With the Prevention of Corruption Act widely seen as deterring civil servants from taking decisions, the government is set to amend the law very soon. Government sources told TOI that amendments in Section 13 (1) of PC Act have been finalized and will be placed before Parliament soon.
Sources also said that the views of CBI, which investigates all important PC Act cases, were sought before making changes in the law. The Law Commission had also given a report earlier this month in this regard. The issue was discussed in a recent meeting of Prime Minister Narendra Modi and secretaries and the department of personnel and training has been asked to expedite the process.
Section 13(1)(D)(III) of PC Act, 1988, which talks about criminal misconduct by a public servant, is often called draconian. Former PM Manmohan Singh was recently summoned by a trial court in coal scam case under this sub-clause of PC Act.
The section reads, "While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest." A public servant could be prosecuted if he/she has taken a decision which results in pecuniary gain to an individual without any public interest. The punishment may be up to seven years in jail and fine.
Finance minister Arun Jaitley alluded to the environment of distrust among public servants while delivering the CBI's 16th D P Kohli Memorial lecture at Vigyan Bhavan on Monday.
Jaitley said civil servants were scared of taking decisions for fear of being hauled up later. He said this law, which failed the test of differentiating between a genuine error of decision-making and an act of corruption because of its vague terminology, needed to be looked at.
The finance minister also criticized the judiciary's interference in cases investigated by the CBI, which affected decision-making. He said judicial supervision of corruption cases had hindered the whole process of decision-making as investigators tried to make a case even in instances of "genuine error of judgment". He said this "overkill" from various institutions had not helped in the country's growth.
He said there was a fine difference between corruption and genuine error of decision which the present anti-graft law failed to recognize.
Talking about the PC Act, which was drafted in the pre-liberalization era in 1988, Jaitley said the scenario changed in 1991 with the opening up of the economy, where a quick decision-making process was the need of the hour.
"Can there be decision-making where every decision-maker is on the defensive, cautious of what will eventually... if a decision is taken wrong. The economic decision will also be trial and error. It may also involve playing with the joints. It may also involve an element of risk," Jaitley said.
"I think the 1988 Act fails that test... I think in the 1988 Act, phrases like corrupt means, public interest, pecuniary advantage, valuable thing, personal interests are phrases which are vague and capable of more than one construction. Once they are capable of more than one construction, they give to an investigator an opportunity to interpret it either way and, today, the whole ambit of the circumstances under which the investigations are held has also changed," he said.
Jaitley also asked investigating agencies to desist from the "temptation to persecute". "An investigating agency's responsibility is huge. Its discretion is also very large and, therefore, considering the responsibility and discretion where the agency investigates more serious cases, it prosecutes and yet it has to prevent itself from the temptation to persecute," he said.
Asserting that judiciary and CBI were two institutions which could not afford to be imperfect, Jaitley said there has to be a balance in investigation, prosecution and persecution.
He said the judiciary started monitoring certain cases when it felt that these were not being probed appropriately. However, soon, this "rare exception" turned into "a pattern" which squeezed the discretionary powers of investigators and put them on the defensive.
As a result, he said, decision-making in the government became a "pass the parcel game" where government officials feared taking policy decisions.
"This whole process prepares civil servants and decision-makers where decision-making becomes a game of passing a parcel. (As a result) rather than I taking the decision, I put a non-committal note and allow the file to move so that the eventual decision is not taken by me," Jaitley said.
Sources also said that the views of CBI, which investigates all important PC Act cases, were sought before making changes in the law. The Law Commission had also given a report earlier this month in this regard. The issue was discussed in a recent meeting of Prime Minister Narendra Modi and secretaries and the department of personnel and training has been asked to expedite the process.
Section 13(1)(D)(III) of PC Act, 1988, which talks about criminal misconduct by a public servant, is often called draconian. Former PM Manmohan Singh was recently summoned by a trial court in coal scam case under this sub-clause of PC Act.
The section reads, "While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest." A public servant could be prosecuted if he/she has taken a decision which results in pecuniary gain to an individual without any public interest. The punishment may be up to seven years in jail and fine.
Finance minister Arun Jaitley alluded to the environment of distrust among public servants while delivering the CBI's 16th D P Kohli Memorial lecture at Vigyan Bhavan on Monday.
Jaitley said civil servants were scared of taking decisions for fear of being hauled up later. He said this law, which failed the test of differentiating between a genuine error of decision-making and an act of corruption because of its vague terminology, needed to be looked at.
The finance minister also criticized the judiciary's interference in cases investigated by the CBI, which affected decision-making. He said judicial supervision of corruption cases had hindered the whole process of decision-making as investigators tried to make a case even in instances of "genuine error of judgment". He said this "overkill" from various institutions had not helped in the country's growth.
He said there was a fine difference between corruption and genuine error of decision which the present anti-graft law failed to recognize.
Talking about the PC Act, which was drafted in the pre-liberalization era in 1988, Jaitley said the scenario changed in 1991 with the opening up of the economy, where a quick decision-making process was the need of the hour.
"Can there be decision-making where every decision-maker is on the defensive, cautious of what will eventually... if a decision is taken wrong. The economic decision will also be trial and error. It may also involve playing with the joints. It may also involve an element of risk," Jaitley said.
"I think the 1988 Act fails that test... I think in the 1988 Act, phrases like corrupt means, public interest, pecuniary advantage, valuable thing, personal interests are phrases which are vague and capable of more than one construction. Once they are capable of more than one construction, they give to an investigator an opportunity to interpret it either way and, today, the whole ambit of the circumstances under which the investigations are held has also changed," he said.
Jaitley also asked investigating agencies to desist from the "temptation to persecute". "An investigating agency's responsibility is huge. Its discretion is also very large and, therefore, considering the responsibility and discretion where the agency investigates more serious cases, it prosecutes and yet it has to prevent itself from the temptation to persecute," he said.
Asserting that judiciary and CBI were two institutions which could not afford to be imperfect, Jaitley said there has to be a balance in investigation, prosecution and persecution.
He said the judiciary started monitoring certain cases when it felt that these were not being probed appropriately. However, soon, this "rare exception" turned into "a pattern" which squeezed the discretionary powers of investigators and put them on the defensive.
As a result, he said, decision-making in the government became a "pass the parcel game" where government officials feared taking policy decisions.
"This whole process prepares civil servants and decision-makers where decision-making becomes a game of passing a parcel. (As a result) rather than I taking the decision, I put a non-committal note and allow the file to move so that the eventual decision is not taken by me," Jaitley said.
Source:-The Times of India
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