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TO PROTECT OR NOT

Top bureaucrats of our country not only enjoy a host of privileges and perks. Many of them are well nigh immune to being investigated for corruption. That’s thanks to provisions in the law that mandate the Central Bureau of Investigation (CBI) to seek government sanction before instituting legal proceedings against an officer of the rank of joint secretary or above on corruption charges.

Recently, the apex court too questioned the “rightness” of such a provision. “If the policymaker in the top bureaucracy gets protection from inquiry, who should face the rigour of law — the lower bureaucracy which implements the policy decisions? How is this class of bureaucrats separate from others,” a Constitution bench headed by Justice R.M. Lodha said.

All bureaucrats and government servants enjoy protection under Section 19 of the Prevention of Corruption Act (PCA) that requires a probe agency to seek sanction from the concerned authority prior to prosecution. The Supreme Court said that since Section 19 offered protection from frivolous prosecution to all bureaucrats, there was no need to carve out a special class among the accused public servants by enacting Section 6A of the Delhi Special Police Establishment (DSPE) Act, which makes it mandatory for the CBI to seek the Centre’s approval before probing top bureaucrats.

In a note submitted in the court, the Centre had said as public servants of the joint secretary level and above take policy decisions, they needed to be protected from frivolous inquiries so that policy-making doesn’t suffer.

However, the Supreme Court felt Section 6A would create a privileged class of government employees and hence violate the right to equality enshrined in Article 14 of the Constitution.

The Supreme Court was deliberating on two petitions — by Janata Party’s Subramanian Swamy and the Centre for Public Interest Litigation, an NGO — challenging the validity of Section 6A. The petitions alleged it gave the government an excuse to stall enquiries into corruption and discriminate between those who could be probed and those who couldn’t.

Joginder Singh, former CBI director, agrees with that view. He feels that instead of combating corruption, the government is encouraging the evil by stonewalling investigations against bureaucrats. “Otherwise, why would it withhold sanction for prosecution against nearly 300 senior officers of the rank of joint secretary and above,” he asks, pointing out that the government recently turned down the CBI’s request to question a former coal secretary in connection with the coal blocks allocation scam.

“Some of the biggest scams in recent years like the Coalgate, Choppergate or the Commonwealth Games scam could not have occurred without the explicit complicity of senior officers whom the government is keen to protect,” Singh contends.

Of course, it is not as if senior bureaucrats and public servants have never faced probes — especially if they’re in the running for top public sector jobs. In the late 1980s, the late B. Ratnakar, who had been a dynamic chairman of Canara Bank, figured in the list of those in the running for the chairmanship of a leading state-owned enterprise.

The CBI promptly launched a case against him, suggesting that a bungalow he owned in Bangalore had been acquired with suspect income. But Ratnakar laid bare all his financial papers and demonstrated to a magazine reporter that he had acquired the bungalow through canny investing. Ratnakar then announced that he was not keen on the public sector job — and the CBI then dropped the case against him.

Many other bureaucrats have been investigated in similar circumstances. BJP leader Arun Jaitley once pointed out to The Telegraph the instance of IAS officer Michael Pinto, former chairman of the Jawaharlal Nehru Port Trust (JNPT), accused by the CBI of cheating JNPT of Rs 20 lakh by awarding a contract to supply tractor trailers to a company that quoted a price lower than JNPT’s estimate. Pinto was lucky — the case was withdrawn some two years after the CBI acknowledged that the JNPT board had taken a commercial decision.

In the mid-1990s, the CBI also slapped three cases against Maruti Suzuki chairman R.C. Bhargava under the PCA. Bhargava, a former IAS officer, was then managing director of Maruti, then a public sector firm. The cases related to commercial decisions he had taken. He was eventually cleared.

That said, the “special protection” given to senior bureaucrats remains a thorny issue. Legal experts point out that apart from Section 19 of the PCA and Section 6A of the DSPE Act, government officials are protected under Section 197 of the Criminal Procedure Code, which states that no government official can be prosecuted without the sanction of the appointing authority.

“What more do civil servants want? They have been laughing all the way, taking advantage of the various provisions under the law. Senior bureaucrats enjoy double protection — both from investigation as well as prosecution. Neither investigation nor prosecution can take place without permission or sanction of the government,” says senior Supreme Court lawyer Rajeev Dhawan.

Indeed, as Kartikeya Tanna, who practises law in India and the US, explains, the legal provisions protecting civil servants against probes are quite comprehensive. “While Section 197 of the Criminal Procedure Code provides protection to senior government officers at the prosecution stage, that is, before the commencement of the judicial process and after the completion of investigation, the protection under Section 6A of DSPE Act is at the inquiry stage itself.”

This immunity defeats the surprise element in investigations as those guilty will be alerted to the possibility of a probe, he adds. “It doesn’t make any sense if the CBI has to wait for approval from the government before launching an inquiry against alleged acts of corruption by officials of the same government,” he says.

However, Shankar Sen, retired bureaucrat and former director-general, National Human Rights Commission, feels that though one may question the need for civil servants to be protected from investigation, one cannot ignore the need for government sanction either. “Sanction is necessary because in the course of their duty bureaucrats often become victims of witch-hunts and vindictiveness,” he observes.

Tanna though feels that the reason bureaucrats are apprehensive about investigation is because they think that though their political masters will go scot-free, they will have to face the music.

“The need of the hour is a law that can accord complete independence and autonomy to the CBI so that it can carry out its duty without seeking sanctions from the government,” says Tanna.

Even so, that raises the spectre of bureaucrats sitting on decisions, fearful of being charged with hanky-panky.

Over to the government for a decision on a thorny question.