SUPREME COURT’S JUDGEMENT ABOUT DIRECTOR CBI

Does Supreme Court’s Judgement Protect CBI’s Reputation?
                                                                   
The recent judgement of the Supreme Court, directing Ranjit Sinha to recuse himself from the 2G spectrum case, has evoked a mixed response.  While the order assures that the court will not allow the investigation of this important case to be compromised, it simultaneously refrains from explicitly stating detailed reasons for its order.  The idea of not doing so, in the words of the court, is twofold- to protect the faith in the institution and the reputation of the director. In reality, it does neither.
Over the last few years, we have heard enormous criticism of the way the CBI has been functioning, most of it coming not merely from the opposition parties but from the judiciary too.  The apex court did its first comprehensive examination of the organisation’s functioning in the Vineet Narain case in the nineties of the last century. In that case it pulled up the CBI for showing “inertia” to investigate offences involving influential persons and directed it “not to report the progress of the investigations to the person occupying the highest office in the political executive.”  The court also suggested institutional and other arrangements aimed at insulating the CBI from outside influences.

All this did not prove to be of much help as the government did not implement the judgement fully and honestly.  The CBI remained vulnerable to outside pressures and continued to face stringent criticism from the court in many cases for its biased functioning.  The court slammed the investigating agency for dilly dallying in disproportionate assets cases of Mayawati and Mulayam Singh during the last decade and more recently for dragging its feet in probing the 2G case and coal block allocations during 2006-09.  Ranjit Sinha was in charge of the CBI when the court called the agency a “caged parrot.”

In short, the reputation of the institution has been besmirched over a period of time and the conduct of Sinha in the present case tarnishes it further. The reticence of the court by withholding details produces two outcomes. One, it enables the director to brazen it out and remain glued to his chair. Two, it gives rise to an impression that there is considerable evidence of Sinha’s misdemeanors.  If it is revealed, it will hurt the credibility of the organisation and its director. By withholding information, the result achieved is the opposite of what the court wants.

The government too has been somewhat reluctant to take action. Though Sinha was appointed by UPA despite objections by the BJP, the silence of the ruling party during the few months when the diary at Sinha’s residence had become public knowledge is not understandable. The government always has powers to probe into suspected misbehavior and take disciplinary action.

Besides other rules and regulations, there is a Code of Behavior for police officers prescribed by the National Police Commission and accepted by the government.  Article 3 of this Code stipulates that no police officer shall conduct himself in such a manner as is “reasonably likely to bring discredit” to the “reputation of the police force or of the police service.” Ranjit Sinha’s conduct has definitely brought discredit to himself as well as to the organisation. There is no point in saying, as some retired directors of the CBI have done in the media that the court’s order brings only the chief of the agency into disrepute and not the organisation. The image of any establishment, particularly a hierarchical organisation like the police, is made or marred to a great extent by the policies, priorities and conduct of its chief.


While deliberating the coal scam status report, the apex court had said that their “first exercise will be to liberate CBI from political interference.”  This has not happened.  The government has always been reluctant to do this exercise earnestly.  Neither the UPA nor the present NDA has come out with any law or taken other measures that will make the CBI a professionally efficient and impartial organisation.  The danger is that this Ranjit Sinha episode may provide a handle to the government to further tighten its control over the investigating agency.  Arun Jaitley has already started talking of a “gap in law” that allows Ranjit Sinha to remain in chair and the government’s inability to do anything in this regard. The gap to which Jaitley is referring is contained in sub-section 4 B (i) of section 26 of the Central Vigilance Act of 2003, according to which Director, Delhi Special Police Establishment shall “continue to hold office for a period of not less than two years from the date on which he assumes office.” Mr. Jaitley does not talk about the other sub section of this section, which clearly suggests that the director can be transferred with the “previous consent of the Committee referred to in sub-section (1) of section 4A” This is the committee that recommends names to government for selection to the post of director. The government could have convened a meeting of this committee if it wanted to remove Sinha from his job.

Instead of using this judgement to strengthen its control over the CBI, the government as a part of its declared objective of providing good governance must take steps to make this premier investigating agency a professionally efficient, objective and impartial organisation.  The first step necessary for this purpose is to replace the antiquated and inadequate piece of legislation called the Delhi Special Police Establishment Act of 1946 that governs it presently with a law that enables it to function without fear or favour, while making it accountable for its performance and conduct.

