As a sequel to a 2012 Supreme Court judgment wherein Subramanian Swamy was the petitioner, the Department of Personnel & Training (DoPT), is seeking opinion from chief secretaries on how to empower a common man to take on corrupt babus. In a judgement on 30 January 2016 (Civil Appeal No1193 of 2012), the Supreme Court had observed, “Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity, which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.’’
Hence, the DoPT, in its circular dated 21 July 2016 has sought the opinion of chief secretaries of all States, by 12th August on its draft version of citizen empowerment to prosecute officers from the Indian Administrative Services (IAS). The circular gives reference of the SC judgment in the Civil Appeal (No.1193 of 2012 (in SLP (C) No.27535 of 2010) in the Dr Subramanian Swamy versus Dr Manmohan Singh case. It says, “It has been decided to solicit public opinion/ comments in respect of processing of proposals/ requests received from private persons for sanction for prosecution of an IAS officer serving in the State Government/ Central Government under the Prevention of Corruption Act 1988.”
The DoPT has provided the draft instructions for the perusal of these top bureaucrats of every state and union territory and asked them to send their proposals, in case they do not agree with the opinion of this draft version.
As per the recommendations of the SC, the DoPT says that a complaint from a citizen, even if it is without documents or any other proof, should be taken seriously. The relevant authority must reply to the citizen within three months of his complaint. However, in case the citizen is not satisfied with the reply, he is free to seek legal advice.
Following is the draft sent by the DoPT:
The Apex Court further observed that "If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the Competent Authority is otherwise, then it can refuse sanction. In either case, the decision taken on the complaint made by a citizen is required to be communicated to him and if he feels aggrieved by such decision, then he can avail appropriate legal remedy".
It was also observed by the Supreme Court in the matter that, “At the same time, we deem it proper to observe that in future every Competent Authority shall take appropriate action on the representation made by a citizen for sanction of the prosecution of a public servant, so as to ident0 and obviate the areas causing delays in processing of such proposals ...”
Pursuant to the decision, this Department is in receipt of requests from private persons seeking sanction for prosecution in respect of officers for which DoPT is the Cadre Controlling Authority without any proper proposal and supporting documents.
It is observed that such requests, as are received from citizens are more in the nature of complaints sans any supporting details, evidence, which can at best merit inquiry of substantial facts as are evidenced i.e. such requests are without any proposal and supporting documents.
In this connection, it may be appropriate to stress that, the Competent Authority has to take a decision as regards grant or otherwise of a sanction for prosecution requested for, in terms of provisions of section 19 of the Prevention of Corruption Act, 1988.
The existing guidelines as are already in place to consider such cases received from investigating agencies. The instructions have been issued vide letter No.142/4/2012-AVD.I dated 28 July 2014 and 20 May 2016. These guidelines lay down the procedure to deal with the proposals received from investigating agencies through Single window system.
Keeping in view the basic parameters and requirements for cases received from investigating agencies, it has been decided that the procedure for handling the requests for prosecution sanction received from the private persons may be streamlined as indicated below.
a) A proposal from a private individual seeking sanction for prosecution of an IAS officer serving in the State Government may be routed through the concerned State Government as such State government is best placed to provide basic inputs as regards the alleged misconduct of the concerned public servant who is or was working under its administrative control.
b) In case a proposal is received directly by DoPT by such private individuals will be forwarded to the State Governments for the preliminary examination by such State Government vis-à-vis the relevant records.
c) If there is a prima facie case against an IAS officer, the State Government should prepare a detailed report and consider obtaining the version of the concerned officer. Such report, along with all relevant records, and evidence should be forwarded to DoPT with the approval of the Competent Authority in the State Government.
d) In case the concerned State Government, after examination of relevant records, and other evidence is of the view that prima facie no case is made out of any alleged misconduct which may constitute an offence under the Prevention of Corruption Act, 1988, that State Government shall inform the person who has made a request for sanction for prosecution under the said act and endorse a copy of the same to this Department.
e) If a report, along with all relevant records and evidence with the approval of the concerned authority is received, wherein a prima facie case is made out, the same will be treated as a proposal as per existing procedures/ guideline issued vide letter no.142/4/2012-AVD. I dated 28 July 2014 and 20 May 2016 to initiate action for processing the matter for decision of the competent authority.
f) A period of three months period for disposing of such proposals would commence from the date of receipt of complete proposal with all relevant material and the aforesaid report from the concerned State Governments.
Here is the circular issued by the DoPT…
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)