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
(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.”
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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
