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Public servants of official service need not worry. They have adequate security guaranteed by law – analysis


On May 23, Finance Minister (FM) Nirmala Sitharaman announced that banks should automatically extend loans to eligible borrowers in the micro, small and medium-sized business sector without fear of 3Cs: CBI, CVC and CAG ( Central Investigation Office, Central Vigilance Commission, and Comptroller and Auditor General, respectively). The FM statement highlighted the widely perceived apprehension among public servants that they can then be prosecuted for their decisions in good faith.

Good governance, which allows public servants to be innovative in their planning and execution, should not be subordinated to the repeated guarantee of protection by the political executive.

Corruption of public servants is undoubtedly a threat to society. It subverts democratic processes and the rule of law, negatively affecting social and economic development. At the same time, society must protect honest and upright public servants so that they can function freely and fairly. An efficient and intrepid bureaucracy is a necessity for the growth of the country and can only be ensured by providing public servants with adequate legal protection.

The need of the hour is to instill the belief among public servants and the public that the existing legal framework balances both aspects: it punishes the corrupt and protects the honest and upright.

In India, the legal framework related to anti-corruption laws dates back to 1860 when it became part of the Indian Penal Code (IPC). Later, it was supplemented by another statute: the Corruption Prevention Law of 1947 (PC Law of 1947). Both were eventually replaced by a consolidated law, the Corruption Prevention Act of 1988 (1988 PC Act). Delinquent public servants are generally prosecuted under the PC Law of 1988 and sometimes also under the IPC or other criminal statutes. These anti-corruption statutes prescribe strict penalties to create a deterrent effect on corrupt public servants.

Under the current legal framework, a public official service server is protected against frivolous prosecution on three levels. First, enactments generally prohibit the initiation of any legal proceedings against a public servant for actions taken by him in good faith. Second, they require the prior approval of the government in question before initiating an investigation or recording a case for acts performed in the performance of their official duties or obligations. And, third, they require a previous sanction from the government so that the court becomes aware of the crime.

The above protections, however, cannot be taken as absolute. The decision of the authority to grant or reject the sanction to prosecute, in principle, is final, but such decisions are supposed to be made after analyzing the evidence freely and fairly. Courts have consistently held that prior sanction is a safeguard for public servants who make decisions in good faith, but not a shield for the corrupt. Therefore, at the sanction stage, the authority is expected to act freely and fairly.

Sometimes public servants are caught in a political impasse or legal impasse and, together 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 political decisions from previous regimes.

The inadequacy of the existing legal framework to protect the good faith decisions of public servants introduced an amendment to the PC Law in 2018.

These amendments brought a paradigm shift and introduced three significant protections to allay the fears of honest public servants. One, the removal of Section 13 (1) (d), which allowed even honest decisions to qualify as corrupt because the decision made was not in the general public interest. It made the public servants responsible for the prosecution without any real reaction or quid pro quo accusations. Second, the amendments made prior government approval mandatory to initiate an investigation or investigation against a public servant for decisions made in the discharge of his official duty. And, three, the amendments made the prior sanction mandatory for the prosecution of even retired public servants.

The 2018 amendments to the PC Law, therefore, provide among the highest protection in the world to public servants in India. These protections come into play the moment a complaint is filed against the public servant. Because adequate legal safeguards exist, public servants need not be concerned with 3Cs while executing government policies efficiently, free, fair and legal. But if they still can’t perform, fear of 3Cs can only be called trickery to avoid liability.

Amit Anand Tiwari is a lawyer on the Supreme Court. He is a special advisor to CBI and has extensive experience in handling cases related to the Corruption Prevention Law.

The opinions expressed are personal.

Hindustan Times