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.
I have often wondered why there exists a compulsive need in our society to display oneself and one’s family as always being on top of the world. Why is it necessary to make known, howsoever subtly that one has achieved more than one’s peers? Why is there a societal need to conceal failures — lost jobs, broken marriages, wayward children, financial difficulties, and career and post-retirement frustrations? Why is there a societal obligation and an internal pressure to conform, to compare, to judge and to comment on the performance of others, while suppressing what is murky in one’s own world?
Increasingly the world is looking for ways of admitting the truth, be it in viewing relationships at the level of the individual or the relationship of large multinationals with their clients. That being so, there is a need to think differently about so-called successes and achievements and to take a look at how efforts are being made elsewhere to face the truth and build a climate of trust.
Recently I was asked by a French television company that had been conducting thousands of interviews around the world to participate in an impromptu interview. First I saw the preview. It could be a farmer in Cambodia, a scarfed Sudanese student, a French grandfather or a Swiss fisherman. All the interviews were recorded straight into the camera and the questions were extremely basic but actually seeking answers to what people across the world were asking to be told. Because no one had ever asked these questions of me and because I was certain none of my friends and acquaintances would ever see the photo exhibition, I found myself opening up to a complete stranger and the camera.
The questions went like this: What is your earliest memory? What does family mean to you? Which was the happiest day in your life? Which was the saddest day in your life? What is the meaning of love for you? Did you feel inferior to your husband when you were working? Did you feel superior? Is there someone you have never forgiven in life? Do you feel that your life has been happier than your parents’?
The idea of such video-based interviews was to capture what people actually thought and how they responded when asked personal questions when the mask was down. Unexpectedly I found myself answering what I would never have admitted, face to face. Because all of us are conditioned to fall into stereo-types and wear a mask of contentedness before the outside world; because there is societal pressure to exhibit success by society’s standards of success. And because I knew I was not being judged by viewers across the globe, and there was little likelihood that anyone in India would ever see my responses, I spoke from the heart and truthfully.
And soon thereafter another unrelated but relevant experience came my way. I was a part of a conference on Re-Introducing Integrity and Trust in Business held at the Asian Plateau at Panchgani. Again I heard a constant plea to shun the mask that businesses don in the quest for winning the battle to lose the war. The managing director of Siemens, Mr Armin Bruck and Mr JJ Irani from the House of Tata shared the dilemmas that had beset their companies and laid bare examples of how success pegged to unethical practices was ultimately a disgrace to the company and no success at all. Attended by participants from Japan and a few other countries the underlying theme stressed the need to stop judging success by man-made standards and instead nurture more trustful relationships. Because in the ultimate analysis ethical principles lead to responsible business — companies that respect not just shareholders but a wider world of stakeholders. In the long run, adherence to principles was shown to have earned respect and better business.
The conference highlighted how in 75 countries covering over 2,50,000 employees, the strength of ethical culture was being reassessed. ‘Tone at the top’ openness of communication, whether unethical behaviour was addressed quickly and fairly, comfort levels in speaking up had become the new benchmarks to judge the integrity quotient of companies-not cutting corners for quick profit making.
In this it was important to understand what misconduct in business included. Harassment, inappropriate behaviour, fraud, stealing company property, accounting irregularities and business information violations were higher across Asia than overall in the world. On the other hand Asian countries fared better than the rest of the world when it came to aspects like avoiding conflict of interest, following health and safety policies, avoiding alcohol and drug abuse and insider trading. So there were cultural differences in attitudes to conducting business which ultimately stood rooted in individual behaviour.
It is evident that there is now an effort both at the individual and collective level to respect frankness and truth over subterfuge. It will take decades if not centuries for this ethos to percolate into politics. But in everyday life it is possible to salute honesty and integrity when we see it. Only then can these attributes get the nourishment they need to grow and spread.
