Insights into Editorial: An order against the anti-graft fight
09 February 2016
The Tamil Nadu government recently came out with an order which mandated prior permission of the government for an inquiry into corruption charges against any State official. However, many political parties and anti-corruption crusaders have criticized this decision.
What the order says?
It says in case of any complaint against government servants “irrespective of the rank or group of the public servants complained against, the Directorate of Vigilance and Anti-Corruption shall forward the complaints to the Vigilance Commission, and the commission in turn shall seek and consider the remarks of the Government before ordering appropriate enquiry” by the DVAC.
Practice so far:
Until this order, government approval for a preliminary enquiry (PE) or registration of a regular case was required only in respect of All India Services officers (Indian Administrative Service, Indian Police Service and Indian Forest Service).
Implications of this order:
The implication of the order is that any inquiry on complaints against even clerks or subordinate staff will have to be first cleared by the department.
How TN government defends this order?
The government says this order is aimed at bringing about uniformity in treatment of complaints against government servants of all ranks.
- The State government order cites a Supreme Court ruling in a public interest litigation of 1997, which struck down the Single Directive of the Government of India that drew a distinction between officers of and above the rank of Joint Secretary and the rest of the bureaucracy.
- The 1997 ruling interpreted the Single Directive as discriminatory and violative of Article 14 of the Constitution that grants the right to equality before the law and equal protection of the laws to every citizen.
- The Madras High Court too had asked the State government to evolve a “non-discriminatory policy” towards all public servants.
Intention behind the Supreme Court’s order:
The annulling of the Single Directive, first in 1997 (the Vineet Narain judgment) and again in 2014 (following the incorporation of the directive into the Central Vigilance Commission Act, 2003) by the Supreme Court was mainly aimed at strengthening the hands of the Central Bureau of Investigation (CBI) and other vigilance agencies and gave them absolute freedom in proceeding with complaints of corruption without reference to the Central government.
Problems with TN’s order:
The Tamil Nadu government order does exactly the opposite. It further weakens an already weak Vigilance Directorate. The Vigilance Directorate in the stae does not enjoy even the limited autonomy that the CBI enjoys.
- Also, apart from diminishing vigilance drives, the new order brims with practical difficulties. There are more than 2,00,000 lack officials in the state. If the complaint against even someone in the lowest rung in each department — a police constable or a Grade IV employee in the Secretariat or Revenue Department, for instance — has to be vetted at three levels, viz. the Vigilance Directorate, Vigilance Commission and the department concerned. This, obviously, takes too much time.
- This delay might lead to loss of confidentiality of the contents of a complaint and there is also the danger of destruction of evidence to prove misconduct. Such delays might also pose various threats to whistleblowers.
- The government order does not also make it clear as to what happens when there is disagreement on the course of action in respect of a complaint between the three principal players involved.
What needs to be done now?
Anti-corruption agencies should be given some free space when dealing with corruption cases. Autonomy to these agencies in initiating a preliminary enquiry or regular case will not result in miscarriage of justice because the ultimate power of sanction to prosecute a government official in a court of law rests with the government.
The new order is further expected to encourage the corrupt elements in government. Hence, the State government should revisit the order. Such a course of action would considerably enhance its credibility.