COLONIAL STRUCTURE, FEUDAL VALUES

 The Kingly Abuse of Power in the Police

                       
The boast of J&K Deputy Inspector General’s son about his father being a “real king” because “last time he put his shoes himself was almost 15 years ago” has evoked angry reactions from many quarters.

This incident cannot be dismissed merely as a young man’s pompous and self satisfied response to how his father is enjoying the perks of his job.  This incident is painful because it reflects on an agonising reality that has to be accepted.

This reality has two parts.  One, the Dy I G, J & K is not the only one; there are many other ‘kings’ in  police forces in the country.  Only two years ago, a public interest litigation came up for hearing in the Punjab and Haryana High Court on October 11, 2012, according to which, an officer of the rank of Inspector General of Police of Vigilance Department was allegedly using as many as 31 police constables and head constables as “servants.”  The Punjab Government is reported to have conducted an inquiry on receiving notice from the High Court and then suspended the officer.  The orderly system exists and is often misused.

Two, the conditions under which the police constabulary work and live in this country are harsh, humiliating and oppressive. Their salaries are low; they do not have any fixed hours of work; their job is risky and stressful; family accommodation is not available to majority; they are constantly on the move and have very little to look forward to in terms of career advancement. While delivering the fourth Nani Palkhiwala Memorial lecture in Mumbai on October 5, 2009,  Mr. P. C Chidambaram, the then Union Home Minster said that the Police Constable, “who works for 12 to 14 hours a day throughout the year is the most abused” part of the machinery.  “Everyone believes that he can be bullied, or cajoled or bribed... he is the most reviled public servant.”  He further said that the “self-esteem of average policeman is very low … and this average Police Constable is a frontline force for the internal security.”

The lower ranks in the police complain that their self-esteem is affected by the behaviour of their officers.  There are two main grievances.  One, policemen posted at the residences of senior officers as orderlies are often required to attend to the personal chores of the seniors and their family members.  Two, the seniors’ treatment of the junior police officials is generally rough and rude.  Added to these is another important factor.  The general public also look down upon the police constable as a lowly creature. We have not given the policeman a status befitting his role in society.  The policeman has a low image and this leads to a low status, which in turn perpetuates that image.  Recently, there have been many incidents where lower ranked policemen have been abused and assaulted by politicians and  public.

 All these factors combine to lower the constabulary’s esteem in their own eyes and in the society’s. A policeman with low esteem cannot be a professionally efficient or a community friendly policeman.  As observed by the National Police Commission, the manner in which police personnel at lower levels behave towards public is largely conditioned by the manner in which they are themselves treated by their own higher officers within the force. In its Vth report, the Commission observed: “No amount of exhortation from the higher ranks calling for courteous behaviour towards the public would carry conviction with the subordinates if in day to day police work these subordinates are treated with scant courtesy and consideration by the supervisory levels within the police force.”

The managerial philosophy of the police is based on distrust of the lower ranks in the organisation.  In the pre- Independence days, the natives were not to be trusted.   The Police Act of 1861 used the words “inferior officers” for those occupying the lower ranks in the police. The phrase still exists in the form of Section 7 of the Police Act of 1861, which is titled “Appointment, dismissal etc. of inferior officers.” A distinction between seniors and juniors in a hierarchical force is always understandable, but to categorise a small minority of senior officers as superior and a large chunk of strength as inferior smacks of a set up that is authoritarian and of values that are feudal. A Police Act, which condemned a large chunk of its force as “inferior” could hardly be expected to build it up as a professional organisation.

Even after Independence, the mind set has not changed. We have retained the same management style after Independence. The gulf between the senior officers and lower ranks is still very wide.  As Mr. Ved Marwah, a senior retired police officer has mentioned: “Unfortunately, elitism within the superior ranks has only widened the gap between the field policemen and the supervising officers. The two inhabit very different worlds. A culture of distrust of the subordinate officer has developed over the years. This needs to change if the police are to be an accountable and professional force.”
In India, we have given ourselves a democratic structure of governance, but our values are highly feudal.  In so far as the police are concerned, they are exceedingly colonial in their structure as well as values.  This is one of the reasons why the police in this country have failed to develop self esteem and professional pride.

This article with some minor changes was published in the Indian Express dated November 1, 2014






 

SUPREME COURT’S JUDGEMENT ON ENCOUNTER KILLINGS

Supreme Court's Judgement on Encounter Killings- Will it Solve the Problem?

In its judgement in the case of People’s Union for Civil Liberties versus the State of Maharastra delivered on September 23, 2014, the apex court prescribed various guidelines to be followed in dealing with encounter killings.  