The current system of endless procedural delay in deciding whether a Government employee has violated rules or indulged in corrupt practices ensures that the guilty are never punished. Often honest employees are needlessly harassed. We need a new system
If anything infuriates citizens, it is the absence of accountability among Government employees. Confronted with examples of this almost everyday, it is assumed that corruption within the system allows wrong-doers to get away. The real reason is because the disciplinary rules that govern the conduct of Government servants require impossibly long and cumbersome procedures to be observed, in the name of natural justice, leaving loopholes galore. The result: Not even a fraction of those that deserve punishments ever get penalised; instead a number of honest officers get stigmatised by remaining under investigation for years together. A simple, sensible and fair system of dealing with misconduct is badly needed.
The second Administrative Reforms Commission lamented that “dilatory disciplinary proceedings make a mockery of any attempt to instill discipline and accountability”. But the Commission instead of suggesting a workable alternative capable of immediate adoption grandiloquently recommended the repeal of Article 311 of the Constitution; also adding a new legislation under Article 309 to its wish-list.
First the history: Sardar Patel independent India’s first Home Minister favoured giving civil servants protection to enable them to be frank and impartial. So Article 311(which embargoes the dismissal, removal or reduction in rank of a Government employee without enquiry) came into being and has remained in the Constitution ever since. The ARC felt that the protection given by the offending Article had bred a false sense of security and given excessive protection to Government servants. Hence the recommendation that Article 311 be repealed — a step which was not attempted even during Emergency when the Article was amended to provide for specific situations when an enquiry could be dispensed with.
The recommendation to repeal Article 311 is just hot air. First there is the implausibility of Opposition parties ever unifying to pass a constitutional amendment and that when it is clearly anti-sarkari mulaazim. Second, the amendment process would require the co-operation of State Governments in respect of the All-India services which will never come. Third, the possibility that the repeal of Article 311 might be seen as an attempt to alter the basic structure of the Constitution (shades of Keshavanand Bharti) cannot be ruled out. Besides it is no one’s case that an enquiry should not be held at all. That would be untenable in a democracy and would straightaway militate against the principles of natural justice.
Instead, the ARC should have suggested urgent modification in the existing disciplinary rules. These rules notified in 1965 draw their authority from Article 309 of the Constitution and not Article 311. It is there that change is needed. If there is one thing that terrifies Government employees it is the fear of getting caught in the web of a vigilance enquiry — a predicament which by itself is worse than being penalised. It suspends the official’s chances of getting promoted or posted in a position of significance for years together — decades in several cases. The situation has a catastrophic effect on the social standing of the officer, distresses his family, and worst of all, it deters him and numerous others from displaying any initiative — ‘better safe than sorry’ as the saying goes.
But the more dangerous fallout of the vigilance enquiry phobia is the proliferation of the committee culture. Files and decisions move higher and higher up the hierarchy and in the process the purchase of essential equipment critically needed for defence, infrastructure needs, and health gets deferred, often causing irretrievable harm to our preparedness on vital fronts.
An overhaul of the CCS CCA Rules 1965 is, therefore, urgently required. Since the Rules draw their strength from Article 309 of the Constitution and not Article 311, the modifications can be effected straightaway through an executive order; as neither Parliament nor State Governments can or will impede the process.
All enquiries should start with the issue of a written chargesheet, and proceed to the consideration of the charged officer’s response before an interview board, (this is the system in the UK and has been mentioned by ARC also.) The present judicial kind of enquiry should only be preferred if at the end of the meeting the interview panel feels that the facts and officer’s defence points to something serious, which could result in dismissal, removal from service or reduction in rank.
For all other cases, the finding of the panel on the culpability of the officer or his exoneration as also the quantum of punishment to be meted out should be final — allowing one appeal where the appellate authority would have powers to mitigate, but also to enhance the punishment, if warranted.
By bringing in a new set of disciplinary rules under Article 309, the Government can change the way its officers perform. It would boost the morale of honest officers and restore lost initiative. Prompt punishment if given to a few will immediately instill a fear of wrong-doing and a respect for discipline-attributes which have become anachronisms in our feudal systems. When the upright can be dangled as criminals while culpable courtiers can get rewarded, where is the encouragement to demonstrate probity in public life?
A 77-year-old man is on bail for something that transpired 27 years ago! And he is not alone, there are many others like him. His story highlights the need for speedy disposal of cases and a fresh look at the manner in which investigations are conducted in our country
Last week I met a venerable gentleman, a retired railway officer — 77 years old to be precise, who said to me “I’m on bail.” I thought I had misheard but felt embarrassed to ask him to repeat the word “bail”. But I had heard right. He was on bail for something that transpired 27 years ago. The facts made a sad story: The investigation had started in 1988 — six years after the “misconduct” and five years after the man’s retirement. His crime was to have forwarded a Government letter “for processing” where money making was not alleged against him. The investigation took four years by which time it was 1992. The chargesheet was filed three years later, in 1995; the court took cognisance of the case after another three years in 1998. It is now the year 2010 and the matter is before the court for the last 11 years, where a decision is yet to be taken on whether or not prosecution sanction was necessary, for an act committed in the discharge of official duty, 27 years ago.
As I looked at my companion’s wisened face and tired eyes I felt a sense of abhorrence and anger at a system which could permit this farce to go on. The merits of the case did not interest me, but the possibility that a case could be started five years after a man’s retirement and could continue for more than 22 years thereafter, with no end in sight, stunned me.
What then are the facts about investigations by CBI and their disposal by the courts? A glance through the CBI’s latest annual report gives information which is quantitatively impressive but qualitatively disturbing. The CBI has three distinct divisions, one for anti-corruption, one for economic offences and the third for investigation of special crimes which include terrorism, bomb blasts, sensational murders and the underworld mafia. The anti-corruption division handles three quarters of the cases.
The conviction rate of CBI cases is a respectable 66 per cent. But the picture changes if one looks at the disposal by the courts. In 2008 there were over 9,000 CBI cases pending in court of which three quarters related to corruption cases. With the CBI registering around 900 cases in a year and the courts disposing off around 600, this backlog, far from abating, is mounting. My old man’s case would be one among those 9,000 pending cases and as cynics say, such cases will automatically get resolved when the individual eventually dies in the struggle.
Several systemic changes are taking place in CBI and evidently many heads are at work to improve the organisation’s professionalism and output. But unlike most organisations that are regularly combed through by watchdog committees and commissions, CBI seems to remain insulated from objective external oversight. It is strange that the Administrative Reforms Commission was precluded from suggesting reforms in the CBI, when this should have been a fundamental term of reference for the ARC. Apparently, some other commission was to look into CBI’s working, but if anything has been started or completed it is not widely known.
As an interested bystander and a person who has seen the functioning of the anti-corruption branch of the Government of Delhi during my career, (and CBI’s anti-corruption division is only a superior version of the same thing,) my suggestions hinge on the following premise: Since all CBI cases are criminal cases they cannot be closed by the investigating officer and require the approval of the court. If my old man’s case could linger in court for the last 11 years without even a chargesheet being filed, surely there would be scores of similar cases which might be meandering around aimlessly? An individual investigating officer cannot even recommend closure, because his interest in doing so would be questionable. What then should be done?
Looking at the size of the problem, it would be in everyone’s interest to set up a Review Board under the CBI Act. The board could consider all cases where a chargesheet had not been issued by the court even after five years of the institution of a case. The Review Board would have the benefit of examining a written report on the likelihood of the case leading to conviction. In cases involving a serving Government officer, if the charge has not been issued within five years of the case being instituted, such cases should be reviewed and closed.
In the case of retired officers, if the man has crossed 70 and the chargesheet has still not issued, the case should be closed. After all one gives amnesty to approvers and sentence remission to murderers and rapists. On the same principle why not request the court to close the case if the accused has crossed 70 and has not even been charged by then? It might leave CBI investigators and prosecutors with time to concentrate on more imperative demands on their time.
