“Overkill” by courts and investigative agencies have hampered the country’s growth process in recent years, said Union Finance Minister Arun Jaitley. There’s a need, he said, to revisit certain provisions of the anti-corruption law.

“The overkill coming from various institutions has certainly not helped growth…The environment of suspicion with regard to decision making has to end,” he said while delivering the DP Kohli Memorial Lecture here. The annual function is organised in the memory of the first director of the Central Bureau of Investigation (CBI).

Jaitley said this while referring to CBI investigations being monitored by courts. The Supreme Court has monitored the CBI’s probe into allocation of coal blocks and 2G telecom spectrum, besides other high-profile cases.

The FM’s opinion comes while trial is on over allocation of the Talabira-II coal block in Odisha to a joint venture of Hindalco Industries in 2005, in which former Prime Minister Manmohan Singh (also coal minister at the time of allocation), then coal secretary P C Parakh and leading industrialist Kumar Mangalam Birla were summoned by a trial court. After they approached the SC, the trial court’s order was put on hold. There are charges of criminal conspiracy, breach of trust and of various provisions of the Prevention of Corruption Act (PCA).

Jaitley said the judiciary started monitoring certain cases when it felt these were not being probed appropriately. However, what should have been a rare exception turned into a routine practice, which “squeezed” the discretionary powers of investigators and put them on the defensive.

As a result, he said, decision-making in the government had been hindered and restrained to a “pass-the-parcel game”, wherein officials fear giving their stamp on policy decisions.

“We were earlier told that investigation is police function and courts do not interfere. Today, courts supervise investigations; (this) puts the investigator on the defensive. He then follows the golden rule that if I submit a report (saying) the accused is prima facie not guilty, questions are going to be raised about it and, therefore, the golden rule is that I must somehow make the case and it’s the good luck of the accused to get a fair trial. This process has actually hindered the whole process of economic decision-making,” said Jaitley.

Adding: “Decision making becomes a pass-the-parcel game. (As a result) Rather than I taking the decision, I put a non-committal role and allow the file to move, so that the ultimate decision is not taken by me.”



Also, Jaitley said, the PCA of 1988, the legislation under which CBI conducts most of its investigations, fails to capture the distinction between an act of corruption and an honest error by government officials. “A pre-liberalisation law needs to be re-looked with the changing economic realities,” he said.

Only decisions taken with corrupt motives and not an honest error should be criminally dealt with, said the FM.

Economic decision-making may be trial and error. It may also involve an element of risk-taking. Thus, the Act (should) adequately distinguish between an act of corruption and an act where a decision-maker makes an honest error.?



Jaitley termed many phrases defined in the Act such as public interest, peculiarly advantage, personal interest, etc, as ?vague.? As these terms are capable of more than one construction, he said, it gives the investigator an opportunity to interpret.

He said bureaucrats have to make quick policy decisions and this law was drafted keeping in mind the regulation of the pre-liberalisation era. ?Civil servants are scared that they will be hauled up because of these vague phrases in the 1988 Act, the golden rule that (CBI) investigators follow and this new institution,? Jaitley said.

Jitendra Singh, minister of state in the ministry of personnel, public grievances and pensions, present at the event, said the Union government would "certainly look into the disabling provisions" Jaitley referred to.

In the Hindalco case, the CBI had initially filed a closure report and this was quashed by the court. A fresh probe was sought, examining Singh and other government officials.

In his petition to the SC to quash the summon, Singh had argued that an administrative decision could be ?good or bad? but it was ridiculous to charge him with an act of criminality by alleging it was against public interest and caused loss of revenue to the exchequer.

PASSING THE PARCEL