An appeal to Supreme Court to restore balance back!
To
Hon'ble Chief Justice Shri S.H. Kapadia
Supreme Court
New Delhi
Sir,
Sub: Fast eroding institutional credibility in IAS and other organised services and the constitutional positions of Prime Minister, Cabinet Ministers as well as Chief Minsters in states.-A prayer for your kind consideration from an anguished ex government servant and citizen of India.
The recent incidents of CBI arresting Home Secretary of a State or Principal Secretary for purpose of "investigation" and sending them to jail as if they are criminals with history sheets, and then threatening Minsters indirectly with arrest and jail and actually doing the same to even a working Chief Minster, all are adding up to a situation where soon similar fate can fall on the Judges of courts too .
With steady erosion of credibility in the systems, honest person like Anna Hazare, could mobilise millions of citizens across the country, creating practically some kind of mob fury,which may take an ugly turn next time demanding for "lynching the criminals ruling us" call.
It is not a very pleasant situation.
It is very difficult to assume and mathematically highly improbable that CBI is staffed by purest of pure and perfect humans of the country. They too are typical sample of a mix of honest, dishonest, courageous or cowardice prevailing individuals.
So what we need is a systemic correction of existing system of our governance & rules there of, such that we preserve honesty and integrity of the system , even though the humans who man, may compose of all types : some honest. some weak and willing to be seduced, some totally dishonest etc.
We are always thinking of strengthening the law and then investigation powers and prolonged court cases , only after crime is committed. Further for crimes based entirely in written documents and files, criminal procedure code provisions of arresting and interrogation techniques to admit crime are being used, which you agree is ridiculous. Oral or written affidavits submitted which go contrary to facts available in documents in file which are all duly signed earlier, do not stand in a court of law.
So white collar crimes do not need the brutal show of force of the police manning the CBI, putting up a light and sound show for media and then courts wasting time dealing with bail petitions. Then after one year of leisurely work of creating thousands of pages of practically useless statements by thousands of witnesses, carried in 7 or 8 steel trunks, again showed on TVs, the alleged culprit is finally granted bail reluctantly. No conviction. But yes case is now filed.
What is the result? For a regular alleged criminal involved in murder or rape it is fine. he just brushes off this incident and may be even becomes a MLA or MP. Until proven guilty he is said to be innocent. So he can be Minster too. It happened in India. Continues to happen.
But organised services are different. They are mere servants and the political class has a leverage of ordering and controlling them and it is not a level playing field. Some do stand up but suffer humiliation finally. After a few examples many fall in line. Towing the line, they do the bidding of the boss, the Minister. Soon, mental conditioning makes them see what boss wants and then offer to do the same, to gain promotions.
Some honest persons, will boost the value of the estimates and execute projects at four times the cost, building in the benefits for the Minsters. The superior intelligence of the academically brilliant officer is now fully abused to the benefit of the political class, but at the same time the officer tries to do some good to the society because he is a good man. So you may get wonderful working infrastructure or poverty alleviation programme, even though , you end up paying 4 to 5 times the real cost to deliver the service.
It is happening even today. Intellectuals are caught in a web. Finally the discontent in the country gives rise to the Anna Hazare movement which shows their total distrust in our functioning of democracy.
Isn't it dangerous?
Today when I see the young idealists who joined service like IAS, who worked hard to reach top rungs, and then were made to compromise their principles over the period of service, I feel so sad- what did we do to our young boys and girls who were so brilliant to compete and get selected to premiere services of India? We destroyed their personalities. A police constable on the road who salutes them previous day, nonchalantly , leads them in to Chanchalaguda jail , goes back home and with a sigh tells his family , what kind of rogues are becoming IAS officers.
It is not enough for the Ministers to assure agitated officers, that only the guilty should be afraid and others they will take care of ! What a ridiculous situation!
