February 23, 2020
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A Question Of Servility

Legislators are livid at being classified as public servants; critics see an attempt to dodge the law

A Question Of Servility

THE battle has been joined. And the murmurs of resentment among politicians who feel that they, as a class, have been at the receiving end of public and judicial opprobrium have now found an outlet. Its latest manifestation was an officially sponsored all-party meeting in Delhi on November 28 attended, among others, by Sharad Yadav, Sharad Pawar, A.B. Vajpayee, Chandra Shekhar and Somnath Chatterjee. Cutting across party lines, the MPs agreed in principle that the Government must "clarify" the definition of public servant—whether members of Parliament and state legislatures were classified as such.

The implication, of course, was that they were not. And should, therefore, be excluded from the provisions of the Prevention of Corruption Act, 1988 (PCA), if necessary, through an amendment (or an ordinance). The Union Government is under pressure to act. Official sources reveal that Prime Minister H.D. Deve Gowda deputed the United Front Government’s managers, such as Union ministers Ram Vilas Paswan and Srikant Jena, to look for a consensus view among all parties. Even Lok Sabha Speaker P.A. Sangma has gone on record to say that there is a controversy over the classification of legislators as public servants and that the anomalies need to be resolved. The Law Ministry is, in classic officialese, giving the matter its "active consideration". In other words, everybody seems to be waiting to see which way the wind blows.

But the November 28 meeting was only the latest in a series of consultations between parliamentarians on the need, in the words of Congress MP and Kerala unit chief Vyalar Ravi, "to protect our right to work without infringements and harassment". He adds: "These are only the preliminary steps. There is unanimity among individual MPs that the issue must be resolved, though not everybody is agreed on the methods to achieve this end." That was proven with another poser from within the ranks of our legislators. Assuming that MPs and MLAs were to be treated as public servants, as the Orissa High Court had held in its May 1993 judgement in the Habibullah Khan vs state of Orissa case, surely it was only fair that the same rules apply to them as other public servants? The indication was clear—just as it’s necessary to obtain sanction from the appointing authority in order to prosecute public servants for an alleged misdemeanour or corruption while in office, so must it be for legislators. Even if it meant changing the law to create a competent authority (legislators being elected, there is no well-defined appointing authority) where there was none.

Unreasonable? Well, say politicians, that is what we have been pointing out from the beginning. So we are not public servants then, right? "Wrong. They are just trying to hide behind a legal loop hole," says Shanti Bhu-shan, former Union law minister and senior Supreme Court advocate.

"This sort of argument contains an admission on the part of the legislators that most of them are corrupt. There is no doubt that MPs and MLAs are public servants; it is only to escape the provisions of the PCA that this debate has been initiated by them." But what about the point that if legislators are classified as public servants, then the provisions in place to prevent "frivolous or motivated prosecution"—the sanction required for prosecution—should also be applicable to them?

Bhushan points to the fact that legislators cannot be removed from their posts in the manner of other public servants. "This whole business of protecting public servants needs to be done away with. It’s an antiquated concept dating back to the colonial era and has no place today. Let the courts be the judge as is the case for the common man. The safeguards are there." The other point is: what if the legislator has previously been a minister and is charged with corruption or any other misdemeanour during his official tenure? (A minister, at the state or Centre, is a public servant: there is a well-defined appointing authority in each case, the governor and President.) What the legislators seem to be saying is that if they are public servants, then prior permission will have to be sought by an appointing authority which will have to be constituted, with discretionary powers open to abuse, before they can be prosecuted. And if they are not public servants, the provisions of a most significant piece of legislation to prevent corruption in high places—the PCA—should not be applicable to them. "What is being demanded is a licence to loot. And the people of this country must express their anger at this atrocious demand. As for the demand that the safeguards applicable to other public servants be extended to them is concerned, it is just self-interest and cunning cloaked in plausibility," fumes H.D. Shourie, a pioneer in creating awareness about citizens’ rights.

Yashwant Sinha, former finance minister and senior BJP leader, differs. "When the PCA was being piloted through Parliament by P. Chidambaram in 1988 (as minister of state for home), he was asked whether MPs and MLAs were also classified as public servants. And I remember he said that the law was settled in the Antulay case wherein the Supreme Court had ruled that ministers at the state and central level were public servants. Not legislators. But the Orissa High Court had held that MPs and MLAs are public servants and this implies that they can be prosecuted under the provisions of the PCA. This has confused the issue," he says. "Politicians are performing a public service and duty and I don’t think they should be classified as public servants. If, however, they are, then certainly the same safeguards should be applicable as to them.

And it is perfectly above board for Parliament to clarify its intent and MPs to demand it," Sinha adds. "Because as things stand today, legislators are in double jeopardy.

Anyone can accuse them of anything under the sun and unless Parliament decides one way or the other they will be hard put to carry on their work." "In fact, we need to take another look at the entire issue of what rules should govern the acts of MPs (acting in their official capacity) and let Parliament decide on what action needs to taken in the event of any misdemeanour. Otherwise, the jurisdiction of Parliament will have no meaning. Parliament will have to adopt a pro-active approach because the current trend of judicial activism is a direct result of the passivity exhibited by the legislature." And the gloves come off completely when Vyalar Ravi and Janata Dal working president Sharad Yadav make their point. "A petty police officer acting on a bogus petition can make life miserable for us. After all, we are public men and we sign hundreds of letters and meet thousands of people. It is not possible to check everything; the laws are being interpreted in such a way that politicians are being blackmailed and their freedom to work curtailed. I fully support the move to seek a clarification on keeping MPs and MLAs outside the purview of the PCA. If there is any hitch, MPs will make it clear that the provisions for sanction before prosecution need to enacted," says Ravi.

Sharad Yadav, while agreeing with his colleagues from the Congress and BJP, goes a step further. "The point is that legislators have no authority to implement any law they frame. So how can they be public servants? My point is that only politicians are being targeted. The spotlight, though,should equally be turned on the bureaucracy and judiciary. These three institutions have together been running the country for 50 years and have made a mess of it. And the entire issue of corruption needs to be discussed in its totality. In fact, I have a simple suggestion that—if taken up by all parties and acted upon—will show that politicians are the least corrupt. All that is needed is for the government to conduct a survey in the capital cities of India and take note of the amount of land accumulated by politicians, bureaucrats and judges respectively during their tenures."

Not surprisingly, only a handful of politicians are willing to say that they do not support the move by MPs to, in the words of the former Lok Sabha speaker Rabi Ray, "seek immunity on technical grounds". The CPI’s A.B. Bardhan puts it even more succinctly: "Do these MPs even realise what the people will think of them? After all, the legislators who do not want to be described as public servants are the very same who go to the people at every election with folded hands saying ‘we are your servants’! Touche.

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