The decision-making process in the Government is getting hindered because courts have started supervising investigation of corruption cases which puts pressure on investigators to make a case and creates fear among babus that a genuine error in decisions may come under scrutiny, Finance Minister Arun Jaitley said here on Monday.
The Finance Minister, also an eminent lawyer, said earlier the concept of investigation was exclusively for police and courts did not interfere. “Today, courts supervise investigation. The question of courts supervising investigation puts the investigator on the defensive. He then follows the golden rule that if I give a report that the accused is prima facie not guilty, questions are going to be raised on me and therefore, I must somehow make a case and if the accused has good luck then he gets a fair trial,” he said while delivering the 16th DP Kohli Memorial lecture, organised by CBI annually to commemorate its founder Director.
Jaitley said the “overkill” started with imperfections in the system as the judiciary felt that maybe in some instances, cases are not being investigated properly. Once the judiciary became the supervisor of the probe, the investigators were left with little options and his discretions got squeezed. And then what was to be a rare exception became a pattern, he said.
“This process has actually hindered the whole process of economic decision-making,” the Minister said, adding that his experience is bureaucrats are now “passing the parcel” with a non-committal note rather than taking the decisions themselves. Jaitley said judicial supervisors also have an interest in ensuring that cases that they are handling eventually get established.
In this pattern investigating agencies’ lose out on the fine distinction, which they must know, among “investigating, prosecuting and persecuting.” Emphasising that an investigating agency’s responsibility is huge and its discretion is large, Jaitley said the agency has to prevent itself from the temptation to persecute. “It has to have that sixth sense of balance...The art of extracting the truth. Nobody is expected to be perfect but there are two institutions which, we cannot afford, to be imperfect--one is judiciary and other is Central Bureau of Investigation,” he said.
The Minister said when should an investigation be stopped is a fine balance he (investigator) has to maintain. “That was the core strength of the agencies. And I think that balance was lost out in these extra mechanisms that were created,” he further said. He also said Prevention of Corruption Act, 1988, which was conceived before liberalisation has failed the test of differentiating between genuine error in the decision- making process and an act of corruption.
Jaitley said there are vague terms in the PC Act like “corrupt means”, “pecuniary advantage” and “personal interest” capable of more than one construction which give to an investigator an opportunity to interpret it either way.