formed cabinet sec calls it an "occupational hazard"..same as actors call their incessant violation of privacy an occupational hazard.
problem is not with the PC act only, its the entire criminal justice system and the entire adminative politico culture.
Jaitley said that the act was amended prior to lpg where dercision making was largely regulatory in nature and not as dynamic , post lpg environment has changed and decisions have to be made to liberalise the economy -- disinvest, deregulate, contract out etc etc. in this case section 13 d of pc act that also violates the english legal jurisprudence principle (that we follow) of innocent until proven guilty by making the officer assumed guilty unless he proves himself innocent.
Now decisons have to be made but such clause have created a policy paralysis in the upper echelons of the bureaucracy. Further no where has the term public interest been defined in the act. So if clause 13 D says that if the decision amounts to pecuniary or any other benefit to a third party without any public interest then officer is liable.
Then again the CBI is criticised as been a political pawn where party in power uses it victimise those against it and exonerate itself from any culpability. The CBI has been accused of inefficient and shoddy investigation and in attempt to prove that it can solve cases it produces evidence against the accused and not necessarily the guilty. That CBI in order to save its skin tries in all its might to prove that the accused is guilty. (so it has been said)
For example in the coalgate scam. the CBI did not mention even once the name of PM manmohan singh who was the head of executive when this scam happened (this also shows how a weak leader or a coalition gvt is more prone to corruption). Rather it put all the blame on the coal secretary and the industrialist. But the court suo moto under section 319 decided to bring in Mr. Mohan. That showed how motivated was CBI's chargesheet. The CAG (Vinod Rai) who had infact done this expose on the coal allocations said that it would be a black day for indian bureaucracy if Mr Parekh, the coal scrtry was to be arrested.
However how is the secretary not culpable of the crime if he is serving the minister in serving the decison -- is something that beats me. No secretary in coalgate, 2g or CWG scam was arrested. If so why this fear psychosis?? Bureaucrats have pleaded that the system of accountability of bureaucrats should be done away with as bureaucrats only do what they are told to(like president). independent thinking and decision making without fear or favour are a thing of the 60s. Now politicians have enough tools in their hands -- suspension punishment posting, frequent transfers etc etc to victimise u into submiting to their authority. The bureaucrats have pleaded that one should follow Englands model where only Ministers are held responsible.
But this going to create really big problem for the governance of the nation. Imagine these top notch so called the creamiest layer of recruits having best expertise and experience forming the steel frame who wield so much authority can never be prosecuted. Politicians are laymen and it is the bureaucrat who guides him through the intricacies of policy making, what if he choses to beguile the minister, make bad policies and inturn lead to collapse of the gvt.. this is giving rise to babu raj. Chalo, if not such a big deal then the secretary can make the policies in his favour and indulge in corporate favours by backdoor negotiations, minister being blisfully unaware all the time. Such corruption can only be checked if the babu knows that he is liable to prosecution.
Anyways coming to the PCA act, the bureaucrats or ministers who are prosecuted have questioned the the expertise of CBI to look into matters relating to policy making.
Then how do we shield those decisions that are honest but turn out to be a loss to public interest. The fact is India needs more ethical people than expertise people. Cause Expertise is no use if its not applied ethically. But such honest bureaucrats can also not make decisions.
Then there are decisions that are correct that is are good in public interest but still have graft charges. Say the Bofors case where Bofors proved to be such an asset to the army and proved its mettle during the Kargil war but later Graft charges were alleged.
what to do with such decision , technically they can't be dealt by section 13-1-d of PC act as it satisfies the Public interest clause.
Now to factor in one more aspect we need to look at the general weakening of state as an institution and the rise of market. In this regard corporate houses are exercising an undue influence on the state and if corrective measures are not taken then it can lead to policy capture as well by vested interest or the rise of politician-bureaucrat-industrialist nexus. here the the PC act checks both these problems.