 As the judgement itself says, these guidelines are based mostly on what the NHRC had suggested in the past. Some of the prescribed requirements are that an encounter killing should be investigated by the CID or a police station other than the one where the incident has occurred.   A magisterial inquiry into all cases of death must be held under Section 176 Cr P C. Delinquent officers must be brought to book through prompt disciplinary action and prosecution.  No out of turn promotion or awards should be given unless the gallantry of the concerned officers is established beyond doubt.   In cases of death in police encounter, compensation to the family should be provided under section 357- A of the Cr P C.

Will these guidelines ensure that fake encounter deaths do not occur?  One does not feel very optimistic on this count for two reasons. One, they did not have the desired effect in the past.  The NHRC had issued these guidelines on two occasions- once in March 1999 and later in December 2003.  The NHRC data itself shows that the number of fake encounters has continued to rise.  According to information given by the Ministry of Home Affairs to the Parliament on August 4, 2009, as many as 346 fake encounter cases were registered by the NHRC during the three year period 2006 to July 09.  The NHRC report later chronicled 555 cases of alleged fake encounters in the country from April 1, 2009 till February 15, 2013.

Two, these guidelines become relevant after the encounter killing has taken place.  They do not address the basic question- why do such killings take place at all?

There are various reasons.  One is the support that the culture of encounters receives from different quarters.  No government or state can really claim to have a clean record.  As long as the incident remains hidden, neither the government nor the police department shows concern.  The hue and cry is raised only when the entire story comes out in public. It is the public scandal that offends; otherwise, to sin in secret is no sin at all.

It is not realized that the policy of fake encounters is wrong not only because it is contrary to law, but because it generally proves counter productive.  It does not solve the crime problem. You do not kill crime by killing criminals illegally.  What is worse is that this policy has the effect of criminalising the police force to an extent that they develop nexus with gangs and brutalising them to an extent that they do not hesitate to kill to get awards and promotions.

When controlling crime or dealing with law and order problems becomes important from political point of view, fake encounters get state encouragement and protection, with complete assurance of impunity granted in advance. Mostly, such assurance is implicit; but occasionally even clear directions are also given.  An example of this is the address given on April 30, 1998 by the then Chief Minister of UP Mr. Kalyan Singh.  The Chief Minister while addressing the state police officers at a law and order review meeting in Lucknow said: "I want performance, results. I want you to take a vow that you will create a dhamaka (explosion) in the state. If noted criminals can be liquidated in encounters, do it. If you take the life of one person who has taken the lives of 10 others, then people will praise you. And I am here to protect you."  The present Union Home Minister is also reported to have made such a call when he was the Chief Minister of UP in 2000. Fake encounters of terrorists in Punjab during the hey days of terrorism  were common and the central government knew about it, but deliberately overlooked how the police were trying to control the situation.

When Kalyan Singh said that people would praise the police if they followed his advice, he was not wide off the mark.  Fake encounters are sometimes supported by the public too, particularly when crime and violence increase in society and the system is seen as helpless and ineffective to provide a feeling of safety and security to the public.

An increase in crime and violence puts the police under tremendous pressures.  They are required to solve cases in quick time and when they fail to do so they are blamed by all.  Even if they succeed in solving cases and arresting the criminals, the judicial system is so tardy, cumbersome and inefficient that sometimes it fails to bring them to book. The public feel threatened and unsafe and the police feel beleaguered and harassed. This is when the fake encounter specialist takes charge and decides to tackle the problem his way- kill the criminals if you cannot kill crime.  The department in most cases is aware of what is happening.  As Mr. Julio Ribeiro has said: “A desperate leadership unwittingly leans on him to rid itself of public condemnation and criticism for not being able to tackle the criminals.”

The criminal justice administration has been one of the most neglected areas of governance in this country.  Price is being paid by citizens, not only in terms of increase in victimisation but also in terms of overall deterioration in the quality of life resulting from denial and delay in delivery of justice.
Besides effective implementation of Supreme Court’s guidelines, it is the functioning of the   criminal justice system that needs to be improved.  Once this happens, the number of encounter killings will come down.

ARMED FORCES SPECIAL POWERS ACT- NEED FOR RETHINKING

ARMED FORCES SPECIAL POWERS ACT- NEED FOR RETHINKING

The release of Irom Sharmila from custody and her subsequent arrest have again raised the issue whether the Armed Forces Special Powers Act of 1958 should continue to remain in areas like Manipur. The Chief Minister of J & K has been demanding for some time that his state, at least some parts of that province, can do without this special legislation. In Manipur, Irom Sharmila has been on hunger strike for the last fourteen years, asking for the repeal of this controversial and a definitely draconian law.

