E-Paper
Public servants on official duty need not worry. They have adequate safety guaranteed in law
Fear of investigations must not impede their official duty. A 2018 amendment in the prevention of corruption law provides them enough safeguard from being wrongly persecuted
On May 23, finance minister (FM) Nirmala Sitharaman announced that banks should automatically extend loans to eligible micro, small and medium enterprises sector borrowers without the fear of 3Cs – CBI, CVC, and CAG (Central Bureau of Investigation, Central Vigilance Commission, and Comptroller and Auditor General, respectively). The FM’s statement highlighted the widely perceived apprehension among public servants that they can be later prosecuted for their bona fide decisions.
Good governance, which allows public servants to be innovative in their planning and execution, should not be subservient to the repeated assurance of protections by the political executive.
Corruption by public servants is undoubtedly a menace to society. It subverts democratic processes and the rule of law, adversely affecting the social and economic development. At the same time, society must protect honest and upright public servants to enable them to function freely and fairly. An efficient and fearless bureaucracy is a must for the country’s growth and it can only be ensured by providing public servants with adequate legal protection.
The need of the hour is to instil belief among the public servants as well as the public that existing legal framework balances both the aspects: It punishes the corrupt and protects the honest and upright.
In India, the statutory framework relating to anti-corruption laws dates back to 1860 when it was made part of the Indian Penal Code (IPC). Later, it was supplemented with another statute – the Prevention of Corruption Act, 1947 (1947 PC Act). Both of these were finally replaced by a consolidated law, the Prevention of Corruption Act 1988 (1988 PC Act). Delinquent public servants are generally prosecuted under the 1988 PC Act and, sometimes, also under IPC or other penal statutes. These anti-corruption statutes prescribe stringent punishments to create a deterrent effect on corrupt public servants.
Under the existing statutory framework, a public servant on official duty is protected from frivolous prosecution at three levels. First, the enactments generally prohibit the initiation of any legal proceeding against a public servant for actions taken by them in good faith. Second, they require prior approval of the concerned government before initiating an enquiry or registering a case for acts done in discharge of his official function or duties. And, third, they require prior sanction from the government for the court to take cognisance of the offence.
The above protections, however, cannot be taken as absolute. The authority’s decision to grant or refuse sanction to prosecute, in principle, is final, but such decisions are supposed to be made after scrutinising the evidence in a free and fair manner. Courts have consistently held that the prior sanction is a safeguard for public servants making bona fide decisions, but not a shield for the corrupt. Therefore, at the sanctioning stage, the authority is expected to act in a free and fair manner.
At times, public servants are caught in a political quagmire or legal logjam, and, along with political executives, become an undesirable victim of prosecution. Scrutiny of court cases and media reports show that a change in government has on many occasions led to the prosecution of public servants who, as part of their official duties, executed policy decisions of previous regimes.
The inadequacy of the existing legal framework in protecting bona fide decisions of public servants brought in an amendment in the PC Act in 2018.
These Amendments brought paradigm shift and introduced three significant protections to allay the fears of honest public servants. One, the deletion of Section 13 (1) (d), which allowed even honest decisions to be termed as corrupt on the ground that the decision made was not in the larger public interest. It made public servants liable for prosecution without any mens rea or allegations of quid pro quo. Two, the amendments made the prior approval of government compulsory to initiate an enquiry or investigation against a public servant for decisions taken in discharge of their official duty. And, three, the amendments made prior sanction compulsory for the prosecution of even retired public servants.
The 2018 amendments in PC Act, thus, afford among the highest protection in the world to public servants in India. These protections come into play the moment a complaint is brought against the public servant. As there are adequate statutory safeguards available, public servants need not worry about 3Cs while executing policies of the government in an efficient, free, fair and legal manner. But if they are still unable to perform, the fear of 3Cs can only be termed a ruse to avoid responsibility.
Amit Anand Tiwari is an advocate in the Supreme Court. He is Special Counsel for CBI, and has extensive experience of handling cases related to the Prevention of Corruption Act
The views expressed are personal
