P.C. Alexander

Sept.23 : The legislative measures as well as the procedures in force for fighting corruption among public servants have come in for sharp criticism, both in Parliament and in the media. However, very few have dealt with this problem with the frankness and sense of urgency as the Chief Justice of India (CJI) K.G. Balakrishnan in his speech at a seminar in New Delhi recently. Justice Balakrishnan not only pointed out the main lacunae in India’s anti-corruption laws and procedures, but also offered several practical suggestions to rectify their deficiencies. Some of his important suggestions are: confiscating the assets of persons convicted of offences under the Prevention of Corruption Act, creating more designated courts and separating Central Bureau of Investigation’s investigating and prosecuting functions. However, the brunt of Justice Balakrishnan’s criticism was on the requirement of prior sanction of the competent authority to initiate proceedings against public servants. Referring to the inordinate delays in getting sanction, the CJI stated that "the quality of governance suffers when decisions are made on account of other considerations related to political patronage, kinship or caste and linguistic identity". This may appear as strong words, but they reflect the concerns of most citizens at the gross misuse of the provision for prior sanction.

Unfortunately, certain observations made by M. Veerappa Moily, Union minister for law and justice, at the same seminar a day later have caused doubts whether the government will ever give up its powers of prior sanction. An attendant issue is whether dilution or dropping of the guarantees given to public servants under Article 311 will in any way contribute to the efficiency of the fight against corruption by public servants. Mr Moily said: "There is no gainsaying that the provisions of Article 311 have come in the way of bringing corrupt civil servants to book". He added that Article 311 requires a "revisit". However, the doubt that persists is the linkage between Article 311 and eradication of corruption among public servants.

In this context it is necessary to remind those who wish to revisit Article 311 that this Article was not supposed to be a tool to fight corruption by public servants but was intended to assure public servants security of tenure and protection from arbitrary punishment and, thus, induce the best candidates to join the All-India Services.

Article 311(2) states that no person who is a member of the civil service shall be dismissed or removed or reduced in rank except after an enquiry in which s/he has been informed of the charges against him/her and given a reasonable opportunity of being heard in respect of those charges. Then why do those in power believe that punishing guilty civil servants without due process is necessary to make laws against corruption more effective?

Everyone familiar with the debates in the Constituent Assembly on the creation of All India Services with constitutional safeguards against arbitrary dismissal, removal or reduction in rank will acknowledge the crucial role the chief architect of India’s unity, Sardar Vallabhbhai Patel played in winning the support of the Assembly in creating the All-India Services and giving the officers certain guarantees. Even Jawaharlal Nehru was opposed to the creation of an All-India Civil Service on the Indian Civil Service pattern which prevailed in pre-Independence days. In a letter dated April 27, 1948, to Jawaharlal Nehru, Sardar Patel had said that "constitutional guarantees and safeguards are the best medium of protection for these services and are likely to prove more lasting".

Eventually Sardar Patel was successful in getting the support of Nehru and all others who were opposed to the creation of All-India Services and to granting them constitutional guarantees against arbitrary punishments. One can only hope that such a historic decision made by the Constituent Assembly, mainly because of Sardar Patel’s strong conviction about their needs, will not become a casualty of the zeal for reforms in the laws for fighting corruption.

Mr Moily, who is also the chairman of the Administrative Reforms Commission, is reported to have said that the scope of the Prevention of Corruption Act should be widened to include "gross perversion of the Constitution and democratic institutions amounting to the wilful violation of the oath of office, abuse of authority by unduly favouring or harming someone, obstruction of justice, squandering of public money and collusive bribery".

Most right thinking citizens will support such measures, but this does not mean that the constitutional safeguards under Article 311 have to be diluted in order to deal with the problem of corruption by public servants.

Now let us examine how the provision for prior sanction has been hindering the investigation into complaints of corruption against public servants. Many people who are not familiar with the decision-making process in the government seem to believe that civil servants themselves can delay or deny sanction for prosecution with the help of their fellow civil servants. In actual practice, however, prior sanction for investigation of complaints of corruption can be issued or denied only by the political executives, i.e. the ministers and, in sensitive cases, only with the approval of the Prime Minister. In some cases of complaints of corruption, investigations may reveal that some politicians have also been involved in the crimes alleged against the public servant. Naturally, such politicians would try their best to ensure that sanction is held up for long periods or even denied.

Sanction issued after three-four years is as bad as sanction refused because the politician-bureaucrat combine would have easily won over many witnesses from the side of the prosecution. Some politicians take the stand that they have been misled by their officers, but this cannot exonerate them from complicity in the crimes.

There have also been complaints that some politicians deliberately delay granting permission for prosecution in order to keep the civil servants as their willing tools for indulging in more corrupt practices. Thus, there is corruption within some corruption cases because of the requirement of prior sanction.

Mr Moily has said that the protection given to public servants under Article 311 of the Constitution is being used to create obstacles for expeditious punitive action. But there is no protection in Article 311 for public servants against prosecution or punishment; the only safeguard is that the civil servants should be punished only after due process.

If the government would bring about some of the reforms suggested by the CJI and also altogether drop the requirement of prior sanction, the scope for "creating obstacles for expeditious punitive action" would be considerably reduced.

P.C. Alexander is a former governor of Tamil Nadu and Maharashtra

P.C. Alexander