The Supreme Court seeks to ensure a strong, independent Central Bureau of Investigation (CBI) to check corruption. Sadly, the CBI is using this enhanced power to pursue frivolous charges against honourable officials. This simply demoralizes and paralyses the bureaucracy, without catching the big fish.
If the CBI is going to chase officials long after they retire, why will they risk taking quick decisions?
The CBI has now registered ten FIRs against six companies for defaulting on loans from public sector banks. How is loan default a crime? Maybe many loans were given because of political connections, but while that’s undesirable, it isn’t criminal. Even willful default is not criminal – the answer is to seize the assets of the defaulters through court action. If the companies in question gave bribes to obtain loans or debt relief, or if they cooked their books, that is certainly criminal. But it is not clear that the CBI understands these distinctions.
Few analysts think the CBI has enough specialized domain knowledge to tackle financial crime. In the West, financial companies are constantly probed and prosecuted, but this requires high financial expertise that can match the best on Wall Street. By contrast, the CBI’s recent efforts suggest a sad lack of expertise, and even of basic financial understanding.
It must be able to distinguish between bad and criminal decisions, and between mere mistakes and crookery. Fast decision-making requires the use of discretion, short-cutting wooden procedures. To treat every use of discretion as criminal is plain wrong, and a recipe for paralyzing decision-making.
Part of the problem lies in a silly legal provision which says that if a decision benefits any private party, the bureaucrat concerned can be charged with corruption even if there is no evidence that he gained personally. A more stupid provision would be difficult to imagine. Can there be any decision that does not benefit somebody? And if indeed there are some decisions that benefit absolutely nobody, would such decisions be worth taking? The UPA government once drafted legislation to remove this provision but did not follow through.
As long as this clause remains law, the CBI can claim it is legally bound to prosecute virtually any decision-taker. Narendra Modi talks of improving governance if he comes to power. That approach must include an immediate ordinance to delete this stupid clause. Other political parties will surely support the conversion of such an ordinance into law.