How one can say Srilakshmi for instance is guilty? No one has proven her to be guilty! But she suffers the humiliation in full view of cameras! Same is the story about BP Acharya! A Home Secretary too! His own policeman throws him in jail! Not yet pronounced guilty of course- but damage complete. Investigation and interrogation is the justification for the IPS officer calling himself CBI.
What interrogation? File speaks in government. No other evidence is admissible. What is there to personally investigate an individual? What is in his brain not on file, is of no use. Whether the officer is in or out, the files confiscated cannot be influenced. What is the specious argument that the "officer out of the jail will influence the witness"? A murder criminal may threaten a wn eye witness to with draw statements made. But whatever you may threaten, file wont change. it is already in safe custody of CBI.
Lack of intelligence is telling on the way the criminal procedure code is used for this kind of white collar crimes. Neither industrialist nor a bureaucrat, should be ever arrested for investigation. Files and documents should be confiscated and research and analysis should establish beyond doubt the culpability.
After filing the charge sheet, court should get the parties involved summoned and their advocates can argue out the case, again based on the documents.
There is never a need to call the alleged persons. Only after hearings are over and sentence has to be pronounced, the court should summon the party involved , pronounce the sentence, and then only , once pronounced guilty, the police should take the person into custody and jail him.
So till the trials are over and the sentence is ready to be pronounced, the investigating authority has no business in humiliating a person who is not yet proven guilty by taking him all the way to court and then jail exposing to media attention and destroying his decades long earned reputation and social life. The prestige of the service is too badly damaged.
It is actually more criminal on the part of investigating authorities, to abuse the powerful Cr Pr. Code methods against alleged white collar criminals when all the required legally admissible evidence is already present in files and documents. Whatever else additional paper work they produce in trunk loads as statements of witnesses adds no real value. They just are wasting time, apart from enjoying the media importance and settling scores some inter service rivalry.
But even more damaging and very serious is complete destruction of image and prestige of the services. None of the officers who are accused can be said to have acted with criminal intent unless proven beyond doubt in a court of law.
For example when a Secretary writes on file with own hand writing or dictation, for Minster's approval it has that person's hundred percent application of mind. But when after Minster approves, the Govt order is issued, normally some office help prepares the order, scrutinised at least by two lower levels with their appended signatures, and then Secretary looking at the signatures clears the order. it is possible a genuine clerical error at lower level or a wanton criminal intent by a compromised lower staff, quietly drops a word or comma, while the entire order looks sound, leaving a loophole, hurting public interest. But this can be checked and proven in a court of law. The files speak for themselves. There is no point in an investigating officer asking a person who wrote on the file for what he wrote, why he wrote. His answer adds no value. the evidence is irrefutable. The statement after the event does not in any way absolve him for he wrote. But the fact of what he himself wrote, should make his mind and intent clear. One can hold the officer squarely responsible for any such note against public interest. Issue of final order not reflecting Secretary's intention, may contain errors or omissions, may be inadvertent or intentional. We need a check and balance here.
It is unfair for a Secretary or Home Secretary or a Minister to be treated as de facto criminal based on the judgment of the investigating agency. To add to insult to injury holding them captive for investigation is truly ridiculous for this type of file or document based cases. It is unfair for the head of Satyam to have been kept in jail and destroy his life even before pronouncement of judgment. And this was case where the man came to Police with admission and acting whistle blower himself! It was not even a case of brilliant investigation work of CBI or CVC, He himself came forward to tell about what happened. The what did we do? Next time such persons will not dare to admit anything voluntarily themselves. Like in USA, we could have started trials and sentenced the culprit to the punishment as due.
In these things we have done tremendous damage to both governance and the trust of public in the system.
My submission is for white collar crimes we should review how the Cr Pr code is applied and how an investigating agency should function
Secondly- how to preserve the honesty and integrity of the youngsters joining the service with great hopes to serve our beloved nation.
The poison is in the shroud of secrecy, we allow for files. Every file in the government is automatically kept protected under Official Secrets Act. Once the order is made public, what is the rationale for keeping the file locked up in secrecy? That means we have some dark secrets to hide? We need this facility so that we are free to operate in dark? Any activity which requires dark alleys, can be only smuggling and mugging.
