|
I |
Introduction:
During the Mauryan Era (313 BC), in the ancient India (200 BC - 1000 AD), the
Civil Servants performed the role of Personal Servants; during the medieval
period (1000-1600 AD), they were acting as State Servants, in the British period
they became Public Servants, and the Civil Servants became a protected service.
During the 58 years of Indian Independence, 1947-2005, the Indian Civil Service
has more or less followed the British model, but the pressures emanating from
within and outside are now forcing the Indian Civil Service to professionalize
itself.
The first Public Service Commission was set up on 1st October 1926, and the
Federal Public Service Commission was set up under the Government of India Act
1935. The provision for the formation of Public Service Commissions at the
provincial level was also made under this Act for the first time. And with the
promulgation of the new Constitution for Independent India on 26th January 1950,
the Federal Public Service Commission was accorded a constitutional status as an
autonomous entity and was given the title ‘Union Public Service Commission’ (U.P.S.C.).
The mission held by Civil Servants is a mixed bag of compliance, cooperation,
policy-responsiveness, constitutional responsiveness, and guidance. Going with
the terms of the configuration of Philip Morgan, the Indian Civil Service system
acts as the principal agent of the State. In saying the above, it needs to be
kept in mind that some of the characteristics of the patrimonial state still
pervade the Country India and to that extent, also its civil service system.
Investigating
Alleged Human Rights Violation
The primary function of National Human Rights Commission (N.H.R.C.) is to
receive complaints and initiate investigations into violations of human rights
by the Public Servants or their abatement thereof. It is no wonder that N.H.R.C.
is empowered to receive the complaints (that have been filed within one year of
the perpetration of the alleged human rights violation) or investigate on its
own "negligence in the prevention of human rights violations by public
servants." In accepting these complaints, the Commission is mandated to confine
its substantive consideration to those complaints that have been filed within a
period of one year of the perpetration of the alleged human rights violation.
Absence Of Power To
Prosecute Public Servants And Make Enforceable Orders:
The National Human Rights Commission (N.H.R.C.) is, in essence, purely a
recommendatory body that has in its arsenal only the powers to recommend and to
initiate litigation. It does not have the power to make enforceable orders and
determinations. In cases where its inquiry discloses the violation of human
rights or negligence in the prevention of the same by a Public Servant, it can
neither initiate proceedings for prosecution against the delinquent official nor
can it award appropriate compensation to the victim or his family members. All
that it can do is recommend to the appropriate authorities: (i) to prosecute the
errant public servants; (ii) to take any other action with a view towards
remedying or preventing the violation of a fundamental right and (iii) to grant
interim relief to the victim or his family members. In addition, the Protection
of Human Rights Act, 1993 does not specifically make the recommendations of the
Commission binding on the concerned Government or the authority. But it clearly
lays down a time frame (one month) within which the Government or the authority
must respond to the Commission about the action it has taken on the Commission’s
recommendations. While the Commission must provide a copy of its investigation
results to the complainant it is also mandated to publish its investigation
results and decisions along with the government’s action taken in that regard.
Procedural
Establishments Under The Code Of Criminal Procedure, 1973
Section 197 of the Code of Criminal Procedure, 1973 gives protection to a person
who is still a Public Servant at the time the prosecution is launched, and also
when he is no longer a public servant. This is to protect the Public Servant
from a case being filed against him after his retirement. When the government
servant or the employee is not removable from his office without the sanction of
the Central Government, then the same is necessary. Sanction under this section
is not necessary before a Public Servant could be prosecuted for an offence of
bribery under Section 161 of the Indian Penal Code, 1860. There are three facets
in the consideration of the protection given by Section 197 of the Cr.P.C. to
the acts done by public officers. (i) The act complained attaches to it the
official character of the person doing it; (ii) The official character or status
of the accused gave him an opportunity of doing the act, and (iii) The offence
is committed at a time when the accused was engaged in his official duty.
