Prosecuting Politicians

At present, the protection takes the form of prior permission that is required to prosecute a public servant. (In the Antulay case, the permission was so slow in coming that Ram Jethmalani, the prosecuting lawyer, in sheer desperation argued that ministers were not public servants!) The origins of the protection can be found in the introduction of dyarchy in 1919. When it was introduced as a way of giving Indians a hand in running local governments, the British feared that the ICS and subordinate services could become vulnerable to persecution by Indian politicians. So they built in a protection clause which said that no public servant could be prosecuted without the permission of the governor or the viceroy. This clause was incorporated into the Prevention of Corruption Act, enacted many years after independence. Once again the motive was the same: to protect civil servants from political persecution and to enable them to discharge their duties efficiently, without fear or favour. The civil service worried, not entirely self-servingly, that when a fresh set of politicians was elected, they could try and settle scores by ordering prosecutions on flimsy grounds. However, in a perverse outcome, politicians, as public servants, have also come within the purview of this protection even though the protection was never intended for them. This has enabled them to misuse the provision by treating it is an immunity. The result is that it people are now asking if the protection should not be withdrawn entirely.

 

On the face of it, the answer is yes. There is no reason why prior permission to prosecute a public servant should be needed. After all, if the evidence is all that flimsy, the courts can throw out the case. It can also be argued that whatever the original intention, the provision in effect serves as an immunity. So why have it? Why interject a stage before the matter reaches the courts by giving a veto over prosecution to the appointing authority? Put in these terms, there is certainly a very strong case for deleting the offending section.

But there could be another aspect concerning the relative vulnerabilities of the civil servants and their political masters. The former do appear more vulnerable than the latter because of the asymmetry in their relationship. Of course, it could be argued on behalf of politicians that they are as vulnerable to politically-inspired persecution as civil servants. It might be useful, nevertheless, to make a distinction between the two categories of public servants with a view to removing politicians from the purview of protection. If nothing else, that could constitute a sensible first step.