While the process is on, it is understandable, that file may remain within government circles, but once. the order to be made public is finalised and ready for issue, for public knowledge, the file with all noting should also be public. There is no divine or constitutional right for the government to keep the file secret. It is just a bureaucratic old habit of British regime. They had reasons- because they were working against our nation's interest but in their administrative interest.
But not after independence. Our young men in service are acting in national interest. Administrative interest and national interest cannot be divergent after independence.
It is time IAS opens their eyes. They should now make all files webposted along with the order. They get tremendous protection in working with honour. Any wrong order against public interest immediately gets challenged with full file details in a court of law and IAS also gets saved , even before the crime occurs. This way our democracy becomes fully participatory. The public interest this way gets assured.
The RTI actually bloated the bureaucracy involved and endangered many a life of innocents till now, though with limited results.
By opting to keep files secret, finally the nation has paid a very high price in all the scams which blew the lid off. The damage is not contained. It is hurting the very image of the respected icons of services and the Parliament too.
Just being indifferent and allowing the rot to continue will see finally kangaroo courts taking over I fear. Mob fury can become uncontrollable Anna was too great a person and the entire mobilisation was peaceful. But it can be different too when lower ranks of police may join and the rulers will not have time even to regret.
In the interest of restoring back dignity of our organised service, governance, Parliament now I appeal to the final pillar of our democracy still keeping own credibility and dignity to take urgent action as deemed fit in your wisdom Sir!
Pray in public interest for urgent directions on:
1. We must quickly act and stop this humiliation of IAS and the constitutional positions by laying down norms for application of Cr.Pr.Code for crimes purely based on documents, on the powers of investigating agencies.
2. We must allow real time check by citizens on our governance to assure that government is for public interest, by web posting complete file with the government order meant for public.
With warm and deep regards ,
B. Rajaram. Dt 5th Feb.2012
Hon'ble Chief Justice Shri S.H. Kapadia
Supreme Court
New Delhi
Sir,
Sub: Fast eroding institutional credibility in IAS and other organised services and the constitutional positions of Prime Minister, Cabinet Ministers as well as Chief Minsters in states.-A prayer for your kind consideration from an anguished ex government servant and citizen of India.
The recent incidents of CBI arresting Home Secretary of a State or Principal Secretary for purpose of "investigation" and sending them to jail as if they are criminals with history sheets, and then threatening Minsters indirectly with arrest and jail and actually doing the same to even a working Chief Minster, all are adding up to a situation where soon similar fate can fall on the Judges of courts too .
With steady erosion of credibility in the systems, honest person like Anna Hazare, could mobilise millions of citizens across the country, creating practically some kind of mob fury,which may take an ugly turn next time demanding for "lynching the criminals ruling us" call.
It is not a very pleasant situation.
It is very difficult to assume and mathematically highly improbable that CBI is staffed by purest of pure and perfect humans of the country. They too are typical sample of a mix of honest, dishonest, courageous or cowardice prevailing individuals.
So what we need is a systemic correction of existing system of our governance & rules there of, such that we preserve honesty and integrity of the system , even though the humans who man, may compose of all types : some honest. some weak and willing to be seduced, some totally dishonest etc.
We are always thinking of strengthening the law and then investigation powers and prolonged court cases , only after crime is committed. Further for crimes based entirely in written documents and files, criminal procedure code provisions of arresting and interrogation techniques to admit crime are being used, which you agree is ridiculous. Oral or written affidavits submitted which go contrary to facts available in documents in file which are all duly signed earlier, do not stand in a court of law.
So white collar crimes do not need the brutal show of force of the police manning the CBI, putting up a light and sound show for media and then courts wasting time dealing with bail petitions. Then after one year of leisurely work of creating thousands of pages of practically useless statements by thousands of witnesses, carried in 7 or 8 steel trunks, again showed on TVs, the alleged culprit is finally granted bail reluctantly. No conviction. But yes case is now filed.
