Courts supervision of cases affecting decision-making: FM
29 April 2015 2:57 AM IST
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.
Differentiate between genuine error and graft: Jaitley
Finance Minister Arun Jaitley on Monday said that there is a fine difference between corruption and genuine error of decision which the present anti-graft law fails to recognise. He said the Prevention of Corruption Act has failed the test of differentiating between a genuine error of decision making and an act of corruption because of its vague terminology. Speaking at the 16th DP Kohli memorial lecture, Jaitley also asked the investigating agencies to desist from “temptation to persecute”. “An investigating agency’s responsibility is huge. Its discretion is also very large and, therefore, considering the responsibility and discretion where the agency investigates more serious cases, it prosecutes and yet it has to prevent itself from the temptation to persecute,” he said. Jaitley said the Prevention of Corruption Act was conceived in the pre-liberalisation era and the scenario changed in 1991 with the ushering in of the liberalised economy, where a quick decision-making process was the need of the hour.
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