Neither the UPA nor the present government has paid any heed to these demands. What is so special about this law and why are all governments so reluctant to do away with this piece of legislation? The simple answer is that this law provides the authorities a short cut to assume certain repressive powers that are not normally available to them in a democratic society.

This law gives special powers to the commissioned as well as non commissioned officers of the armed forces to deal with law and order situation in an area, which has been notified by the central or state government as a “disturbed area.” Special powers include using force even to causing death; arresting people without warrant; destroying shelters, camps, structures, arms dumps etc and entering and searching premises without warrant. Neither this nor any other law defines what constitutes disturbed or dangerous area. It is thus left to the discretion of the concerned authorities to decide that the law and order situation in an area in a state has become disturbed or dangerous enough not only to call for the deployment of the army but even to confer some special authoritarian powers on them.
The Act was originally intended to be a short term measure, but it has remained in force for decades in states like Manipur. Despite tremendous public agitation in that state against this law, the central government has declined to repeal it, even though there is considerable evidence that it has led to gross violations of human rights in that area. A number of committees appointed from time to time, like Jeevan Reddy committee, Santosh Hegde Committee etc have clearly indicted the armed forces for gross violations of human rights of citizens in Manipur and recommended the repeal of this exceedingly harsh law.

An argument often given by the government, particularly the army, in support of retaining this law is that the Supreme Court upheld its constitutional validity in its judgement delivered in 1998 in Naga Peoples’ Movement of Human Rights vs. the Union of India case. A law may be constitutionally valid, but that is no guarantee against its misuse. Pathribal fake encounter case of March 2000 and the alleged rape and murder of Thangjam Manorama Devi, a 34-year-old Manipuri woman in 2004 by armed forces personnel, are only two of the many examples of such misuse.

Another argument that the army often makes is that the majority of complaints of human rights violations filed against them are false. The problem with this type of argument is that most complaints are investigated and tried by the army itself. The army has shown considerable reluctance to hand over such cases to the civil authorities or courts. It is only at the intervention
of higher courts that the army has been forced to hand over some cases to outside investigating agencies like the CBI.

The Act provides protection to armed forces’ personnel working under it, as no prosecution can be launched against them without sanction from the central government. The civil rights activists have often complained that it provides impunity to armed forces personnel. The argument is not very convincing as even if this provision is removed from the Act, members of the armed forces will continue to be covered by Section 197 of the Criminal Procedure Code that debars the courts from taking any cognizance of any offence alleged to have been committed by them without sanction from the central government.

The state police forces, particularly their armed components, occasionally complain that they face the initial burnt of law and order situation in disturbed areas or even insurgency, without getting the powers and protection that AFSPA provides to the central armed forces in such situations. This happens even in areas where armed forces of the union work in conjunction with the state law and order authorities. The state police forces feel that they are definitely at a disadvantage in such situations.

The central government has not only shown lack of will or courage to dispense with this Act, but even blocked full debate on this subject of enormous public concern by suppressing Justice Reddy’s report. Last year, the then union finance minister P Chidambaram was brazen enough to express the helplessness of his government to revoke the law because the army was not willing to do so. This is a country where the army is supposed to work under the civilian control and decisions like imposing or revoking a particular law have to be taken by the government and not by the army. Mr. Chidambaram should have found a less phony argument to explain the central government’s reluctance to withdraw the law.

The army has been deployed to deal with serious law and order situations in this country on numerous occasions. In most instances, it has successfully dealt with such problems without having the powers or protection of AFSPA. It is therefore time the government showed willingness to assess objectively the need to retain this law. It may consider keeping this law in operation in states affected by insurgency or terrorism, particularly when the trouble is emanating from across the border. However, it may revoke the law in areas that are comparatively peaceful. If the government can think of controlling Maoist violence in some areas of the country without invoking AFSPA, why can’t it do the same in areas like Manipur?

This article with some minor changes was published in the Indian Express dated August 26, 2014 under the heading " Rethinking Impunity"

POLICE ATTITUDES TOWARDS MINORITIES

POLICE ATTITUDES TOWARDS MINORITIES

The report prepared by the Directors General of Police on police attitudes towards minorities, summarised recently in the media, is timely and worthy of note.

Allegations that the police behave in a partisan manner against members of minority community are fairly common.  Various judicial inquiry commissions, the national police commission and the minority commission have cited several instances where the police have shown unmistakable bias against minority community while dealing with communal situations.