What is the result? For a regular alleged criminal involved in murder or rape it is fine. he just brushes off this incident and may be even becomes a MLA or MP. Until proven guilty he is said to be innocent. So he can be Minster too. It happened in India. Continues to happen.
But organised services are different. They are mere servants and the political class has a leverage of ordering and controlling them and it is not a level playing field. Some do stand up but suffer humiliation finally. After a few examples many fall in line. Towing the line, they do the bidding of the boss, the Minister. Soon, mental conditioning makes them see what boss wants and then offer to do the same, to gain promotions.
Some honest persons, will boost the value of the estimates and execute projects at four times the cost, building in the benefits for the Minsters. The superior intelligence of the academically brilliant officer is now fully abused to the benefit of the political class, but at the same time the officer tries to do some good to the society because he is a good man. So you may get wonderful working infrastructure or poverty alleviation programme, even though , you end up paying 4 to 5 times the real cost to deliver the service.
It is happening even today. Intellectuals are caught in a web. Finally the discontent in the country gives rise to the Anna Hazare movement which shows their total distrust in our functioning of democracy.
Isn't it dangerous?
Today when I see the young idealists who joined service like IAS, who worked hard to reach top rungs, and then were made to compromise their principles over the period of service, I feel so sad- what did we do to our young boys and girls who were so brilliant to compete and get selected to premiere services of India? We destroyed their personalities. A police constable on the road who salutes them previous day, nonchalantly , leads them in to Chanchalaguda jail , goes back home and with a sigh tells his family , what kind of rogues are becoming IAS officers.
It is not enough for the Ministers to assure agitated officers, that only the guilty should be afraid and others they will take care of ! What a ridiculous situation!
How one can say Srilakshmi for instance is guilty? No one has proven her to be guilty! But she suffers the humiliation in full view of cameras! Same is the story about BP Acharya! A Home Secretary too! His own policeman throws him in jail! Not yet pronounced guilty of course- but damage complete. Investigation and interrogation is the justification for the IPS officer calling himself CBI.
What interrogation? File speaks in government. No other evidence is admissible. What is there to personally investigate an individual? What is in his brain not on file, is of no use. Whether the officer is in or out, the files confiscated cannot be influenced. What is the specious argument that the "officer out of the jail will influence the witness"? A murder criminal may threaten a wn eye witness to with draw statements made. But whatever you may threaten, file wont change. it is already in safe custody of CBI.
Lack of intelligence is telling on the way the criminal procedure code is used for this kind of white collar crimes. Neither industrialist nor a bureaucrat, should be ever arrested for investigation. Files and documents should be confiscated and research and analysis should establish beyond doubt the culpability.
After filing the charge sheet, court should get the parties involved summoned and their advocates can argue out the case, again based on the documents.
There is never a need to call the alleged persons. Only after hearings are over and sentence has to be pronounced, the court should summon the party involved , pronounce the sentence, and then only , once pronounced guilty, the police should take the person into custody and jail him.
So till the trials are over and the sentence is ready to be pronounced, the investigating authority has no business in humiliating a person who is not yet proven guilty by taking him all the way to court and then jail exposing to media attention and destroying his decades long earned reputation and social life. The prestige of the service is too badly damaged.
It is actually more criminal on the part of investigating authorities, to abuse the powerful Cr Pr. Code methods against alleged white collar criminals when all the required legally admissible evidence is already present in files and documents. Whatever else additional paper work they produce in trunk loads as statements of witnesses adds no real value. They just are wasting time, apart from enjoying the media importance and settling scores some inter service rivalry.
But even more damaging and very serious is complete destruction of image and prestige of the services. None of the officers who are accused can be said to have acted with criminal intent unless proven beyond doubt in a court of law.
