Prevention of Corruption Act, amendment bill
(Criticism)
The flaws in the bill
- The bill dilutes and defeats the entire point of anti-corruption legislation in many ways.
- The bill proposes to narrow down the existing definition of corruption, increase the burden of proof necessary for punishing the corrupt thereby making things more difficult for whistle-blower and strengthen the shield available to officials accused of corruption.
- The bill also has clauses that would protect politician-bureaucracy nexus from anti-corruption probe.
Narrowing definition
In existing act, Section 13(1)(d) covers various indirect forms of corruption including the obtaining of “any valuable thing or pecuniary advantage” by illegal gratification or by “abusing his position as a public servant”.
The present amendment removes this section and replaces it with shortened definition of criminal misconduct by a public servant. It includes fraudulent misappropriation of property under one’s control and intentional, illicit enrichment and possession of disproportionate assets.
In this new definition, any benefit that is not economic, that is indirect or that cannot be proven to be intentional fraud will not be punished as corruption.
However, the Law Commission which studied this proposed amendment rejected it and proposed a widened definition: any “undue advantage” that results from “improper performance of public function or activity” of a public servant should be punishable. Yet the government and the Parliamentary Committee disregarded this suggestion.
Importance of the section: it is a critical section which deals with corruption in high places where typically no under-the-table transactions take place.
A corrupt public servant usually receives illegal gratification in an extremely clandestine manner such as off-shore transactions or non-monetary considerations such as a better posting, post retirement benefits, etc.
Major scams such as Bofors, 2G, commonwealth games scam, coal scam etc. had become criminal offences because of this section only.
This is the reason why a section of bureaucrats have demanded to remove the section on the ground that it hinders fearless decision-making that may involve exercise of discretion and bona fide errors.
This cannot be termed true as a retired Cabinet Secretary, TSR Subramanium, known for his integrity, has repeatedly said that the existing laws offer adequate protection to honest officers where no officer is punished on basis of any bona fide difference or even mistake unless it is a clear abuse of power leading to financial or other gains.
Give more proof
Under the current bill, the possession of monetary resources or property disproportionate to the public servant’s known sources of income is enough to prove corruption.
The “known sources of income” are limited only to those receipts which had been “intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant”.
This provision was made in 1988 in order to cover an earlier loophole wherein many accused persons would cite fresh sources of income at the stage of trial, resulting in acquittal in a large number of disproportionate assets cases.
But, the amendment bill makes it more difficult to prove someone guilty of disproportionate assets as it asks for more proof. The prosecutor has to now prove that the disproportionate asset was acquired with the intention of the public servant to enrich himself illicitly.
More risk for bribe giver
Currently, if a person makes a statement during a corruption trial that he gave a bribe, it would not be used to prosecute him for the offence of abetment of corruption.
But the amendment bill omits this provision and proposes that bribe-taking and bribe-giving will be equally punishable.
This would surely deter bribe giver to appear as witnesses in cases against public officials.
Though it is right step in the direction of not giving the bribe-giver complete immunity, but there should have been other way of solving it instead of removing the provision.
The 2nd ARC had recommended a distinction between “coercive” and “collusive” bribing. Those who are coerced into bribing but report it thereafter should be given some protection. Also, there can be a seven-day window for declaration by the bribe-giver in order to qualify for exemption.
But such alternates were rejected and the final proposal included punishment for all and thereby reduced chances of evidence against the bribe-taker.
Prosecution of corrupt
Under the existing act, the government’s or higher officials’ sanction is required before prosecution of any serving public servants. The idea was to protect honest public officials from harassment, persecution and frivolous litigation.
The proposed amendment bill extends this protection to retired public servants, if the case pertains to the period when they were in office. This is a reasonable addition to existing provision.
But another additional provision says that if a private person approaches the government for sanction to prosecute a public servant for corruption, he would now need a court order to this effect.
With this additional layer of protection, the victims of corruption and anti-corruption activists would be discouraged to prosecute the corrupt civil servants.
A new provision
The government has added a most diabolic provision, Section 17A that would bar investigating agencies from even beginning an inquiry or investigating the offences under this Act without prior approval.
The government had proposed that such sanction would have to be obtained from a Lokayukta or Lokpal. But the Select Committee of Rajya Sabha shifted the power to give this sanction to an “authority competent to remove” the person from office.
This means that the political masters will decide whether they wish to allow a corruption inquiry against any government employee or not.
This is detrimental to fight against corruption. If someone wishes to harass an innocent officer without any credible evidence of corruption, the government can refuse to give sanction for prosecution. But there is no need for sanction before an inquiry. If this happens, there is no inquiry, thus no credible evidence,
Conclusion
The bureaucracy needs to be made accountable for its decisions and actions. Hence, the amendments to Prevention of Corruption Act needs a relook and open for public opinion. The Whistleblower Protection Act’s provision should also be in alignment with the Prevention of Corruption Act. Reintroduction of grievance redressal bill and operationalisation of Lokpal Act along with these two form the necessary anti-corruption statutory framework.