The Test Is Whether
The Public Servant Can Reasonably Be Said To Have Committed The Offence By
Virtue Of His Office
In Dhannjay Ram Sharma v. M.S. Uppadaya and Ors., AIR 1960 SC 745, the hon’ble
Supreme Court observed that before the protection of Section 197 of the Code of
Criminal Procedure, 1973 can be claimed by an accused person he has in the first
instance to satisfy the Court that he is a Public Servant "not removable from
his office save by or with the sanction of a State Government or the Central
Government", and next that the acts complained of, if committed by him were
committed "while acting or purporting to act in the discharge of his official
duty" The scope of Section 197 of the Cr. P. C. has been considered by the Privy
Council and the hon’ble Supreme Court in numerous cases. As was laid down by the
Privy Council in H. H. B. Gill v. The King, AIR 1948 PC 128:
A public servant can only be said to act or to purport to
act in the discharge of his official duty, if his act is such as to lie within
the scope of his official duty
The Supreme Court in S.B. Saha v. M.S. Kochar, AIR 1979 SC 1841 after examining
several earlier decisions held that the words any offence alleged to have been
committed by him while acting or purporting to act in the discharge of his
official duty employed in Section 197(1) of the Code, are capable of narrow as
well as a wide interpretation. If these words are construed too narrowly, the
Section will be rendered altogether sterile, for, no part of an official duty
can be to commit an offence It can never be so, In the wider sense, these words
would take under their umbrella every act constituting an offence committed in
the course of the same transaction, in which the official duty is performed or
purports to be performed. It was held that: The words any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty employed in
Section 197(1) of the Code, are capable of a narrow as well as a wide
interpretation. If these words are construed too narrowly, the Section will be
rendered altogether sterile, for it is no part of an official duty to commit an offence, and never
can be. In the wider sense these words will take under their umbrella every act
constituting an offence, committed in the course of the same transaction in
which the official duty is performed or purports to be performed. The right
approach to the import of these words lies between these two extremes. While on
the one hand, it is not every offence committed by a public servant while
engaged in the performance of his official duty, which is entitled to the
protection of Section 197(1) an act constituting an offence, directly and
reasonably connected with his official duty will require sanction for
prosecution under the said provision. As pointed out by Ramaswami J. in Baijnath
vs. State of Madhya Pradesh AIR 1996 SC 220 at P.222: it is the quality
of the act that is important, and if it falls within the scope and range of his
official duties, the protection contemplated by Section 197 of the Criminal
Procedure Code will be attracted.
While dealing with the matter, the Law Commission has observed:
the protection under the sanction is needed as much after
the retirement of the public servant as before retirement. The protection
afforded by the Section would be rendered illusory if it were open to a private
person harboring a grievance to wait until the public servant ceases to hold his
official position, and then to lodge a complaint. The ultimate justification for
the protection afforded by Sec.197 is the public interest in seeing that
official acts do not lead to needless or vexatious prosecutions.
The provisions of Section 195 of the Cr.P.C. cannot be evaded by resorting to
devices or camouflage. For instance, the device of charging a person with an
offence to which that section does not apply, and then convicting him of an
offence to which it does cannot evade the provisions of Section 195 of the Code
of Criminal Procedure. Nor can the Court bypass the provisions of Section 195 by
choosing to prosecute under a Section of IPC not covered by Section 195, though
in fact the accused is alleged to have committed an offence covered by Section
195 of the Code. However, when a single act of the accused is of such a
character as to amount to two distinct offences, one which is covered by Section
195(1)(a) of the Cr.P.C. and the other which is not, it is open to the person
aggrieved by such act to lodge under Section 190 of the Code is not barred by
the operation of Section 195(1)(a). To hold otherwise would amount to
legislating and adding quite substantially to the language of Section 195 of the
Code, which would not be permissible while interpreting the section. Sections
172-188 of the Indian Penal Code, 1860 referred in Section 195(1)(a) of the Code
of Criminal Procedure, 1973 relate to offences of contempt of lawful authority
of Public Servants, such as - absconding to avoid service of summons, preventing
service of summons, not obeying the legal order of the Public Servant to attend,
not producing a document when so required, knowingly furnishing false
information, refusing to take oath, etc.
Conclusion
One important issue which has risen not only today but many times before is the
security of tenure of key functionaries: of district collectors, of
Superintendents, of Police, and I do recognize that everybody is entitled to ask
for this. No system of Government can deliver if the people can be changed
without notice or with short-term notices. Short tenures do not produce
accountable results. I do recognize the difficulty. This is a matter in which
the Central Government by itself cannot move. The Central Government has to work
with the States. But I do propose to bring this subject before the National
Development Council as an integral part of improving the quality of our
administration, making it more transparent and more accountable. If we are going
to pursue these goals, then it is necessary that our Civil Servants should be
entitled to a minimum security of tenure so that they can be judged whether they
are equal to the task which has been assigned to them or not.
We have now much more resources today in our country to change the world around
us than we had ever before. We have an explosion of ideas. We have a society
that is becoming increasingly more politicized, but also more vigilant. These
are opportunities not available to our predecessor. Therefore, the Public
Servants need to be idealistic enough to take up this challenge of building a
new India free from fear of war, want and exploitation. They should be
innovative enough to look for new opportunities. They must be sensitive enough
to contribute to creating a just and humane society. They ought to be modest and
lead decent but simply life style eschewing conspicuous consumption and
extravagant living. They are supposed to have concern for those who work for us
and inspire them through example. Unless the Public Servants inculcate this
commitment to do excellence at the grassroots level and at the earlier stages in
one’s career in the Civil Service, it will not be possible to create an
environment of growth and development at the national level. As members of the
most prestigious of the Civil Services, they must impart and take afar the
message of seeking a commitment to quality and excellence in the work they do,
in the service of the people of this great country India. Compassion must be
combined with competence. That should be the motto of a meritocracy.
---------------------------------------------------------***********************************----------------------------------------------------------
The author can be reached at :
viveksatyani@legalserviceindia.com |