For example when a Secretary writes on file with own hand writing or dictation, for Minster's approval it has that person's hundred percent application of mind. But when after Minster approves, the Govt order is issued, normally some office help prepares the order, scrutinised at least by two lower levels with their appended signatures, and then Secretary looking at the signatures clears the order. it is possible a genuine clerical error at lower level or a wanton criminal intent by a compromised lower staff, quietly drops a word or comma, while the entire order looks sound, leaving a loophole, hurting public interest. But this can be checked and proven in a court of law. The files speak for themselves. There is no point in an investigating officer asking a person who wrote on the file for what he wrote, why he wrote. His answer adds no value. the evidence is irrefutable. The statement after the event does not in any way absolve him for he wrote. But the fact of what he himself wrote, should make his mind and intent clear. One can hold the officer squarely responsible for any such note against public interest. Issue of final order not reflecting Secretary's intention, may contain errors or omissions, may be inadvertent or intentional. We need a check and balance here.
It is unfair for a Secretary or Home Secretary or a Minister to be treated as de facto criminal based on the judgment of the investigating agency. To add to insult to injury holding them captive for investigation is truly ridiculous for this type of file or document based cases. It is unfair for the head of Satyam to have been kept in jail and destroy his life even before pronouncement of judgment. And this was case where the man came to Police with admission and acting whistle blower himself! It was not even a case of brilliant investigation work of CBI or CVC, He himself came forward to tell about what happened. The what did we do? Next time such persons will not dare to admit anything voluntarily themselves. Like in USA, we could have started trials and sentenced the culprit to the punishment as due.
In these things we have done tremendous damage to both governance and the trust of public in the system.
My submission is for white collar crimes we should review how the Cr Pr code is applied and how an investigating agency should function
Secondly- how to preserve the honesty and integrity of the youngsters joining the service with great hopes to serve our beloved nation.
The poison is in the shroud of secrecy, we allow for files. Every file in the government is automatically kept protected under Official Secrets Act. Once the order is made public, what is the rationale for keeping the file locked up in secrecy? That means we have some dark secrets to hide? We need this facility so that we are free to operate in dark? Any activity which requires dark alleys, can be only smuggling and mugging.
While the process is on, it is understandable, that file may remain within government circles, but once. the order to be made public is finalised and ready for issue, for public knowledge, the file with all noting should also be public. There is no divine or constitutional right for the government to keep the file secret. It is just a bureaucratic old habit of British regime. They had reasons- because they were working against our nation's interest but in their administrative interest.
But not after independence. Our young men in service are acting in national interest. Administrative interest and national interest cannot be divergent after independence.
It is time IAS opens their eyes. They should now make all files webposted along with the order. They get tremendous protection in working with honour. Any wrong order against public interest immediately gets challenged with full file details in a court of law and IAS also gets saved , even before the crime occurs. This way our democracy becomes fully participatory. The public interest this way gets assured.
The RTI actually bloated the bureaucracy involved and endangered many a life of innocents till now, though with limited results.
By opting to keep files secret, finally the nation has paid a very high price in all the scams which blew the lid off. The damage is not contained. It is hurting the very image of the respected icons of services and the Parliament too.
Just being indifferent and allowing the rot to continue will see finally kangaroo courts taking over I fear. Mob fury can become uncontrollable Anna was too great a person and the entire mobilisation was peaceful. But it can be different too when lower ranks of police may join and the rulers will not have time even to regret.
In the interest of restoring back dignity of our organised service, governance, Parliament now I appeal to the final pillar of our democracy still keeping own credibility and dignity to take urgent action as deemed fit in your wisdom Sir!
Pray in public interest for urgent directions on:
1. We must quickly act and stop this humiliation of IAS and the constitutional positions by laying down norms for application of Cr.Pr.Code for crimes purely based on documents, on the powers of investigating agencies.
2. We must allow real time check by citizens on our governance to assure that government is for public interest, by web posting complete file with the government order meant for public.
With warm and deep regards ,
B. Rajaram. Dt 5th Feb.2012
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