The constitution and laws provide to all citizens access to justice to right wrongs.  The access proves illusory if the enforcement mechanisms do not function impartially.  The police being the most visible arm of the state, loss of confidence on the part of minority community in its ability to function impartially leads to erosion of faith in the credentials of the state.  It has the effect of hardening the attitudes and sharpening the communal divide between the majority and minority communities.

The perception of the police as a communally biased agency by the minority community has thus grave overtones.  Once the state loses its credibility, the  feelings of insecurity amongst the minority community members gives rise to (i) militancy in the minority youth, (ii) faith in vigilantism and (iii) tendency to congregate and live together leading to ghettoisation with all its attendant ills.

Considering the serious implications of minority community’s lack of trust in the police force, it is extremely heartening to learn that the police have done this important exercise in self introspection and tried to accept and lay bare their own faults and failings which are responsible for creating distrust between them and the minority community members.

The DGPs report covers a fairly extensive ground.  Some important issues examined in the report include the impact of demolition of Babri Masjid, use of advances in information technology and social media by anti social elements in fomenting trouble, role of NGOs and activists in spreading distrust, demeanour of police personnel in communal riot situations and their insensitive behaviour, poor communication skills and lack of basic police knowledge of minority religious beliefs and practices.  The report goes beyond police work and behaviour and holds Lack of “social management skills” amongst  some other agencies of the government, like municipal corporations, housing, health and revenue departments and also corporate sector responsible for alienating the minority community members.

The report makes suggestions to improve relations with the minority community.  It suggests the need to improve basic police community interface at thana and district level, establishment and working of mohalla committees, policing to factor in religious sensitivities, encouraging sports activities amongst mixed teams, involving lower ranks in decision making in field matters. providing proper basic municipal amenities to minority community localities and intervention by law to provide proper housing and health to minority communities.

However, the DGPs report, though fairly comprehensive, does not cover some important substantive issues that explain the increasing perception of police force as communal.  To some extent, this perception is a reflection of the sharpening of the split between the communities on communal lines.  The forces of religious fundamentalism, racing aggressively across the country over the last few years and forcing the political parties to attach importance to communal issues and feelings, have succeeded in weakening the hold of secular values and ideals.  The religious and caste affiliations and feelings existing in our traditional society have been manipulated and exploited by politicians to create, retain and expand their vote banks. To expect the police to remain unaffected by the forces which are influencing the attitudes, values and behaviour of large sections of population with whom they interact closely in their day-to-day work is somewhat unrealistic.

The problem of police showing bias against members of minority community is associated not only with the increasing hold of communal forces over others in society, but with the erosion of authority of police as an agency of law that has occurred in this country over a period of time.  The philosophy of police neutrality is rooted in the concept of rule of law that has definitely been devalued.  If the police officers are posted in communally sensitive districts not on the basis of their secular credentials or their professionalism but by their caste or communal affiliations or by their pliability, police will to act impartially and courageously in conformity with law is bound to be weakened.  This was seen clearly during the recent communal riots in Muzaffarnagar, where cops, in that infamous sting operation, clearly admitted that they followed orders from their political bosses to go slow in curbing the violence.

The DGPs report, though a good beginning, avoids discussing the political environment in which the police deal with the problem of communal violence.  A lasting solution of the problem would require more than what the DGPs have discussed and suggested.  It would require establishment of statutory institutional arrangements that help in (i) insulating the police force against illegitimate influences, (ii) ensuring that appointments, postings, transfers and promotions are guided by merit and professional efficiency and honesty and not by  communal and caste considerations (iii)  denying impunity to anyone found negligent in doing his duty or guilty of committing crimes, and (iii) always holding accountable those who violate the rights, particularly the right to access justice, on grounds of colour or creed.

SINGLE DIRECTIVE SHOULD REMAIN BURIED

LET THE BUREAUCRATS HEAR THE SIGNATURE TUNE
       (A Rejoinder to Ms Shailaja Chandra’s article)

I read Ms Shailaja Chandra’s article “Day of the Sleuth” published in the Indian Express of May 9, 2014 with  interest as it dealt with an important subject.

The article is about the supreme court’s judgment quashing Section 6 (A) of the Delhi Special Police Establishment Act of 1946, which debarred the CBI from inquiring into any allegation of corruption involving an officer of the rank of Joint secretary and above, without the approval of  the central government.
The article has some factual errors and erroneous arguments.  It says the “judgment annuls the protective provisions that had been passed by Parliament, not once but twice —  not counting an ordinance which had lapsed mid-way.”  These provisions were incorporated in law only once- by the Central Vigilance Commission Act of 2003.   The Prevention of Corruption (Amendment) Bill of 2013, which tried to provide this protection to retired bureaucrats too, never went beyond the Rajya Sabha. 

