The Supreme Court demands exceptional courage from officers to resist pressure from above.
In a familiar scene in Indian movies, the interrogation of a well-connected criminal is abruptly stopped when the police officer gets a call from some higher-up in the hierarchy. The moral dilemma involved in obeying unethical commands was explored in the famous Yale University study (‘Milgram experiments’), in which it was found that most humans would follow directives of their superiors even if they are amoral and cause harm to others.
Despite the widespread prevalence of this human weakness, the problem remains below the surface as none of the players either admit it or leave evidence of it. But in extreme or exceptional cases, the truth breaks outs. It might even make it to the Supreme Court. Last month, the court encountered one such case involving the assessment of income tax of a company. The court ordered reopening of the assessment as it suspected that the officer concerned had acted under pressure from her superior (CIT vs Greenwood Corporation).
Judges, at all levels, come across such instances but as it is considered part of social behaviour, they do not write about their experience in their judgments. If at all, they couch it in euphemisms like “extraneous considerations” or “non-application of mind”. However, there have been several instances in which the Supreme Court has admonished officers for succumbing to pressure from above and doing illegalities irrespective of the harm done to individual citizens.
In one of the earliest cases, Commissioner of Police vs Gordhandas (1951), a person was initially granted permission by the police to build a cinema hall in Mumbai. But later, the Commissioner of Police informed him that the government had cancelled it. Under the Police Act, the government had no such power and the commissioner had absolute discretion. When the licencee moved the Supreme Court, it ruled that he still held a valid permit.
The Supreme Court was more vocal in Tarlochan Singh vs State of Punjab (2001). In this case, the elected president of a municipal council was removed from his post by an order of the principal secretary to the state government. Striking down the government’s order, the court said: “In the system of Indian democratic governance as contemplated by the Constitution, senior officers occupying key positions such as secretaries are not supposed to mortgage their own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall, in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior.”
In a Tada case, Anirudhsinhji Jadeja (1995), the court emphasised that a statutory authority vested with jurisdiction must exercise it according to its own discretion: “Discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether.” The order of the chief minister to grant a stage-carriage permit to a party apparatchik was struck down by the Supreme Court in Prachan Chand vs Himachal Pradesh (2008). The transport commissioner’s powers could not be usurped by the chief minister.
More From This Section
The Supreme Court, in Purtabpur Company vs Cane Commissioner of Bihar (1970), prevented interference of the government in the power exclusively conferred on the cane commissioner. “While exercising that power he cannot abdicate his responsibility in favour of anyone — not even in favour of the state government or the chief minister. It was not proper for the chief minister to have interfered with the functions of the Cane Commissioner.”
The latest case (Greenwood Corporation) involved the tax assessment of a Himachal Pradesh company. The assessing officer accepted the returns filed by the company, and wrote extensively in an attached note that she did so according to instructions from the commissioner. Apparently, she left no doubt about her respect for him, calling him “worthy” commissioner several times in the note. However, that worthy officer was soon transferred, and the new incumbent found a long list of improprieties in the assessment.
All these were pointed out by the revenue authorities to the Supreme Court which ordered the reassessment with the following remark: “When a statute provides for different hierarchies providing for forums in relation to passing of an order as also appellate or original order; by no stretch of imagination a higher authority can interfere with the independence which is the basic feature of any statutory scheme involving the adjudicatory process.”