It was late 1990s in Bihar where, in a meeting this author was attending as Director Industries to purchase steel pipes for sinking handpumps for drinking water, his senior IAS colleague, the then PHED secretary, boasted that in the last two years he’s managed to avoid any purchase of pipes. The throat of the poor in the villages could remain parched, but he was not inclined to take the risk of a likely vigilance/CBI inquiry.
The scenario has not changed much. In fact the decision-making paralysis has worsened due to ‘play safe attitude’ of public servants. The result: delay in acquisition of aircraft/warships/arms and ammunition as well as in deciding large infrastructure projects, especially those based on concessional agreements, as the procedures are long and the probability of allegations very high.
The need of the hour is to balance the two requirements:
A. To create an environment where corrupt public servants/politicians/ businessmen are identified, investigated, tried and convicted.
B. To provide an environment for officers to take decisions without fear. Since the mechanism for fixing accountability is almost non-existent, there is a huge chance that officers would play safe rather than stick their neck out. The other reason for such a stand could be that not deciding may result in their transfer and affect their Annual Confidential Report, whereas taking a decision may result in lodging of a criminal case, loss of social prestige, and possible arrest.
If we see the legal provisions, as per Section 156 of CrPC, the police can register cognisable cases against anyone. Section 197 provides for requirement of sanction for a court to take cognisance in case of public servants for offences allegedly committed in the discharge of duty. There is no provision of screening before lodging of FIR or inquiry under CrPC.
Such protection was provided by Single Directive which contained instructions to CBI on initiating a case against certain categories of civil servants.
Directive no. 4.7(3)(i) says for officers like Joint Secretary to Government of India/his equivalent/or certain level in PSEs and banks, sanction of the secretary of the ministry/department is required before CBI takes up any inquiry.
In Vineet Narain v. Union of India (1998), the Supreme Court struck down the Single Directive and issued several directions to the government, including the one to give statutory status to CVC. Single Directive, which was an Executive Order, was later given the status of a statute by an amendment to add Section 6A to the Delhi Special Police Establishment Act, 1946 in 2003.
Since there was delay in the screening process required as per Section 6A, Central government by its O.M. dated 26.9.2011, on basis of recommendation of GoM, laid down requirement for timelines and speaking order. If the minister refuses to give permission within a week, it must be then put up to the PM.
However, in Manohar Lal Sharma v. Principal Secretary (2014), the apex court held that Section 6A protection would not be available in the Supreme Court or high court-monitored cases.
Later, its constitution bench in Subramanian Swamy v. CBI (2014) struck down Section 6A on several grounds like (i) It differentiates between public servants on the basis of their rank, and (ii) protection is not available to Joint Secretary and above level officers in states.
So this protection given to ‘decision- making level’ since 1969 till 1991 and from 2003 to 2014 against initiation of inquiry is no more available. As it is the state which bears the impact of corruption and deliberate indecision, the onus lies on the government to inculcate fear in the mind of the corrupt and fearlessness in the mind of honest decision-makers. Till then, ‘safety first’ would be the norm rather than the exception.
Singh is a former IAS officer, and legal practitioner