Section 6 (A) embodied the executive directions popularly known as the Single Directive. After the Court declared the Directive null and void in the Havala case judgement, the government tried to bring it back by promulgating the Central Vigilance Commission Ordinance, 1998 on August 25, 1998.   This Ordinance did not lapse, but was amended by the Central Vigilance Commission (Amendment) Ordinance on Oct 27, 1998 because of the huge public outrage at the government’s attempt to subvert the Court’s judgment. The Amendment dropped the Single Directive clause.  The government then   introduced the Central Vigilance Commission Bill in the Lok Sabha on Dec 20, 1999. Though the original Bill did not have any clause about the Single Directive, it was included in the Act by the Joint Committee of the Parliament headed by Shri Sharad Pawar despite a strong dissenting note by a member of the Committee Shri Kuldip Nayar.

Ms Chandra says that under the Prevention of Corruption Act, a public servant can be prosecuted if a decision taken “results in pecuniary gain to private parties.”   There is no such provision in the Prevention of Corruption Act, 1988. 

Lets now come to the arguments.  The article makes an argument in the form of a question: “But how far can one expect corruption to diminish as the result of the removal of a discriminatory barrier..?” The barrier was removed by the Court not really to reduce corruption, but because it was discriminatory and also found to be “wholly subversive of independent investigation of culpable bureaucrats,” thereby striking “at the core of rule of law”.   Ms Chandra conveniently overlooks this important concern and frames the terms of debate wrongly.  She gives statistics from 2012 report of the Central Vigilance Commission to prove that one cannot expect much in terms of reducing corruption. According to these statistics,  the CVC received 37,000 complaints  in 2012, of which a fifth had to be closed because they were “anonymous”, “pseudonymous”, “vague” or “unverifiable”.  The conclusion drawn is that “a large number of complaints get generated but every complaint does not necessarily merit investigation.”  Correct, but the point is that the statistics cited in the article are not germane to the subject under discussion.  Its not the total number of complaints received by the CVC, but the number of complaints of corruption received by the CBI against senior officers of the rank of joint secretary and above and how they were dealt with, which are relevant.  Full statistics are not available, but para 1.9 of the CVC’s 2012 report does mention that CBI sought approval of the government to inquire into corruption allegations against officers of the rank of Joint Secretary and above in 27 cases.  Permission was granted in 20, while it was denied in 3 and was pending in 4 cases at the end of 2012.  The effects of seeking prior approval under Section 6 A were brought to court’s notice by the amicus curie in the case.  His contention that this provision of law “would mean leakages as well as breach of confidentiality and would be wholly destructive of an efficient investigation” was accepted by the court.

 Ms Chandra further argues that the fate of the Prevention of Corruption Act (Amendment) Bill, 2013 “has now become uncertain.” The fate of this Bill, which includes many other provisions besides Section 6 (A), remains what it was. Only the clause relating to this provision would become void if it is resurrected.

The argument that Section 6 A was necessary to protect the decision making level officers from the threat and ignominy of malicious and vexatious inquires, so that they could take their decisions without fear of being victimized, was considered and rejected  by the Supreme Court  in the Havala case as well as the  petition of Dr Subramanian Swamy.  In its   judgement under discussion, the Court observed that there was no material on record “ to suggest even remotely that during the period when the Single Directive was not in operation…., CBI harassed any senior government officer or investigated frivolous and vexatious complaints.” There was however considerable material on record to show that that there was a “criminal-bureaucratic-political nexus” which could always “block inquiry and investigation by CBI” by using section 6A. Ms Chandra’s fears that the judgement could result in “unbridled sleuthing of the decision-making process” are not founded on facts. As pointed out by the Court, this “high-pitched argument in justification of Section 6-A,…does not hold water.”

The Court finally concluded: “The signature tune in Vineet Narain is, ‘However high you may be, the law is above you.’. We reiterate the same. Section 6-A offends this signature tune and … Article 14 of the constitution.”
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The above was written in response to Ms Shailaja Chandra’s article “Day of the Sleuth” published in the Indian Express of May 9, 2014, which is reproduced below:

Day of the sleuth
By Shailaja Chandra

The Supreme Court has quashed Section 6A of the Delhi Special Police Establishment Act, which required prior sanction of the government before investigating corruption cases involving senior officers working under the Central government. It would be foolhardy for a former civil servant to join issue with the judgment. While humbly accepting the court’s logic, it is also important to foresee what is likely to happen because of the verdict.