Convoluted rules for government servants make it impossible to either exonerate the blameless or punish the guilty
THE second Administrative Reforms Commission (ARC) lamented that “dilatory disciplinary proceedings make a mockery of any attempt to instil discipline and accountability”. But the Commission, instead of recommending a workable alternative amenable to quick implementation, demanded the repeal of Article 311 of the Constitution, a provision that embargoes a government servant from being dismissed, removed from service or reduced in rank, except after inquiry. The repeal of Article 311 was not attempted even during the Emergency or during the Camelot years of Rajiv Gandhi and it would be impossible to achieve it now. Given the nature of political dependency which is integral to coalition politics, both Parliament and Opposition-led state governments would resist such a move as anti-sarkari mulaazim.
A more practical recommendation would have been for the Commission to have sought a time-bound revamp of the 45-year-old Conduct and Disciplinary rules which draw their authority not from Article 311 but from Article 309. They apply to all government employees, whether Secretaries to the Government of India or lowly peons. The convoluted rules require 31 mandatory stages to be completed in every major departmental proceeding and no power on earth can change that, once an inquiry has started. Within this saga, which lasts from two to 20 years,besides what goes on in the parent organization, on umpteen occasions the Department of Personnel and the Central Vigilance Commission (CVC) are asked for “advice”. The process is fraught with endless delay, as the reference meanders from table to table, transcribed in hard copy on a “shadow file”, lest confidential opinions leak.
The convoluted rules require 31 mandatory stages to be completed in every major departmental proceeding and no power on earth can change that
The prospect is so frightening that most officers shun taking even the simplest decision, fearing complaints and their inevitable aftermath. The same charade goes on in the state governments, where honest officers have increasingly begun pushing files higher and higher up the chain of command, reaching the tables of Chief Secretaries and Chief Ministers for no earthly reason except to buy insurance against complaints and inquiries. The result? Decisions are delayed unnecessarily and there is little sense of ownership, leave alone resourcefulness or initiative. Projects and programmes, contracts and purchases get delayed for months – even years – with disastrous consequences.
What is not widely appreciated is the fact that because senior government servants are appointed in the name of the President of India or by the Governor of the state, only the Minister in charge of the Ministry or the Chief Minister of the state can approve the most important milestones in a disciplinary inquiry. But no member of the political executive, nor even an astute lawyer, understands the labyrinthine procedures of a disciplinary inquiry and hence treats them with contempt, leaving the bureaucracy to stew in its own juice.
By bringing in a new set of disciplinary rules, the government can change the way its officers perform. It can boost the morale of honest officers and restore lost initiative.
Why did India choose to adopt this rigmarole as its disciplinary system? Sardar Vallabhbhai Patel, independent India’s first Home Minister, favoured giving civil servants protection to enable them to be frank and impartial. Hence Article 311 came into being. But the CCS (CCA) Rules, 1965 were not framed by Sardar Patel and their reinvention does not require a Constitutional amendment.
Nothing stops the government from abandoning the antiquated disciplinary rules with a simple notification and replacing them with three simple requirements: First, all inquiries should start with the issue of a written chargesheet; second, consideration of the officer’s response should be done in writing but thereafter orally, before an interview board (this is the system in the UK and has been mentioned by the ARC); third, the present judicial sort of inquiry should be favoured only if the misconduct is prima facie serious enough to warrant dismissal or removal from service. In all other cases, it should be a summary disposal. The finding of the interview panel regarding the culpability of the officer or his exoneration, as also the quantum of punishment to be meted out, should be final, except for one appeal. The appellate authority should have powers to mitigate the punishment but, equally, to enhance it if warranted. This would preclude the possibility of appeals being filed routinely to delay and defeat punishment
The success of Indonesia’s anti-corruption agency KPK in fighting this menace should serve as a lesson for us. We could set up a similar agency to put an end to the evil practice of greasing palms. While other efforts have failed, this novel idea could work
The setting was Bali. The event an international conference on fostering democracy and the rule of law. The participants, lawyers, MPs and civil servants from six countries, Indonesia, Bangladesh, Philippines, Nepal, Afghanistan and Myanmar. I was there as an invited speaker on the subject of participatory democracy and grievance redressal systems, in the context of New Delhi. Most intriguing by far was the description of a relatively new Indonesian institution — a Corruption Eradication Commission — born out of public reaction to the brazen corruption that had characterised 30 years of President Suharto’s rule when his family and cronies amassed enormous wealth at public expense. So irrepressible was the public outcry then (1998) that the incoming Government was forced to create a powerful anti-corruption agency — Komisi Pemberantasan Korupsi — as an Act of Parliament. This article dwells on KPK’s resounding success in containing corruption and some lessons for India.
