The judicial supervision of corruption cases has hindered the “whole process of economic decision-making” as investigators try to make a case even in instances of “genuine error of judgement”, Finance Minister Arun Jaitley today said.
Speaking at the 16th DP Kohli memorial lecture organised by CBI, Mr Jaitley said that earlier the concept was that investigation was a police function and courts do not interfere in that.
He said courts supervise the investigation and that puts the investigator on the defensive, who tries to follow a “Golden rule” of making a case against an accused. If the accused is lucky, he or she may get a fair trial.
“This has actually hindered the whole process of economic decision-making,” Mr Jaitley said.
Several of the major corruption cases during the previous UPA government were ordered by Supreme Court and high courts to be probed by CBI. Supreme Court even monitored the probe in into some cases, like the one in connection with the 2G case.
The Finance Minister said that officers are reluctant to take decisions as they fear that they may be hauled up later over the same.
“Once the judiciary became the supervisor of investigation, the investigator was left with little option, his discretions got squeezed. And, then, what was to be a rare exception became a pattern,” he said.
Mr Jaitley said that supervisors and court’s judicial supervisors also have an interest in ensuring that the cases they are investigating or supervising eventually get established.
The minister said that in a liberalised environment,India’s potential was not “eight per cent growth, our potential is double digit growth” and that there was hence a need to “revisit” such practices.
While doing so, he added, “we have to see the global best practices and kind of bribery laws that are internationally followed”.
Mr Jaitley said that rather than taking decisions, officers are playing a non-committal note and allowing a file to move so that the eventual decision is not taken by them.
“Get rid of the environment of distrust; bring about an essential distinction between what I refer to as a trial and error judgement… on one side and a decision actuated by corrupt motives on the other side,” he said.
The Finance Minister said that decisions taken with a view to forward corrupt motives deserve to be criminally dealt with, but not the other categories.
“If the other categories are criminally dealt with, it will be a deterrant to expeditious and honest economic decision making,” MrJaitley said.
On a query referring to vague provisions of the Prevention of Corruption Act, Mr Jaitley said, “This is not my view now. This was my view even when we were in the opposition that the overkill coming from various institutions certainly has not helped.”
In response to another question on overkill starting from political circles, Mr Jaitley said, “I don’t think that the overkill started with the political circles. The overkill started out of these imperfections in the system.
“The judiciary felt and I understand there may be some instances where some cases are not being investigated propely, we must, therefore, keep an eye and then evolve this whole
concept of supervising investigations in a continuing manner,” he said.
Further sharing his views on a scenario where “judiciary became the supervisor of investigation”, Mr Jaitley said that when something which “was to be a rare exception became a pattern… what was lost out was the fine distinction… that an investigating agency must know between investing, prosecuting and persecuting”.
He said that the investigator lost out the balance of where to stop an investigation.
“That is a fine balance he has to maintain. That was the core strength of the agencies. And I think that balance was lost out in these extra mechanisms which were created,” the minister said.
“The economic decision will also be trial and error. It may also involve playing with the joints. It may be also will involve an element of risk. Does the 1988 Act, therefore, adequately distinguish between an act of corruption and an act where a decision-maker makes an honest error. I think the 1988 Act fails that test,” he said.