PC act is also a reason for incremental decision making rather than rational decision making. Now amendments have been proposed to do away with section 13 and also to make bribe giving and bribe giver criminal charge
IS PC act administrative law??
problem is not with the PC act only, its the entire criminal justice system and the entire adminative politico culture.
Jaitley said that the act was amended prior to lpg where dercision making was largely regulatory in nature and not as dynamic , post lpg environment has changed and decisions have to be made to liberalise the economy -- disinvest, deregulate, contract out etc etc. in this case section 13 d of pc act that also violates the english legal jurisprudence principle (that we follow) of innocent until proven guilty by making the officer assumed guilty unless he proves himself innocent.
Now decisons have to be made but such clause have created a policy paralysis in the upper echelons of the bureaucracy. Further no where has the term public interest been defined in the act. So if clause 13 D says that if the decision amounts to pecuniary or any other benefit to a third party without any public interest then officer is liable.
Then again the CBI is criticised as been a political pawn where party in power uses it victimise those against it and exonerate itself from any culpability. The CBI has been accused of inefficient and shoddy investigation and in attempt to prove that it can solve cases it produces evidence against the accused and not necessarily the guilty. That CBI in order to save its skin tries in all its might to prove that the accused is guilty. (so it has been said)
For example in the coalgate scam. the CBI did not mention even once the name of PM manmohan singh who was the head of executive when this scam happened (this also shows how a weak leader or a coalition gvt is more prone to corruption). Rather it put all the blame on the coal secretary and the industrialist. But the court suo moto under section 319 decided to bring in Mr. Mohan. That showed how motivated was CBI's chargesheet. The CAG (Vinod Rai) who had infact done this expose on the coal allocations said that it would be a black day for indian bureaucracy if Mr Parekh, the coal scrtry was to be arrested.
However how is the secretary not culpable of the crime if he is serving the minister in serving the decison -- is something that beats me. No secretary in coalgate, 2g or CWG scam was arrested. If so why this fear psychosis?? Bureaucrats have pleaded that the system of accountability of bureaucrats should be done away with as bureaucrats only do what they are told to(like president). independent thinking and decision making without fear or favour are a thing of the 60s. Now politicians have enough tools in their hands -- suspension punishment posting, frequent transfers etc etc to victimise u into submiting to their authority. The bureaucrats have pleaded that one should follow Englands model where only Ministers are held responsible.
But this going to create really big problem for the governance of the nation. Imagine these top notch so called the creamiest layer of recruits having best expertise and experience forming the steel frame who wield so much authority can never be prosecuted. Politicians are laymen and it is the bureaucrat who guides him through the intricacies of policy making, what if he choses to beguile the minister, make bad policies and inturn lead to collapse of the gvt.. this is giving rise to babu raj. Chalo, if not such a big deal then the secretary can make the policies in his favour and indulge in corporate favours by backdoor negotiations, minister being blisfully unaware all the time. Such corruption can only be checked if the babu knows that he is liable to prosecution.
Anyways coming to the PCA act, the bureaucrats or ministers who are prosecuted have questioned the the expertise of CBI to look into matters relating to policy making.
Then how do we shield those decisions that are honest but turn out to be a loss to public interest. The fact is India needs more ethical people than expertise people. Cause Expertise is no use if its not applied ethically. But such honest bureaucrats can also not make decisions.
Then there are decisions that are correct that is are good in public interest but still have graft charges. Say the Bofors case where Bofors proved to be such an asset to the army and proved its mettle during the Kargil war but later Graft charges were alleged.
what to do with such decision , technically they can't be dealt by section 13-1-d of PC act as it satisfies the Public interest clause.
Now to factor in one more aspect we need to look at the general weakening of state as an institution and the rise of market. In this regard corporate houses are exercising an undue influence on the state and if corrective measures are not taken then it can lead to policy capture as well by vested interest or the rise of politician-bureaucrat-industrialist nexus. here the the PC act checks both these problems.
PC act is also a reason for incremental decision making rather than rational decision making. Now amendments have been proposed to do away with section 13 and also to make bribe giving and bribe giver criminal charge
IS PC act administrative law??
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