Speaking about the weather, Mark Twain wrote, everybody, talks about it, but nobody seems to be able to do anything about it. When it comes to corruption in our country, the situation is no different from what Mark Twain had to say about the weather.
Corruption in India is a phenomenon that pervades every level and every walk of life. India has not been free of corruption, whether in ancient times, pre-colonial period, British rule or decades following the independence. Corruption being anti-national, anti-economic development and anti-poor is taking its toll by corroding the moral fiber of our country and eating into its very vitals. It’s against this backdrop that, The President of India accorded his assent to the Prevention of Corruption (Amend) Act, 2018, on July 26, 2018.
Every government decision creates winners and losers. The decision of the government to amend the Prevention of Corruption Act 1988 appears to have ushered in ‘acche din’ for the Governments and public servants, but not so ‘achhe din’ for the citizens of the country as well as the investigative agencies which suffered defanging as a result of the new amendments.
The amendments made to the Anti-corruption law have been so far-reaching in its consequences, that the amendments seem to have mutated themselves into an altogether new law. Not just that, the amended law in some quarters has come to be comprehended as a game changer for the public servants and game over for the investigative agencies.
Speaking from the bureaucrats’ perspective, liberalization of the economic policies of the Government along with concomitant globalization in 1990s’ expedited economic development and creation of infrastructure by resorting to private-public partnerships. Consequently, any private-public partnership which appeared to benefit a private entity could be fished out and investigated by an investigative agency.
This meant increased risk to the senior bureaucracy as a result of divestiture of protective shields against motivated action under certain provisions of the Prevention of Corruption Act (PC Act), particularly section 13 (1) (d) (III), which penalized a bureaucrat for enriching a private entity “without any public interest”. This resulted in the careers of many honest public servants getting ruined as a consequence.
This also generated a tendency where civil servants would postpone decision making to their successor instead of taking a risk themselves.
In order to, prevent, this debilitating policy paralysis arising from such a situation and in order to provide an enabling environment free of fear for the public officials to take bold and empowering decisions, deletion of section 13 (1) (d) in the new amendment is being perceived as a game-changer for the public servants.
On the contrary, investigative agencies and the citizens of the country seem to think that the new amendments have diluted the old law. A provision in the old law to deal with corruption in high places, namely the section 13 (1) (d) in which the investigating officer in order to arrive at criminal misconduct or abuse of official position by a government servant - just had to prove, violation of legal provisions, rules, guidelines, procedures and resultant pecuniary advantages accrued to anyone, has been deleted.
Under this section, there was no need to prove any ‘direct quid pro quo’ in the transaction nor any bribery. Hence this provision came good in dealing with corruption involving government officials holding high offices and receiving illegal gratification in an extremely clandestine manner like offshore transactions, post-retirement benefits and choice postings, etc. Besides, this was also the only provision which made public servants liable for criminal activity in major scams like Bofors, 2G Spectrum, Commonwealth Games etc... Deletion of this provision, is, therefore, a cause for big disappointment.
Further, delinking acts of abuse of official position (criminal misconduct) from Section 13, and clubbing it with Section 7 (bribery) only serves to place the additional burden of proving bribery or direct quid pro quo on the investigating officer. The new provisions also appear to favour corrupt officials holding disproportionate assets, since the new amendment requires explicit proof with regards to the intention of the public servant to enrich oneself illicitly.
Definition of ‘Mens Rea’ has been added to the offence which did not exist earlier. Even when the public brings cases of acquisitions of disproportionate assets of corrupt officeholders before the investigative agencies it will be quite a difficult job to establish the same as any benefit that is not direct and cannot be proven to be an intentional fraud will not be an offence.
The new Bill restricts the definition of “known sources of income” only to income received from any lawful source. This permits the accused government officials to claim lawful income from a smorgasbord of sources which he may not even have intimated to the government in compliance with conduct rules and signifies moving back to pre-1988 days, which saw a great number of acquittals in disproportionate assets cases.
The new amendment is government/official friendly as it can not only save corrupt officials from prosecution, but also prevent any evidence from being gathered if the top officials have a whim to protect any corrupt officer. Section 17-A, makes it mandatory to obtain prior approval to initiate any inquiry or any investigation by an anti-corruption agency.
This provision applies to all employees in all rungs of the administration. Which means no inquiries would be possible against serving minister or former Minister without prior approval of the President.
This is a farcical provision because there could be no credible evidence if there is no inquiry. Under the circumstances, how would anyone produce any evidence to secure the approval of the disciplinary authority? The basic intention behind this idea was to protect honest officials from frivolous litigation and harassment of prosecution, but the amendments in the provision go way beyond this to protect even the retired public servants from the offences committed during their stay in office. Provisions in the new amendment make the bribe giver and the bribe receiver equally punishable.
Under the previous law, the offence of abetment of corruption could not be attracted even if a person made a statement during prosecution that he had greased the palms of the official to get his work done. The new provisions would, therefore, prevent the bribe givers from appearing as witnesses against public officials.
The new amendment allows for a maximum punishment of only seven years imprisonment whereas in the previous law the maximum punishment was ten years.
Further, the new amendments are reported to have been introduced with the aim of complying with the United Nations Convention against Corruption (UNCAC).
Article 19 of the UNCAC pertaining to “Abuse of Functions” amounts to “Criminal Misconduct” as defined under Section 13 (1) (d). Deletion of this provision, therefore, is in violation of the UNCAC as well. The amended law also provides for completion of the trial by a special Judge within a period of two years on a day-to-day basis extendable to four years. This is a welcome step, but the amendment is silent with regards to its outcome if the trial is not completed in four years.
In the ultimate analysis, the newly amended law is an assorted package. While it would help honest officials discharge their duties boldly without any fear of prosecution, the new law also diminishes the ‘Lokpal Act’.
(The author Dr K.Jayanth Murali, an IPS officer, is Director DVAC, Chennai)