Kerala HC Moots Law To Prevent Vexatious Litigations; Issues Guidelines For Investigation In Corruption Cases [Read Judgment]
“Executive actions of the Government in carrying out the decisions of the Cabinet will also come within the purview of sovereign functions. Such functions cannot be the subject matter of enquiry or investigation under the P.C. Act, unless the executive action or administrative action individually involves elements of corruption or criminal misconduct on the part of any public servant.”
Rejecting a ‘corruption’ complaint against former Home Minister of Kerala Ramesh Chennithala, the High Court of Kerala has emphasised the need of a law to prevent vexatious litigations and also issued guidelines in the matter of investigations by Vigilance and Anti-Corruption Bureau and Police Department in corruption matters.
The allegation against the former Home Minister and Chief Minister pertained to an appointment of the director of the VACB. Paichira Navas, state president, Peoples’ Forum For Anti-Corruption Drive, had alleged that though promotion was given to the police officers as decided by the Cabinet, it was in prosecution of a design hatched by the then Home Minister with the involvement of the Chief Minister to bypass some senior police officers who had a better claim for posting as Director of Vigilance, and the then government was very particular to post the said officer as Director of the VACB.
Justice P. Ubaid observed that promotion granted to public servants by the government, or by any officer or agency under the government, cannot be a subject matter of litigation or enquiry or investigation at the instance of members of the public.
Rejecting the complaint observing that it is without any basis, the court said: “The Government collectively took a decision to grant promotion to four Police Officers, and this was approved and maintained by the successor Government also. There is no reason why the 2nd respondent filed complaint against the Chief Minister and the Home Minister when the promotion was granted collectively by the Cabinet. Anyway, whatever be the circumstance of promotion, or if at all, there was any irregularity in the promotion granted by the Government, it is a collective decision taken by the Government in the exercise of the prerogative under the law, and if anybody has grievance as regards the promotion given to any officer, the right remedy is to approach the competent judicial Forum. It cannot be the subject matter of an investigation under the P.C. Act.”
It is high time we made a law for the prevention of vexatious litigations
Justice Ubaid noted that there is no uniform law in Kerala to prevent vexatious litigations and the Vexatious Litigation (Prevention) Act 1949 (Madras) will not apply to the parts of Kerala other than the erstwhile Malabar area. It was also observed that though a Bill was introduced in 1994 as the Kerala Vexatious Litigation (Prevention) Bill, it got lapsed.
Taking note of the fact that the complainant in this case has filed about 45 cases against different persons, the court said: “It is here, the necessity of a legislation assumes importance. It is high time we made a law for the prevention of vexatious litigations. This Court hopes and expects that the Government of Kerala would take the matter very seriously and take necessary steps immediately to bring such a legislation.”
Identify False/Vexatious Complaints
The court observed: “The VACB or the Police can step in for necessary action including investigation under the P.C Act, only when a definite offence under the P.C Act is revealed and disclosed, and the allegations of such corruption or misconduct are substantiated by materials. The VACB or the Police and also the Special Courts functioning under the P.C Act must be able to identify false or vexatious complaints brought for publicity or for personal gain, and genuine complaints brought for honest prosecution on the basis of definite materials substantiating the allegations of corruption and misconduct. The VACB and the Police are cautioned that if any unnecessary enquiry or investigation proceeds on baseless complaints, that will cause harassment to the public servants, and it will have atrocious consequences causing blemish on the entire career of public servants.”
Investigation Agencies cannot probe into the propriety of the law passed by the legislature
Taking note of an instance where the Annual Budget and the Finance Bill passed by the Legislature was challenged by way of complaint before the VACB, the court said: The legislature can pass any law as authorised by the Constitution, and it will definitely be a product of the majority decision of the House or the wisdom of the House. If at all, such a legislation involves anything for interference on the grounds accepted by the Constitution of India, the constitutional courts will look into the matter, examine the law, and take necessary decision. Such areas cannot be intruded into by the investigating agencies. Our set up is a democracy governed by rule of law, and governance is made by a Government elected by the people. The investigating agencies cannot in any circumstance probe into the propriety of the law passed by the legislature.”
Administrative Decision Or Policy Decisions Can’t Be The Subject Of Investigation Under The P.C. Act
It also said: “In any area where administrative decision or policy decision of the Government is involved, that cannot be the subject of investigation under the P.C Act. If the decision of the Government is against the existing laws, or against public policy, or against the society at large, we have a constitutional set up to examine such things, take decisions and correct the wrong decisions or actions. Anyway, such policy decisions or administrative decisions or administrative matters cannot be subjected to enquiry or investigation under the P.C Act, unless it involves any individual case of corruption or criminal misconduct as defined under the P.C Act. In individual instances of administrative actions by public servants the Police machinery can conduct enquiry or investigation under the P.C Act subject to the new Section 17A, if the act or conduct of the public servants involves elements of corruption or misconduct as defined under the law.”
Prove Corresponding Gain By Public Servant/Someone In Cases Of Loss To Public Exchequer
The court also said that mere instances of malfeasance or wrong administration or wrong discharge of functions or dereliction of duty will not cause a prosecution under the P.C. Act. “What is required for a prosecution is not simply that the Government or any Department of the Government or any Public body has sustained any loss. While proving such loss, the prosecution will have also to prove that a corresponding gain was made by the public servant or somebody else in whom he is interested or with whom he has vicious nexus. Just because some loss was caused to the Government or the Public Exchequer or to any public sector undertaking or corporation or public body, by the discharge of functions of a public servant, he cannot be prosecuted under the P.C. Act.”
Concept of participative supervision
The court also added: “In the investigation in corruption cases, the concept of participative supervision must be applied. This means that every investigation must be a team work, monitored and supervised by the superior officers. Crimes can be registered and investigation can be made under the P.C Act only in cases where elements of corruption or misconduct are revealed or disclosed.”
Justice Ubaid summarised the guidelines issued as follows: “If what is involved is only wrong administration or discharge of functions without obtaining or causing any undue advantage or monetary benefit, what is possible is only disciplinary action and departmental proceedings including steps to recover the amount of loss caused by the public servant. The VACB is not expected to make recommendations to the Government in the form of directions as is done in this case by the Inspector of the VACB in his report of preliminary enquiry. Whenever the necessity of disciplinary action including recovery of money is felt by the VACB on enquiry or investigation, this fact can only be reported to the Government, but the VACB cannot make recommendatory directions to the Government as was done in this case by the Inspector. Legislation is a sovereign function. Executive actions of the Government in carrying out the decisions of the Cabinet will also come within the purview of sovereign functions. Such functions cannot be the subject matter of enquiry or investigation under the P.C. Act, unless the executive action or administrative action individually involves elements of corruption or criminal misconduct on the part of any public servant.”Read the Judgment here