Why bureaucracy baulks at decisions, should omit draconian provisions in Prevention of Corruption Act

Our Prime Minister has time and again appealed to bureaucrats for taking fair and objective decisions based on sound evidence and designed to serve the national interest. Manmohan Singh exhorted civil servants to fight the tendency of not taking decisions because of the fear that things might go wrong and the civil servants might be penalised for that.

In his speech on Civil Services Day, 2012, he had observed, “It is our government’s commitment to put in place a system and create an environment in which our civil servants are encouraged to be decisive, and no one is harassed for bona-fide mistakes of errors of judgement. We stand committed to protecting honest and well-meaning civil servants who might have made genuine errors in their work. And I sincerely hope that these intentions of our government are shared by the state governments too.”

In order to appreciate the mindset of senior civil servants, both IAS and IPS, perhaps performance-tracking of both the central and the state government would be revealing. It would emerge that the central and state governments have not lived up to the commitments and the civil servants, both serving and retired, have been left to fend for themselves even where objective, fair and transparent decisions emerging from the deep analysis of the subject have been taken for the best interest of the country. More often than not, it is the political leadership that has yielded to spot expediency.

Our Prime Minister has great expectations from the civil servants in terms of contribution to the society.

There is a draconian provision, section 13(1)(D)(III) of the Prevention of Corruption Act, 1988, as one of the criminal misconduct by a public servant.

It reads, “While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.” It could be interpreted that a public servant could be prosecuted if he has taken a decision that results in pecuniary gain to an individual without any public interest.

In today’s scenario, most public servants are required to make a decision to facilitate growth. Private sector is often the key partner in most developmental endeavours. It is difficult to imagine a scenario where the key economic actors, i.e., private, public or both, that would not gain from any decision that encourages or sets in motion an economic activity.

Whether it is tax rationalisation, amendment in the duty, fee or any other form of tax levying, disposal of public assets including disinvestment, or incentives for making a trade competitive, they all have features that impact pecuniary gain while undertaking such activities. A day may come when tax exemptions announced with good intentions may also be interpreted as criminal misconduct.

Our Prime Minister has cautioned against a “mindless atmosphere of negativity and pessimism”. There is no certainty that the honest and innocent would be spared from harassment as long as such provisions exist in the Act. There is a fair possibility that many of the economic decisions could be interpreted differently with the dynamics of the rationale taking different shades at different times.

It is now left to an investigating officer to interpret a decision as one of criminal misconduct. It is also important to note that the public servant cannot only be prosecuted during the active service but any time after the retirement till death.

It was against this background that the Committee on Civil Services Reform ( Hota Committee) in its report has strongly recommended a review of the section 13(1)(D)(III) of the Prevention of Corruption Act, 1988. The committee had observed that all the commercial decisions benefit one party or the other and it is often difficult for a public servant, even though acting in good faith and national interest, to ensure conformity with the aforesaid provision of law.

It observed that the easiest course for the civil servant is to avoid taking a decision or refer it to a larger body or committee to take a decision. This would largely explain the present atmosphere of safe play and lack of decision by pushing the file.

Unless this draconian provision is omitted, civil servants will always be inhibited from taking bona-fide commercial decisions. It is also important to note that the provision does not even require some kind of material nexus between the officer and the concerned pecuniary gainer.

(This article was published in the Economic Times on 3rd December, 2012)