Investigations are not inquisitions | The Financial Express

Investigations are not inquisitions

Investigators rush to give soundbites, even before the charges are framed. The blame lays with the leadership, who want to project zero tolerance to corruption without waiting for the final outcome of an investigation

Investigations are not inquisitions
While recognising the need for special investigative methods such as undercover operations in organised crime and corruption cases, European courts draw a clear line against incitement. (Representative image)

By Mallika Mahajan & Pawan Kumar Sinha

Corruption infringes the human rights of the general populace and analogously, the anti-corruption fight should grant the same rights to the accused. In recognition of the latter, the Indian Constitution grants the accused the right to a hearing before an independent legal authority, access to all prosecutorial evidence, presumption of innocence, access to a reasoned order, and of appeal. Therefore, the death of the young son of an IAS officer in Punjab is disquieting, considering that the matter was only at the investigation stage.

We are not delving into organisational misbehavior by the local state officials such as whether they submitted themselves to search at the accused’s house, and why they did not take possession of the licensed firearm found on the premises. This is for their organisation to investigate. We are concerned with the death of a human being in an anti-graft investigation. We also recall the suicide by a wife and a daughter to escape the stigma stemming from the corruption investigation against their husband/father. An industrialist also died of suicide because of his inability to withstand pressures from the tax authorities.

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Repercussions of anti-graft cases are not always a cause for celebration. In some cases, the campaign against corruption becomes a victim to the law of unintended consequences. This happens when the investigators, in a zeal to win brownie points with their superiors, rush to give soundbites, even before the charges are framed. The blame lays with the leadership, who want to project a zero tolerance to corruption, without waiting for the final outcome of an investigation. Germans calls this Der Fisch stinkt vom Kopf her, or the stinking of the fish starts from the head. Elizabeth Umphress & John Bingham have called this unethical pro-organisational behaviour or UPB. This term is used to indicate employees’ behavior that breaches ethical conduct ‘supposedly’ to advance the organisational interests. Examples include withholding negative information about one’s company/products to benefit one’s organisation, falsifying financial information to make one’s organisation look good, taking pro-revenue decisions even if they go against law and/or legal precedents etc. Abusive leaders rely on their positional power to influence the employees to indulge in UPB. The employees use UPB as an impression management strategy and undertake it to advance the supervisor-subordinate relationship for economic benefits such as unfair performance ratings, bonus payments, and choice postings. UPB is obviously harmful to the organisational long-term interests. A mature officer, in this case, rather than falling prey to the UPB, would have been mindful of the organisational goals, and tactfully handled an excited youth. Organisations should provide adequate training programs to help leaders to prevent abusive supervision and enable employees to meet organisation goals without engaging in UPB.

P Chindambaram, in ‘Process is the Punishment’, Financial Express, July 24, 2022, has highlighted the baneful effects of indiscriminate arrests, long trials and denial of bail as a rule rather than as an exception. We agree that the length of proceedings must be short for both the determination of charges and the trial.

Additionally, we recommend the adoption of international best practices by the investigative agencies. While recognising the need for special investigative methods such as undercover operations in organised crime and corruption cases, European courts draw a clear line against incitement. Investigators, including undercover agents, must not expand the investigator’s role to that of agents provocateurs. The principle of immediacy, is another safeguard, that provides the possibility of the accused to be confronted with the witness in the presence of the judge who ultimately decides the case. The demeanour and credibility of a witness observed by the court can have important consequences for the accused. Plea bargaining should be introduced in corruption cases. In this the accused receives a reduced charge in exchange for a guilty or nolo contendere plea or for providing substantial cooperation with the investigative authority. But most of all, prejudicial publicity should be avoided as it may adversely impact both the impartiality of the court and the presumption of innocence of the accused.

Closely linked to the presumption of innocence is the right to privacy of accused persons. German courts have banned the publication of images that identify an accused during the investigation. Investigation should not make the accused or the family, in Michael Jackson’s words, “a victim of shame”.

Prejudicial publicity and the loss of lives does not also serve the State’s interests as it leads to loss of vital evidence and witnesses. The accused and the family must be handled sensitively during raids as at this stage the charges are neither framed nor proved. As it happens, in many cases the accused is found innocent after years of trial. A final suggestion is that the investigating team should have on standby the services of a counselor, to be called in on particularly fraught situations. Investigation is both an art and a science.

The authors are Respectively, Austria-based international anti-corruption expert, and director, International Anti-Corruption Academy, Austria

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