma, a senior Congress leader against whom CBI had
instituted cases pertaining to alleged irregularities in allotment of petrol
pumps and gas agencies during his tenure as Petroleum Minister between 1993 and
1996. The cases were later on closed.
The ostensible purpose
of all the these provisions of law is different from what they are often used
for. Amongst other steps the government must take to deal with the menace of
corruption, it must review the law that helps in providing impunity.
