Part of government can still be independent

There is a raging controversy now whether an institution which is a part of the Government can still be independent. This happened in the recent context in which the CBI has come under serious criticism for not acting independently.

The CBI has been defended by some analysts in the newspapers and in the electronic media on the ground that it is a part of the government and so it cannot act independently. I am writing this treatise to propound the thesis that it is possible to act independently even while being a part of the government. I am writing about the tax departments, particularly about the indirect tax department.

Tariff Ruling:
The Customs Act and the Excise Act have provisions that make the decisions independent in individual cases, but general instructions can be given by the government. To the field officers, the ruling given by the Central Board of Excise and Customs is binding, as decided by the Supreme Court. But such ruling is given as a general ruling. The CBEC cannot legally give a ruling in an individual case. And the law also lays down that the Board cannot give direction in a particular case. What is more important is that such rulings also do not bind the Commissioner Appeal though he is a part of the Board. So it is an open situation that the department is bound by the Board's ruling but the appellate authority is not bound. This brings an element of freedom to the appellate commissioners such that they can dispense justice according to the interpretation that they consider right.

Investigation:
There is enough scope for officers to investigate properly since the provisions of search and seizure are such that the seizing officers have to form their own "reasonable belief" before they search a place or a person. Legally, if any direction is given by the higher officers to search a place and it is found that the searching officer did not have any reasonable belief that smuggled goods are hidden there, the search becomes invalid.

Adjudication:
In the case of adjudication, the adjudicator enjoys the same position as a judge. He cannot be given direction to confiscate the goods or release them. He and he alone can decide it. However, the norms are laid down by the government regarding hearing, imposing the quantum of fine and penalty in general terms. Even he can be questioned why he treated one case differently from all other cases. But that is to prevent misuse of power or whimsical use of power.

Prosecution:
Filing prosecution also is another issue which throws up controversy about the freedom of the officers from the government. Officers have to decide themselves that the offender needs to be prosecuted. The government has laid down who can decide on prosecution, but the government cannot decide in an individual case who should be prosecuted. The courts cross examine the person who gives person giving permission if he was satisfied that the case was fit for prosecution. When I filed prosecution against an officer, I was cross-examined in the court on how I satisfied myself about the need to prosecute.

Opposite view
With all these safeguards there is always a possibility that there will be verbal instructions to adjudicate in favour or against somebody.

I can definitely say from my experience that this happens. But such aggrandisements on the part of the government or the senior officers will always come even if there is a law to make an organisation independent of the government. It can be made independent of the government but it cannot be made independent of the senior officers. They would always bully or threaten the juniors to fall in line by overt or covert threats.

Conclusion:
The Customs, Excise and Service Tax laws are designed such that an officer can act independently. It depends on the individual officers to withstand any inroads into their independence. Usually, the threats to juniors to follow the line are given secretly and verbally.

So the officers have to follow the independent path by dint of their own personality and strength of character. If they are cowards, any amount of legal provision cannot make any organisation independent.

E-mail: smukher2000@yahoo.com