A concerned honest civil servant wonders now

The biggest governance challenge for a new government will be re-creating the legitimate space for executive action.

This Mint article is an interesting portrayal of the situation in the country today. I would strongly commend to you the paragraphs of the article on the Supreme Court, the CBI and the bureaucracy.

peacock

The recent CBI decision to prosecute the former coal secretary for corruption without any specific allegation of bribery, quid pro quo or benefit and simply based on a decision on file and some innuendo is but the latest example in a recent trend. Without knowing the specifics of the case (I am not giving the officer a certificate–I do not know him) it has been a chilling experience for honest officers.

In all other democratic countries with rule of law, this mere suspicion with no specific evidence on bribes would not be sufficient to begin a corruption prosecution. This basis for prosecution is reminiscent of prosecutions in the Soviet Union and China. Increasingly the enforcement agencies, in response to media and judicial pressure, have resorted to ‘criminal prosecution by file reading’ instead of doing painstaking investigative and forensic work of the kind that got Wall Street bankers convicted in New York. Such shoddy prosecutions will result in acquittal but that may take 20 years! Plus, in cases where the Supreme Court is directing the investigation, will a lower court later easily acquit the persons charged even if they are innocent?

The problem with file-based imputations of misconduct is that the actions of a corrupt officer helping a firm and an honest officer taking a bold decision in public interest, may look identical on file. The former will not be deterred because the gains of corruption will compensate for the risk; but the bold and honest officer will become a timid nay-sayer because for him there is no personal reward whereas there is now great personal risk if he disagrees with anything said by a subordinate. This is transferring power to the lowest (and possibly less knowledgeable or more venal) level officials who put up the initial proposals, because any disagreement with the lower level is a possible source of allegations of corruption against the higher level.

In the coal case, can we be sure that more coal would be mined by the public sector NLC than by Hindalco? Could there not be a plausible case for the allocation to Hindalco? (Of course, a good officer would have recorded those reasons–but what is not clear is whether that would have deterred the CBI from naming him.) It is possible that the decision was wrong—but bad decisions are not criminal offences. It is indeed possible the decision was corrupt–BUT THEN THE INVESTIGATION SHOULD TRACE THAT. Not having a coal allocation policy is not a criminal offence (and the officer in question did separately argue for a transparent policy.)

The lesson many are drawing is that the safe course is to take those decisions which appear honest–always give to public sector, refuse all liberalising changes, never say yes to any request from any private party, never do anything which–even if innocent–might potentially look guilty. The current situation is actually driving out and scaring the good civil servants. Of course, the image of the civil service has sunk so low because of the large number of corrupt officers, that even making this argument may get many people to think the person arguing so is also corrupt or is a camp follower of the current government.

The article in Mint refers to the Supreme Court orders on the telecom issue. In the other recent matter of clinical trials too, court orders will have economic consequences. If the clinical trials were faulty and violative of the law, the Supreme Court could have struck them down and asked the executive to frame proper guidelines within 30 days and enforce them strictly; that would definitely have been an appropriate exercise of judicial power. But I have doubts about the appropriateness of their decision to start giving clearances to some individual clinical trials but not others on a case-by-case basis, performing what appears to me to be an executive function.

Whatever may be one’s opinion on the current government, there is a mechanism for dealing with that—the forthcoming general election. If you assume that the election produces a working majority for a different government, these other trends will, however, not vanish. Unfortunately, there is no similar mechanism for changing the behaviour of these other institutions. The Supreme Court is now often regarded as legislating and exercising executive power—opponents of the government should not assume this will stop if there is a change of government. Nor should they assume the civil service will suddenly become decisive. Thus, the biggest governance challenge for a new government could well be these issues referred to in the article and the re-creating of legitimate space for executive action.

At the risk of sounding even more retrograde and corrupt, let me make one more point: the Supreme Court has declared unconstitutional the law allowing legislators to continue if they have appealed a criminal conviction. There also appears to be a move to debar those against whom a charge sheet has been filed. Its results are good when one is thinking of some of the usual suspects. However, let us assume some low level judicial magistrate’s court wrongly and without proper evidence, convicts an opposition politician of complicity in riots or of instigating communal hatred or of joining an unlawful assembly. Are we sure that the lower judiciary is honest, competent and fair in all cases? (The number of verdicts overturned by higher courts suggests otherwise.) The appeal process may take 15 years. Meanwhile that person cannot even be considered for election by the voters.

This is the reason why I have serious reservations about putting the careers of people at the mercy of the local police and lower judiciary. If the judiciary had also been able to clean its own Augean stables and ensure that appeals of such convictions are heard in 3 months in the High Court and 3 more months in the Supreme Court, then I would have no reservations–but it is unlikely that the physician will heal himself in the near future. I seriously fear that the unintended consequences of this judgement may be a new game of eliminating political opponents by false prosecutions. Gandhi, Nehru, Patel and thousands of freedom fighters had criminal records; even after Independence, George Fernandes and numerous others contested elections from jail. Many separatist movements could not have been ended if their leaders had been debarred from contesting for earlier offences or charges pending. I say without irony that the great strength of Indian democracy in contrast to other ex-British colonies was that even those in detention and in jail were able to contest elections and the executive could not easily remove its electoral opponents from the fray until convictions were upheld by higher courts. Mahathir Mohammed, Jomo Kenyatta, Robert Mugabe and many others have been accused of dealing with electoral opponents by successfully prosecuting them; that was not possible in India. It is possible now.

Photo: Meanest Indian