Prof. Upendra Buxi calls bureaucracy in India “the most imperious arm of the government. The Civil Servants very often consider citizens as subjects while the Supreme Court has been trying to assiduously to assert the rights and aspirations of the citizens”. It’s time that in several cases the Supreme Court has come down heavily on civil servants for being tainted. A case in point is of Sri P.J. Thomas who was approved by the President to hold the office of Chief Vigilance Commissioner. Sri P.J. Thomas was facing a CBI inquiry, involving import of Palmolein oil showing favour to a firm. As he was one of the charged officers the court was of the view that he could not be appointed as CVC just because of fulfilling the sheer eligibility criteria. The court considered CVC as an “integrity institution” and CJI S.H. Kapadia was emphatic “that the head of an institution to examine corruption charges against others must be above all suspicion and taint”.
The Parliament has now passed a legislation amending the Prevention of Corruption Act 1988, with the ostensible objective to protect honest Civil Servants from the roving eyes of the CBI. However, activists like Yogendra Narayan believe that it will further weaken the existing weak anticorruption architecture and the proposed Whistleblower Legislation. It would be, therefore, worthwhile to look at the proposed amendments, particularly to Section 13(1) (d) of the PCA Act. This section tries to protect public servants from the ambit of allegations like of indirect benefits, raises the threshold of proof and makes bribe taker and bribe giver equally punishable.
Public memory is too fresh to recount a number of scams that took place in the previous UPA regime viz. the 2G Scam, Common Wealth Game and the Coal Scam. The C&AG reports severely indicted them; Supreme Court ordered fresh allocation of coal blocks and spectrum based on competitive bidding. Sri P.C. Parakh who was part of the decision making of coal block allocation has written in his book “Crusader or Conspirator” how he had recorded on file that there should be open competitive bidding for coal block allocation, which was overturned by the then Minister of State Coal, Sri D.N. Rao. When Mr. Parakh was interrogated by the CBI, he has accused the CBI for selectively targeting him, by not including the name of the then Prime Minister, Dr. Manmohan Singh, who had dealt with the case as the Coal Minister.
In a recent case involving engagement of agents and payment of gratification to politician in the AgustaWestland helicopter case, the Air Chief Marshal S.P. Tyagi was sent to judicial custody through a CBI charge sheet. ACM Tyagi has alleged that the charge sheet is selective, as it does not include names of Ministry of Defence, National Security Advisor and the Prime Minister’s office who were involved in finalization of deal. The most recent case involves Shri L.K. Advani and others who were let off by the High Court in the Babri Masjid demolition case. But the CBI has challenged the decision in the Supreme Court, opening a can of worms. The CBI indeed has the dubious reputation of selective targeting based on prodding of the party in power.
The proposed legislation has the potential to shield corrupt officials, as the sanction for prosecution by the CBI has to be given by the Minister in Charge. It may be recalled that when the government tried to amend Section 6A of Delhi Police Establishment Act 1946 for protecting officers of the level of Joint Secretary and above. It was struck down by the Supreme Court as being discriminatory. The Chief Justice R.M. Lodha had observed that “The proposed section on the face of it is not valid. It grants absolute protection to corrupt officers from prosecution”. The Shah Commission (1978), inquiring into the emergency excesses, had observed that most IAS officers who are the cream of the system “often collapse at the slightest pressure. Loyalty to party in power in order to advance their career is rampant”.
The Second Administrative Reforms Commission had advocated for deletion of Article 311 of the Constitution which provides undue immunity to the Civil Servants for dismissal, removal or reduction in rank in the event of major allegation of corruption, misconduct or malfeasance. The Commission has observed that nowhere in the world there is any provision to protect officer’s charged with corruption as Article 311 provides for. However this recommendation is yet to be given effect to and many corrupt officers continue to remain in position due to long winded disciplinary proceedings.
Under the NDA government there was a proposal to bring in the Whistleblowers Bill 2015 by diluting the earlier Whistleblower Bill of 2011. The case of Satyendra Dubey who was killed by the mafia in the national highway projects case is still fresh in memory. It is lamentable to note that the new bill seeks to dilute the role of the whistleblower by providing for imprisonment under the guise of national security which can be extremely vague. For genuine whistleblowers to be effective, they must be given protection by the government.
For Max Weber, bureaucracy is rule based, hierarchical, merit based, and politically neutral. It must be mentioned to the credit of some of the civil servants that they have acted apolitical and proffered professional advice as Weber would have liked. Dr. Madhav Godbole, who was the Home Secretary in 1992, had recommended to the Cabinet Committee that Article 356 should be invoked in UP to protect the disputed Babri Masjid from potential destruction by Hindu fundamentalists. There was a valid apprehension that the Kalyan Singh’s BJP government would not protect the disputed site, as they were ideologically aligned to the VHP activists. However, his advice was overlooked and the then Prime Minister, Mr. Narasimha Rao looked the other way when the secular fabric of India was irreversibly dented. Dr. Godbole’s book “Unfinished Innings” (1996) provides a vivid account of this sordid in India’s democratic history.
The proposed amendment to the Prevention of Corruption Act would make the political bureaucratic nexus stronger as they would look for post retirement jobs like Governor, Ambassador, CAG by currying favour with the party in power. Thus effective investigation by the CBI into serious corruption charges would be scuttled. Further, there is an urgent need to bring in a Constitutional amendment to make the CBI a constitutional authority like C&AG & CEC so that he functions without political interference. The sobriquet of “caged parrot”, as the Supreme Court called it, has been besmirching the reputation of this professional body constantly. The present Bill provides a needless shield to the corrupt under the subterfuge of honest decision making and dilutes the process of accountability of civil servants in a democratic system further.
The author teaches Constitutional law
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Views expressed are personal.