Mainly, the constitutional bench found the prior sanction provisions in the impugned enactment to be discriminatory. It divided the bureaucracy into two sets of officers — senior and working under the Central government’s control and relatively junior officers working both under the Central and state governments. It notes: “All government officials have to be treated equally and have to face the same process of inquiry in graft cases… The status or position of a public servant does not qualify such public servant to be exempt from equal treatment. The decision making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the same process of inquiry and investigation.”

With that, the judgment annuls the protective provisions that had been passed by Parliament, not once but twice —  not counting an ordinance which had lapsed mid-way. But how far can one expect corruption to diminish as the result of the removal of a discriminatory barrier, even if one accepts that it treated public servants unequally? For that, one has to consider the magnitude of the problem as highlighted by the Central Vigilance Commission (CVC), a top corruption watchdog to which the Supreme Court itself was instrumental in according statutory status. The latest annual report available on the CVC’s website refers to over 37,000 complaints received in 2012 (including “carry forward” cases from earlier years). Of these, a fifth needed to be closed because they were “anonymous”, “pseudonymous”, “vague” or “unverifiable”. This demonstrates how a large number of complaints get generated but every complaint does not necessarily merit investigation. Until now, the complaints were being scrutinised by the three-man commission. But now that the need for prosecution sanction has been removed, it would be possible for the CBI to start investigating any complaint considered serious. Past experience belies the hope that this police organisation would be as clinical in its approach as the CVC.

In the same report, the CVC refers to cases where criminal proceedings were recommended at the first stage of giving advice. The CVC supported investigation in less than a third of the cases where the CBI had submitted reports. Surprisingly, and contrary to popular perception, the CVC finally recommended criminal action in just 2.6 per cent of the cases received from the CBI and the chief vigilance officers. An overwhelmingly large proportion — as high as 50 per cent of the total cases — were advised to be closed, which only demonstrates that a preliminary examination undertaken by a statutory body did not point to corruption. In 30 per cent of the cases, departmental action was ordered, which is as different from criminal prosecution as chalk is from cheese. In only a fifth of the cases were routine administrative actions like the issuance of a warning advised. So, unless the CBI has eyes at the back of its head, the scourge of corruption is not going to be eliminated simply by giving it unbridled investigative authority against senior government personnel.

The second question to consider is the fate of the Prevention of Corruption Act (Amendment) Bill, 2013, which was introduced in the Rajya Sabha in August 2013. Since it was initiated in the Upper House of Parliament, the amendment bill cannot lapse even with the dissolution of the 15th Lok Sabha. This bill retains provisions for prior sanction for investigating serving officers and seeks to widen the ambit to protect retired public officials, too. Members of Parliament carry no brief for civil servants and when the amendment bill was introduced in the Rajya Sabha, it was referred to a parliamentary standing committee, which gave its recommendations. Ten members of the Upper House and 20 members of the Lower House gave their recommendations after interacting with a large pool of knowledgeable and experienced organisations. These included representatives from state governments, managements of banks, ports, petroleum and lignite corporations, select NGOs, chambers of commerce and industry, the central vigilance commissioner, the CBI and the director, enforcement, to name just some. The fate of this comprehensive bill has now become uncertain.

It is also important to look at how the bulk of the complaints are generated. Wherever large financial considerations are involved, public servants are required to list the risks and benefits of preferring certain strategies over others. There are two stated goals behind such decision-making: higher growth and improving overall development. Invariably, the private sector is a key partner in most endeavours. Whether it relates to tax rationalisation, revision of duties and fees, disinvestment or disposal of public assets, incentivising competitiveness, selecting a concessionaire or the build-operate-transfer route, someone has to gain but many necessarily have to lose. Under the Prevention of Corruption Act, a public servant can be prosecuted if she has taken a decision “that results in pecuniary gain to private parties”. In the process of economic decision-making, private parties are bound to benefit. Yet, it is normal for a string of complaints to be generated as soon as the decision is made public. Because of a spate of corruption cases, which are at various stages of prosecution, officers have already begun to shrink from decision-making. It has now to be seen how much the May 6 judgment will further hobble their approach.

This article is not intended to defend dishonest civil servants. While equality before law is fundamental, the need to build institutions is also vital. The biggest fallout of a correct and well-intentioned judgment could be unbridled sleuthing of the decision-making process that is the hallmark of governance.

