New Delhi: The decision-making process in the government is getting hindered because of judicial supervision of corruption cases which puts pressure on investigators to make a case, creating fear among officials that a genuine error in decisions may come under scrutiny, Finance Minister Arun Jaitley said on Monday.
Delivering the 16th DP Kohli annual lecture, organised by CBI in memory of its founder Director, Jaitley said judiciary and CBI are two institutions which cannot afford to be imperfect.
The Finance Minister, also an eminent lawyer, said earlier the concept was investigation is a police function and courts don’t interfere in investigation.
“Today courts supervise investigation. The question of courts supervising investigation puts the investigator on the defensive. He then follows the golden rule that if I give a report that the accused is prima facie not guilty, questions are going to be raised on me and therefore I must somehow make a case and if the accused has good luck then he gets a fair trial,” he said.
Jaitley said the “overkill” started with imperfections in the system as the judiciary felt that may be in some instances cases are not being investigated properly.
The Minister said once the judiciary became the supervisor of the probe, the investigators were left with little options, his discretions got squeezed. And then what was to be a rare exception became a pattern.
“This process has actually hindered the whole process of economic decision-making,” the Minister said, adding that his experience is bureaucrats are now “passing the parcel” rather than taking the decisions themselves.
“…Concerned departments are reluctant to even enter in honest compromises because five years and ten years later they may be hauled up because of these vague phrases in the 1988 PC Act, the golden rule that your investigators follow and this new institution raking the privy council dicta that investigations must also be supervised by the courts,” he said.
Jaitley said judicial superivisors also have an interest in ensuring that cases that they are handling eventually get established.
The Minister said in this pattern investigating agencies’ lost out the fine distinction, which they must know, among investigating, prosecuting and persecuting”.
Emphasising that an investigating agency’s responsibility is huge and its discretion is also very large, Jaitley said the agency has to prevent itself from the temptation to persecute.
“It has to have that sixth sense of balance…the art of extracting the truth. Nobody is expected to be perfect but there are two institutions which, we cannot afford, to be imperfect–one is judiciary and other is Central Bureau of Investigation,” he said.
The Minister said when should an investigation be stopped is a fine balance he (investigator) has to maintain.
“That was the core strength of the agencies. And I think that balance was lost out in these extra mechanisms that were created,” the Minister said.
The Minister said Prevention of Corruption Act, 1988, which was conceived before liberalisation has failed the test of differentiating between genuine error in the decision-making process and an act of corruption.
“When economic activity is being enlarged in the country then in any economic activity and decision-making there will always be new areas to chart out and quick decisions to be made. Can that decision-making be there when every decision maker is always on the defensive, cautious of what will eventually happen if a decision taken is wrong,” he said.
The Minister said,”Does the 1988 Act therefore adequately distinguish between an act of corruption and an act where a decision maker makes an honest error”.
Jaitley said there are vague terms in the PC Act capable of more than one construction which give to an investigator an opportunity to interpret it either way.
Jaitley said only “decisions actuated by corrupt motives” really deserves to be criminally dealt with and not the other categories of “honest error” by bureaucrats.
“If the other categories are criminally dealt with, it will be a deterrent for expeditious and honest economic decision…the environment of suspicion with regard to decision-making has to end,” he said.
Jaitley said the global best practices and kind of bribery laws that are internationally followed must be taken into consideration while bringing changes in the law. A bill to amend the Prevention of Corruption Act, 1988 is pending before the Parliament.
The Finance Minister also gave medals to meritorious officers of CBI.
Earlier speaking on the occasion, Minister of State for Personnel Jitendra Singh said corruption is an issue which always evokes considerable amount of not only sensitivity but also scepticism.
“I have come across number of friends and colleagues who superannuated after putting in 20-25 years of service and went home glorified with misplaced reputation that they have been honest, they have never been bribed, and they were non-corrupt.
“But those of us whom we know in course of time secretly realised they were non-corrupt because they did not have opportunity to accept a bribe. They never enjoyed that kind of a placement or posting and if they had they did not have the skill to accept the bribe,” he said.
Singh said this is something like Mahatma Gandhi’s ideal of non-violence where he said that it is tested when person is in a position of power.