A public servant will be prosecuted only if she has derived undue advantage for herself or others. Else, any act of commission or omission will amount only to administrative misdemeanour.
It is welcome that the government has issued a new and rational set of instructions that seek to give more protection against arbitrary criminalisation of decisions by public servants and bankers. This must be backed up by vocal political support, desultory, so far. The instructions (read: standard operating procedures, or SOPs), to be followed by investigating agencies for initiating corruption probes against these functionaries, spell out details on what needs to be done before any prosecution permission is sought. The SOP follows an amendment to the Prevention of Corruption Act in 2018, making it mandatory for the police officer to seek prior approval of a relevant authority before initiating a corruption investigation against a public servant, except when the public servant is caught ‘red-handed’ accepting a bribe.
Now, the police officer will need to verify whether a prima facie offence is made out against a public servant and only then make a request for a formal probe. This will provide comfort to bankers to take lending decisions without worrying about being pounced upon by the Central Bureau of Investigation and the Central Vigilance Commission. It will also prevent frivolous charges against them. Ditto for public servants. The SOP covers stage-wise processing of information by a police officer and also specifies the rank (read: the level of seniority) of the police officer to seek prior approval. Only an officer in the rank of Director General of Police or equivalent (director, in the case of CBI) can seek prior approval when the public servants in question are ministers, chief ministers, MPs, judges of the Supreme Court and high courts, and chairpersons and managing directors of public sector units and public sector banks.
A public servant will be prosecuted only if she has derived undue advantage for herself or others. Else, any act of commission or omission will amount only to administrative misdemeanour. This distinction is key. Lending decisions involve judgement of risk, and punishing a banker for a call taken in good faith would be unfair.