The writer is a former secretary to the government of India and former chief secretary, Delhi
express@expressindia.com

APPOINTMENT OF ADDITIONAL DIRECTOR, CBI

APPOINTMENT OF ADDITIONAL DIRECTOR, CBI

The UPA II government has a penchant for creating unnecessary controversies regarding appointments to top posts in important institutions. Earlier, the government had to cut a very sorry figure in the Supreme Court when they appointed P. J. Thomas in the office of the Chief Vigilance Commissioner, despite strong opposition by the leader of the opposition. More recently, they again insisted on having their man P.P. Rao as the fifth member on the selection panel of the anti-graft body Lokpal, forcing Sushma Swaraj to take up the matter with the President of India. There is no similarity between the two cases, as P P Rao is an eminent jurist, with a well earned reputation. However, because of an extremely poor record of this government in dealing with corruption, public tend to look upon government’s appointments to such crucial posts with a suspicious eye. They think the government generally tries to plant its own pliable officers in important posts.

Following on the heels of the decision to appoint P. P. Rao comes the controversy surrounding the appointment to the post of Additional Director, CBI. This time, the government is at loggerheads not with the leader of the opposition but with the Central Vigilance Commission. The Commission recommended an officer for appointment to this post; the government chose a different person.

Appointments to posts above the rank of Superintendent of Police in the CBI have to be governed by the provisions of law as laid down in the CVC Act of 2003, which amended relevant sections of the the Delhi Special Police Establishment Act of 1946. The Act sets up a Committee, with the Central Vigilance Commissioner as the head, Vigilance Commissioners and Secretary, MHA and Secretary (Coordination and Public Grievances) in the Cabinet Secretariat as members to recommend appointments to senior posts in the CBI. The person recommended by this Committee for appointment to the senior post in the CBI was not acceptable to the government. The PMO has defended the government’s decision on two grounds:

1. The Committee’s decisions are not binding on the government, as they are merely recommendatory in nature. The government was within its rights to reject the person recommended by the CVC. The government seems to be right in this regard as Section 4 C (2) of the Delhi Special Police Establishment Act, 1946 clearly authorises the government to “pass such orders as it thinks fit” on the recommendation made by the Committee. The matter, however, is not as simple as it appears. There are other points that are equally important. One, it is not the government but the CVC that exercises superintendence over anti corruption work of the CBI. The Additional Director in CBI deals mainly with that type of work. The Commission is therefore expected to have a better understanding of the requirements of the post and the person who would be more suitable for the assignment. Two, very senior representatives of the central government in the form of Secretary, MHA and a Secretary of the Cabinet Secretariat are members of the selection committee. They are also a party to the recommendation made by the selection committee headed by the CVC. It more or less amounts to saying that one part of the government is willing to suggest one person for the post while the other part of the government in the form of PMO is anxious to appoint some other person. Three, the legal provision that sets up a committee to select names for a senior post in the CBI is an important statutory step to cut down the government’s discretion in such cases. The government should not give an impression that it can circumvent such provisions by sticking to a highly legal interpretation of their powers.

2. The other ground on which the government has justified its selection is that of seniority. The person appointed by them is senior to the name recommended by the CVC. Seniority is an important but not a necessary condition to make such decisions. There are innumerable examples where seniority was given a go by when appointments to important posts were made by the government. To give only one example relating to police, the government appointed Y.S Dadwal a couple of years ago as Delhi Police Commissioner, disregarding his senior colleague Smt Kiran Bedi.

All types of interpretations are being discussed in the media about the rejection of CVC’s recommendation. When such views are aired in the public, it embitters not only personal relationships but also sends a wrong signal down the line in the police department. The police being a hierarchical organization, it is important that the image of the top leadership in the service is not impaired. When an impression, rightly or wrongly, gains ground that a particular appointment is due more to lobbying than to merit and the government does nothing to remove that idea, the rank and file as well as the public may not repose full confidence in the senior officers’ability to come up to their expectations.

Reluctance on the part of the government to explain their decision is due to the feeling that it is their prerogative to make appointments to the top posts. This may be true, but then simultaneously, it is the citizens’ right in a democratic set up to know why the government has taken a particular decision. Appointment to a senior post in CBI is as important for the public as it is for the government. If a senior officer, who has been selected by a high powered committee set up by law for such purpose, has been disregarded for the post, the aggrieved person as well as the public must know the reasons for rejection.