Public Servants Vis-a-Vis Penal Laws

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.

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