Current Public Administration Magazine (January - 2016) - An order against the anti-graft fight
Sample Material of Current Public Administration Magazine
Law Administration
An order against the anti-graft fight
The Tamil Nadu government must urgently revisit its order mandating prior permissionto proceed with a corruption inquiry against any State official
The Tamil Nadu government’s order dated February 2, 2016 mandating prior permission of the government for an inquiry into corruption charges against any State official is a rude jolt to those fighting against the lack of integrity in public administration. Until this order, government approval for a preliminary enquiry (PE) or registration of a regular case was required only in respect of All India Services officers (Indian Administrative Service, Indian Police Service and Indian Forest Service). Employing strange logic, the State government order cites a Supreme Court ruling in a public interest litigation of 1997, which struck down the Single Directive of the Government of India that drew a distinction between officers of and above the rank of Joint Secretary and the rest of the bureaucracy. In the case of the former, the directive mandated prior Central government permission even to proceed with a PE while there was no such restriction with regard to those below the Joint Secretary. The 1997 ruling interpreted the Single Directive as discriminatory and violative of Article 14 of the Constitution that grants the right to equality before the law and equal protection of the laws to every citizen.
The recent government order refers to the Madras High Court ruling of October 7, 2015 allowing the State government “to revisit and evolve a non-discriminatory policy” with regard to investigation procedures relating to corruption charges. The new procedure makes it obligatory for a complaint of corruption against any public servant — irrespective of his or her rank — of the State government to be vetted and sent first by the Vigilance Directorate to the State Vigilance Commission, which, in turn, will seek and consider the remarks of the government before ordering an “appropriate enquiry”.
A setback to fighting graft
On the face of it, the government order is unexceptionable. It does not discriminate between groups of State employees on grounds of rank. The point is, in respect of Central government employees, the annulling of the Single Directive, first in 1997 (the Vineet Narain judgment) and again in 2014 (following the incorporation of the directive into the Central Vigilance Commission Act, 2003) by the Supreme Court strengthened the hands of the Central Bureau of Investigation (CBI) and other vigilance agencies in giving them absolute freedom in proceeding with complaints of corruption without reference to the Central government. The Tamil Nadu government order does exactly the opposite. It emasculates an already weak Vigilance Directorate. The latter does not enjoy even the limited autonomy that the CBI enjoys.
Apart from diminishing vigilance drives, the new order brims with practical difficulties. We are talking here of a workforce of more than 2,00,000 people. If the complaint against even someone in the lowest rung in each department — a police constable or a Grade IV employee in the Secretariat or Revenue Department, for instance — has to be vetted at three levels, viz. the Vigilance Directorate, Vigilance Commission and the department concerned, one must reckon with the attendant delay in its processing. The loss of confidentiality of the contents of a complaint and the danger of destruction of evidence to prove misconduct are other sources of worry. These dangers are real in an atmosphere that reeks of venality and all that goes with it, including the intimidation of whistle-blowers.
The government order does not also make it clear as to what happens when there is disagreement on the course of action in respect of a complaint between the three principal players involved. Who will have the final say? In my view, the new order of things will further encourage the corrupt elements in government. I would earnestly appeal to the State government to “revisit” the order. Such a course of action would considerably enhance its credibility. A clinical re-examination of the issues should aim at introducing the position that now prevails in the Central government.
Autonomy to anti-corruption agencies in initiating a PE or regular case will not result in miscarriage of justice because the ultimate power of sanction to prosecute a government official in a court of law rests with the government. This protection against any recklessness or malice on the part of the CBI or State Vigilance or similar agencies is now sought to be given even to retired government employees through an amendment to the Prevention of Corruption Act (PCA), 1988 that has been approved by the Union government and is now pending before Parliament. (At present, a former public servant can be prosecuted for corruption without any sanction from the government.) What should give confidence to both Central and State governments is the fact that the Supreme Court has not disputed their competence in granting or denying sanction requested by an investigating agency. The court has merely demanded greater speed in a government decision in this regard. The Union government has brought in an amendment to the PCA that lays down a three-month deadline to decisions. This is also pending Parliament’s nod.
Bribes at every step
All this is irrelevant to the fundamental debate over the rising tide of corruption in government. Unchecked, we should very shortly be at the bottom of the list that Transparency International puts out every year. (As per the 2015 ranking, we are 76th out of 175 countries.) The common man is exercised over the fact that he has to pay a price for every service that he is entitled to as a citizen. Digitisation of government processes has helped to an extent in many States. But this is yet to reach a number of areas of discretion which yield themselves to the demand and payment of bribe. Sanctions for building, registration of property (both acquisition and sale) and criminal investigation by the police are all fetid processes that cause enormous hardship to the poor and rich alike. Police stations and Sub-Registrar offices are dreaded by the citizen, where nothing works without greasing someone’s palm. What is of the greatest concern is the rapid escalation of corruption to the higher echelons of the bureaucracy, especially the All India Services. While ministerial dishonesty is real in many instances, it does not justify a civil servant being complicit in such gross misdeed or lining his or her own pocket exploiting the rapaciousness of a Minister.
In the ultimate analysis, the battle against graft will necessarily have to go on if we are to hold our heads high as a nation. For this to happen there is a need for building the citizen’s will and resolve not to pay a bribe when demanded. It is our readiness to jump the queue and secure a service ahead of others through tendering speed money to the rapacious and shameless public servant that breeds corruption. It is equally true that no one can individually help achieve a corruption-free government — we are far too familiar with tales of intimidation and murder of individuals who had taken up the challenge in the past. It is a collectivity alone that could challenge and transform a corrupt order.
Get this magazine (Current Public Administration) free if you purchase our any of the below courses:
Public Administration Online Coaching / Study Kit