Current General Studies Magazine: "The Stained Steel Frame" January 2016

Current General Studies Magazine (January 2016)

General Studies - II "Polity Based Article" (The Stained Steel Frame)

The sensational arrest, by the Central Bureau of Investigation (CBI) on January 18, of the Regional Provident Fund (PF) Commissioner, Chennai, and some of his staff, as also a few private individuals belonging to a group of educational institutions in the city, does not surprise me. The episode is very much part of a pattern that became established a few decades ago — the escalation of corruption from the bottom of the bureaucratic hierarchy to its higher echelons. A sum of Rs.14.5 lakh was recovered from the PF Commissioner when he was trapped accepting a bribe in consideration of favours shown to the administrators of a Chennai-based educational trust, which runs a deemed university offering medical, dental and engineering courses. This comes against the background of CBI investigations against senior Indian Administrative Service (IAS) officers, and arrests of top public sector bank, customs as well as income tax officials. Relevant to recall here is the case of an IAS couple of Madhya Pradesh, hauled up a few years ago for being found in possession of property and bank accounts worth several crores of rupees. They were subsequently dismissed from the IAS. What is apparent in all these happenings is a growing fearlessness of the law in segments of the bureaucracy, giving rise to the impression that whatever has been done by governments and courts till now does not deter the daring offender, who does not mind being named and shamed. Unchecked, this trend could lead to a total erosion of public confidence in bureaucratic fairness and objectivity.

The rot begins at the top

It is sad that the levels of integrity of public servants are plummeting rapidly at a time when the Union government is in the process of implementing the recommendations of the Seventh Pay Commission, that would bring to every Central employee at least a 15-20 per cent rise in emoluments. The rapaciousness that is evident in critical sections of the civil service therefore lends strength to the popular belief that it is greed rather than need that impels many in the bureaucracy to resort to extortion and unabashed corruption.

The common man should therefore be asking the question as to how any increase in the wages of government employees was justified at all in the context of the continued high levels of corruption in the civil service. Also, what can be done to increase deterrence so that government officials at all levels are made to be afraid of punitive action that would not only embarrass them but also invite the ire of their own kith and kin?

While we should worry about the lack of integrity in the whole civil service, what is depressing is that the higher echelons are not setting an example to those below. It is lamentable that corruption among the elitist All India Services (IAS, Indian Police Service, Indian Forest Service) has shown no signs of abating, despite the many checks and balances introduced by successive governments.

The Prevention of Corruption Act (PCA), 1988 and its subsequent amendments have had only a marginal impact. One aspect of the problem is the well known, unethical conduct of those holding ministerial positions. Their unabashed browbeating of senior government officials, particularly those at the level of secretary, is certainly a factor. But then, if the latter cave in to ministerial pressure, they have only themselves to blame. What is even more obnoxious is that some of them are known to join in to share the loot accruing to a minister! The inability to stand up to ministerial pressure is one thing, but to benefit squarely from the misdeeds of those in the political firmament is an entirely different proposition.

Near-immunity for bureaucrats

I quite appreciate the plea for protecting the honest senior government official, who should be able to discharge his duties without fear or favour. I am also quite aware of some investigating agencies like the Central Bureau of Investigation (CBI) and State Vigilance Directorates sometimes hounding a few straightforward officers on flimsy grounds at the instance of a minister annoyed with an honest official for refusing to fall in line with a dishonest decision. It is this desire for transparency and objectivity that saw the issue of the Single Directive by the Union government, which required government permission to the investigating agency to initiate a preliminary inquiry against an official at the level of joint secretary and above. However well-meaning this directive was, it did result in certain licentious conduct by a few in the higher bureaucracy. The directive was struck down by the Supreme Court of India in the hawala case (1997) as unconstitutional. However, from a purely executive order, it became law through an appropriate provision, both in the Central Vigilance Commission Act, 2003 and the Delhi Special Police Establishment (DSPE) Act, 1946, from which, incidentally, the CBI derives its powers to investigate. In 2014, on a challenge by Subramanian Swamy and the Centre for Public Interest Litigation, the Supreme Court struck down the Single Directive — as embodied in Section 6A of the DSPE Act — as discriminatory and violative of the constitutional principle of equality before the law.

Any fresh attempt to give life to the Single Directive through legal subterfuge under pressure from the senior bureaucracy will only send the wrong signal to those pursuing graft at the very top in government. In a large number of States, known for high levels of corruption, the anti-corruption directorates still require government permission to proceed even on a preliminary inquiry against a senior officer. This mandatory provision protects and preserves the unholy nexus between a dishonest minister and the secretary to the department the former presides over.

The requirement of government sanction to prosecute an official found by an investigating agency to have violated the PCA or the Indian Penal Code (IPC) has similarly blunted endeavours to bring an erring official to book. While I admit that an application of mind at the government level — after an agency has established guilt through assiduous investigation — is required to prevent miscarriage of justice, many ministries and State governments are known to have misused this in order to protect dishonest officials who had either misbehaved on their own or in concert with a minister. A downright refusal to sanction prosecution or dilatory tactics in taking a decision on the matter encourages permissiveness. Courts have come down on this rather heavily. After repeated expression of displeasure by the Supreme Court on the matter, the Union government has proposed an amendment to the PCA, making a decision mandatory within three months of a request for sanction. When this amendment is approved by Parliament, one can expect expeditious disposal of requests by investigating agencies.

Punitive action as deterrent

One effective step to stem bureaucratic dishonesty is to deny to the offender benefits of living on proceeds of corruption. While bank accounts suspected to have been parking places for illegal income can be frozen by an investigating agency, enough has not been done in respect of immovable properties acquired by an unscrupulous official. The Criminal Law Amendment Ordinance, 1944, permits attachment of property believed to have been purchased with the help of illegally obtained money. Such property will be forfeited under a judicial order to the state by an accused convicted under the PCA, to the extent determined by the criminal court that has convicted him. Such acts of attachment and forfeiture lend some deterrence to prevent corrupt civil servants from converting ill-gotten wealth into various forms of property. Increasing resort to this kind of punitive action could be a disincentive to buying property out of tainted money.

In the final analysis, the fight against corruption in public service is extremely problem-ridden, because the canker has spread to the higher echelons of the civil service. The hands of investigating agencies have been tied not only by non-cooperation at levels that matter, but also by legal constraints. Very little can be done to substantially alter the unfortunate situation. Stronger legislation to plug the loopholes in the current law — an amendment to this effect is in the pipeline — is not the answer. Political will combined with greater courage on the part of senior officials to stand up to unethical pressure from above can do a lot to stem the rot. Public vigilance coupled with media support will help greatly.

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