The KPK has already prosecuted and jailed over 100 high-ranking officials in five years. It has won every case before the corruption court and had all verdicts upheld by the Supreme Court. Indonesia says her ranking in the International Corruption perception index has improved thereby, giving the country a more ethical reputation worldwide. Among others, the KPK has jailed a Minister, Members of Parliament, heads and key officials of the Central Bank, the Election Commission, the Competition Commission, Governors and Mayors, as well as senior officers from the police and the Attorney General’s office. It has also jailed businessmen, heads of private companies and notably the father-in-law of the President’s son.
KPK Commissioners are identified by a special selection team appointed by the President from among known leaders in society and representatives from the prosecution and the police. Ten candidates are recommended by the selection committee to the President, who then sends the names to Parliament which makes the ultimate choice of five Commissioners. Certainly a better way than our system where persons that occupy high office (C&AG, CVC, CBI, NHRC, Election Commissioners) are recommended (on file) only after receiving a direction from the Cabinet Secretary and the PMO after a decision has already been taken. Even when the concurrence of the leader of the Opposition is obtained, it is but a formality. Public involvement is zero and any kind of parliamentary scrutiny unheard of.
Another unique feature of the KPK is the way investigators and prosecutors work in partnership and only when they both agree that there is a strong case for prosecution, is it subjected to a further review by the KPK Commissioners who ensure that the case becomes ‘winnable’. Only after that does the case get filed for prosecution which is the primary reason for KPK’s 100 per cent conviction rate. Since the KPK is headed by a five-member commission which operates as a collegium, the manipulation of the entire body becomes very hard.
By law and practice, all corruption trials handled by the KPK are completed within eight months, which includes the time taken before the Special Court and the appeal before the Supreme Court. Insiders give credit to three factors for the success of KPK. First, institutional independence; second, fiscal autonomy and; third, unparalleled public support. We lack all three.
But clearly the first flush of KPK’s victory is on the wane. As could be expected, two KPK Commissioners were themselves accused of corruption, something which could have finished the institution once and for all. This situation was averted only because of resounding public support when thousands voiced their protests in the streets, airwaves and the Internet. A constitutional court later found the evidence against the Commissioners to have been concocted by officials from the police and the Attorney General’s office and the suspended Commissioners are back at work. But the road ahead is now uncharted territory, with growing resistance from within the Indonesian Government’s own agencies. A watered-down version of a new corruption law is reported to be coming soon. The KPK’s continued success now depends entirely on public persistence.
The KPK example carries some lessons for India. Ever since access to television channels and newspapers multiplied, scam upon scam gets reported almost daily. We have enough substantiation of corruption to warrant the installation of the grandmother of all KPKs. But the creation of a KPK and its subsequent sustenance, as the Indonesian story has shown, essentially requires sustained public demand and support, which unfortunately is sorely lacking anywhere in India. Cynicism has reached its nadir.
The middle class which is the biggest votary of anti-corruption, considers it as an inevitable evil that must be endured. Most people believe that corruption will continue, no matter who is at the helm of affairs. This acceptance of wrong-doing has typified the story of the Phillipino Ombudsman which was established after corruption had inundated the Marcos regime. In the absence of public support the Ombudsman in the Phillipines has been reduced to a cipher. A clear pointer to the fact that unless people literally bring the roof down over corruption, nothing and no one within the system is going to do anything about it.