The losing battle against corruption

The losing battle against corruption

In order to curb corruption in public service,including in the judiciary, the procedure that can now halt swift cognisance needs to be changed through legislative means.

1.There are very few people in India who believe that New Delhi, as it is presently organised, is either capable or willing to go the whole distance to bring to book those who are suspected of having committed irregularities in handling state funds. This has particular reference to the scams related to the 2G spectrum and the conduct of the Commonwealth Games. The muchtalked-

about action plan to tackle corruption on a war footing appears to be a non-starter, going by the fact that there has not been even a whisper about it over the last fewdays. Even if such a plan is to be grudgingly unveiled soon, it could at best be old wine in a new bottle.

2.Two officials handpicked by theUPAgovernment are under the scanner. They are the Chairman of the National Human Rights Commission (NHRC) and the Central Vigilance Commissioner (CVC). There are no direct allegations against the former. But his closerelatives are being investigated. Such a probe will first have to prove that they acquired assets in a wrongful manner,

and which they cannot account for. Only then can the allegations be taken forward to probe whether their proximity to theNHRC Chairmanwhen hewas theChief Justice of India gave them any advantage in the matter, as has been alleged.

3.This will be a long-drawn-out process. There is everything in the procedure established by law and convention that can halt swift cognisance being taken of judicial corruption. This fact spells unmitigated danger to the whole polity. You could imagine how a lowly official in the bureaucracywould feel about this travesty. Actually he would be able to rationalise any corrupt conduct thus:if peopleinhighplacescouldindulgeinlarge-scalecorruption

and get awaywithit, whycould henot emulatethem, hoping that he would not get caught either?

4.Was it not the former CVC, N. Vittal, who said that corruption in India was a low-risk and high-profit activity? Howappropriate are those words in the context of the alarming decline in India’s public life, where good people shun public office and the rapacious ones swarm

around it with great relish!

5.Another official who is in deep trouble is the present CVC. By all accounts P.J. Thomas was a

distinguished civil servant with a good record of service once upon a time — at least till he was made Telecommunications Secretary under Minister A. Raja. He was a candidate with some merit when he was considered for the CVC’s position.

6.But he had two problems. It was widely alleged that while filing an affidavit before the court when the issue became contentious, he had deliberately justified whatever Mr. Raja did in thematter of allotting spectrum. Despite the fact that the allotment took place before Mr.

Thomas became Secretary to the Ministry, there was a feeling that he took little note of the wrongful actions and even justified them. The allegation, therefore, is that he

was made CVC only to whitewash the monumental scandal. Then there was the palmolein import case in Kerala in which he was cited as an accused.

7.So, when his name was proposed, surprisingly, by the government for the CVC’s job, the BJP smelled a rat and opposed the move tooth and nail. The Leader of the Opposition, Sushma Swaraj, refused to endorse the choice but, strangely, the government went ahead with

the appointment, even ignoring the fact that Mr. Thomas was facing a criminal trial in Kerala.

8.Now Mr. Thomas is an albatross around the government’s neck. There is speculation over why he is sticking on to his post even after the subsequent development of his trial in the palmolein import casebeing cleared by the Supreme Court of India following the death of the prime accused in the case. The lurking suspicion is that Mr. Thomas’ nomination was made under political

pressure. It is not illogical to believe that there is again a political hand behind his decision to stay on. If that be so, it is a clear indicationthat corruptionamongpublicservants

inIndia is fostered bypolitical parties.Against this setting,

the common man can very well forget the prospect of

ever having an honest government.

9.There are three specific issues that are of utmost

relevance to this debate. The first is already engaging

the Supreme Court’s attention. The so-called Single

Directive of the Union government that requires an

investigatingagencyto obtain government approval before

proceeding against a civil servant of and above the rank

of Joint Secretary has many holes, including a negation

of equality before the law. There is also the definite risk

of a delinquent civil servant getting advance notice of

proposed action, which could facilitate his destroying or

secreting out valuable documentary evidence. After this

directive was struck down in the ‘hawala case,’ the

National Democratic Alliance government, in a dubious

move, revivedit and gave it legislative backing—possibly

at the instance of some top bureaucrats. It constitutes an

untenable fetter put on the Central Bureau of

Investigation. The agency is even otherwise weighed down

by an unsupportive government and a hostile group of

influential bureaucrats who have the ears of theMinisters.

10. The next issue of importance is the monitoring

by courts of investigations in crucial cases such as that

concerning the spectrumscandal. There is a point of view

—aired with great clarity by the former CBI Director,

C.V. Narasimhan, known for his sharp mind and utter

integrity—that for such monitoring to be effective, the

SupremeCourt could consider entrustingthe arduous task

of overseeing progress to a small group.

11.This group should comprisea former High Court

Judge, a former Joint Director of the CBI and an expert

from the area of economic crime belonging to one of the

revenue services of the government. This group could

report to the Supreme Court from time to time, thereby

helping the court to come to its own conclusions without

losingvaluable time. This experiment canpossiblybe tried,

first in the 2G spectrumcase, and its utility evaluated.

12. Another suggestion from Mr. Narasimhan

relates to the framing of a lawby the Central government

titled the ‘CriminalMisconduct of PublicMen.’ It should

incorporate all the offences that come under the ambit of

the Prevention of Corruption Act, 1988, but give more

powers to the investigating officer. These powers should

include competence to record signed statements from

witnesses and confessions that are valid in law, both of

which are now prohibited by the Code of Criminal

Procedure (CrPC) and the Indian Evidence Act

respectively. Thiswill beonthelines of pieces of legislation

such as the Maharashtra Control of Organised Crime

Act, 1999 (MOCOCA), which relatively frees the

investigator fromthe curbs imposed by the EvidenceAct.

These suggestions made by Mr. Narasimhan could go a

long way to tackle corruption by public servants with

greater speed and certainty.

13. The third problemrelates to how governments

could be prevented frommisusing the authority to block

appeals against acquittals. Instances are legion where a

government that is interested in protecting a favourite,

applies the guillotine and successfully stalls further

proceedings in court. This is done by denying a request

from the investigating agency to take an acquittal on

appeal. The CrPCarms the government with such power,

and it is often blatantly abused. There is a definite need

to divest governments of this undeserved power. For this

to happen, all political parties need to come together to

bring about an amendment to the CrPC.

14. In the present situation, there is little hope of

such a consensus emerging. This is because, at present,

there are no saints in politics when it comes to battling

corruption, and softness towards corruption cuts across

party lines. India’s best bet ultimately are its citizens, who

will resolve not to submit to demands for illegal

gratification on the part of any public servant, or vote for

the corrupt leaders of the land in the general elections.

15. (The author is a former Director of the Central

Bureau of Investigation.