Thursday, February 3, 2011

Public servants, corruption, and legal immunity

Plagued by numerous corruption scandals, the Government has constituted a group of ministers to look at administrative and legislative measures to tackle corruption, including a review of laws that provide immunity to public servants. Interestingly, the last two occasions that the Government moved to modify the anti-corruption laws was to strengthen the legal immunity offered to public servants.

The provision of legal immunities to public servants goes back to the formative years of the present Indian state structure. The Code of Criminal Procedure (CrPC) adopted in the early 1860’s required previous sanction of the government to prosecute judges and important public servants (those “not removable from office without the sanction of the government”) for offences committed in the discharge of their official duties. By 1898, the Code also contained a provision for special courts whereby the government could take control of all aspects of the trial by specifying the court, the judge, the manner of trial and the offences to be tried for.

Providing immunity to its officials was a matter of great importance for the colonial state. The Government of India Act, 1935, prohibited the legislature from even considering changes to the immunity provisions in the CrPC without the prior sanction of the Governor General. Further, sanctions for prosecution of immunized officials was taken away from lower officials and vested with the topmost officials of the colonial government - none other than the Governor General (for Federal officials) and Governor (for State officials). The legal immunities offered to public servants were understandable from the perspective that the colonial state wanted its functionaries to be accountable only to itself. The needs of maintaining control over a vast and hostile continent dictated this.

Immunity provisions for public servants have continued in the law after the advent of a republican constitution – more specifically, in sec. 197 of the CrPC as well as in the Prevention of Corruption Act (PCA), 1947 and its later replacement, PCA, 1988. According to details provided by CBI, as of December 2010, it was waiting for permission to prosecute 320 officers. The CBI does not reveal how many requests have been denied over the years.

Fear of vexatious prosecution?

The justifications for immunity provisions have evolved since independence. The Law Commission articulated arguments in support of the immunity provisions in these words in 1969:

“The ultimate justification for the protection conferred by sec. 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecutions. It should be left to the government to determine from that point of view the question of the expediency of prosecuting any public servant”

On its recommendations, the CrPC was amended in 1973 to extend the immunity provisions to retired public servants as well. More recently, in late 2008, the UPA Government tried to amend the PCA, 1988 to provide immunity provisions to retired public servants in line with similar provisions in the CrPC providing as a justification the need to provide a “safeguard to a public servant from vexatious prosecution”. The amendments to the PCA were passed in the Lok Sabha but could not clear the 14th Rajya Sabha in its dying days.

Fear of harassment of state functionaries by ‘private persons harbouring a grievance’ by starting prosecution variously described as ‘needless’, ‘false’, ‘frivolous’, ‘speculative’, ‘vexatious’ or ‘mala fide’ came to be the accepted justification for the previous sanction immunity provisions. However, this fear could not have been based on the actual experience of public servants as the immunity provisions had been there ever since the criminal codes were put in place in the 1860’s. If prosecution that could be characterized as above was indeed prevalent and used to harass ordinary citizens, would it not have been in order to take additional steps to discourage vexatious prosecution intended to harass not just public servants, but also the ordinary citizens?

These questions, it seems, were never opened up for public debate.

Greater protection for ‘decision makers’

Governments were not satisfied with even this level discretionary power. Corruption involving ‘decision making level’ government officials and members of the political executive usually in collusion with private companies (‘grand corruption’ in the words of the recent Central Vigilance Commission Draft National Anti-Corruption Strategy document) was an extremely sensitive matter and governments wanted discretionary powers to disallow even investigation of such cases. 

A Congress government in 1986 took the first step to introduce another layer of protection for ‘decision making level officers’ – officers of level Joint Secretary and above - through an executive order given to the Central Bureau of Investigation (CBI) known as the ‘Single Directive’. This infamous directive prohibited the CBI from even investigating such officers without prior permission from the government. The state governments also followed the Centres lead by requiring their investigating agencies to obtain permission prior to prosecuting senior officers.

Over a decade later, having witnessed the total frustration of investigations into ‘grand corruption’ scandals associated with the Narasimha Rao government, the Supreme Court quashed the ‘single directive’ observing that

“(t)he law does not classify offenders differently for treatment there under, including investigation of offences and prosecution for offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone”

Strongly feeling the necessity to intervene in what were administrative issues, the Supreme Court directed the Government to make the CBI and the Enforcement Directorate more autonomous and isolated from “extraneous influences” and even suggested ways to make that happen. A weak coalition government attempted to reintroduce the ‘single directive’ provision through an ordinance in 1998, but the Supreme Court negated this attempt.

It was left to a BJP lead NDA government to bring back the substance of the ‘single directive’, now in the form of law, through the CVC Act of 2003.

The saga of the ‘single directive’ is not over. A petition challenging the constitutional validity of a law requiring government approval for investigation of only senior officials is currently pending with the Supreme Court. The Congress lead UPA Government has opposed the petition.

Benefits of discretionary power

Clearly, major political parties across the spectrum have supported strengthening of immunity provisions at different times. The reasons for this support are not far to seek.

The immunity provisions put absolute and unaccountable discretionary powers in the hands of the political executive. Political parties in government routinely use this power in a partisan manner to secure a political advantage over parties who are their adversary. Discretionary power in the hands of the political executive also helps develop the nexus between the political executive and the corrupt or pliant bureaucrat, a necessary condition for “grand corruption”.

The reasons for getting rid or at least limiting the legal immunities provided to public servants will be clear. The Draft of the National Anti-Corruption Strategy also recommends this. However, having enjoyed the ‘benefits’ of these discretionary powers for decades, it is extremely unlikely that the major political parties will vote to give up these powers voluntarily.

This piece was published in the February 2011 issues of One India One People

1 comment:

tilman said...

As for corruption and immunity, I suggest the following law review article: