A slew of new Bills and proposals introduced to amend exiting laws to tackle corruption
The Government of India has introduced a slew of new Bills and proposals to amend exiting laws to tackle the problem of corruption. Externally, the pressure is to comply with the requirements of the UN Convention against Corruption which India ratified a couple of years ago. Internally, the large scale people's movements against corruption launched over the last few years and also the ruling alliance's efforts to get re-elected to power later this year are providing the necessary fillip for strengthening the anti-corruption laws in India. Some amendments to the Prevention of Corruption Act were tabled in the Rajya Sabha last year and those proposals were referred to the Department-related Parliamentary Standing Committee for Personnel, Public Grievances, Law and Justice.
Snapshot view of the proposed amendments:
The Prevention of Corruption (Amendment) Bill, 2013 seeks to achieve the following:
1) Criminalise bribe-giving to the same extent as receiving bribes;
2) Expand the scope of offences that will be termed 'corruption';
3) Require sanction for prosecuting even retired officers from the appropriate authorities;
4) Make bribe-taking and bribe-giving in the corporate sector offences; and
5) Provide for procedures to confiscate the ill-gotten gains from corruption even before the completion of the trial proceeding.
The Parliamentary Committee's Report:
The Parliamentary Committee submitted its report on the amendment proposals and the same is available on the Rajya Sabha website at: http://18.104.22.168/newcommittee/reports/EnglishCommittees/Committee%20on%20Personnel,%20PublicGrievances,%20Law%20and%20Justice/69.pdf
While I am not an anti-corruption expert, the seemingly discriminatory manner in which the supply and demand sides of corruption are sought to be treated is very disturbing. Except for the cases of officers belonging to the elite civil services such as the IAS, IPS, IFS and other Group 'A' Services which will be handled by the Lokpal under the Lokpal Act, in all other cases officers belonging to other services can be prosecuted only if the appropriate government gives sanction for prosecution. This is a requirement under Section 19 of the existing version of the Prevention of Corruption Act.
Will the amendments contain corruption or promote impunity?
If the amendment proposals are approved by Parliament, strange situations are likely to be created. A thought experiment will demonstrate this problem. Let us say 'Mr. A': a commoner is accused of paying a bribe to officer 'B' who belongs to Group 'B' or Group 'C' services under the Central or the State Government. While Mr. 'A' - the bribe-giver will be prosecuted upon framing of charges in the special court, Mr. 'B' the bribe-taker will not be proceeded against until the appropriate government gives sanction. So while one party to the transaction will be prosecuted, the other party to the transaction will remain free until the Government accords sanction for prosecution. Is this equal treatment and equal protection of the law that Article 14 of the Constitution guarantees every person?
The amendment proposal seeks to stipulate a deadline of three months for making a decision on the request for sanction. An additional period of one month is granted if the matter requires consultation with the Attorney General for India (in the case of officers under the Central Government) or the Advocate General (in the case of officers of the State Government). Citizens and organisations which made submissions to the Parliamentary Committee pointed to absence of any consequences for delay in granting sanction for prosecution in the amendment proposal. Despite mentioning this submission in its report, the Committee maintains silence on this issue and only expresses satisfaction at the level of protection granted to public servants.
So let us take our thought experiment further. Mr. 'B' the bribe-taker could in theory remain scot free until the very end of the trial of Mr. 'A' the bribe-giver, simply because the sanction for his prosecution has not been granted. If Mr. 'A' is acquitted by the trial court, well and good. However if Mr. 'A' is convicted and the sanction for prosecuting Mr. 'B' simply never comes (unless interventions are made through the High Court or the Supreme Court) we would have a repeat of the Jharkhand Mukti Morcha case all over again. The bribe giver is held guilty but the bribe-taker remains scot-free. What the amendment proposals do not clarify is whether the trial of the bribe-giver will remain suspended until the sanction for prosecution of the bribe-taker is accorded or if the bribe-giver will be prosecuted straightaway if the special court finds sufficient material to go ahead with the trial.
What is worse, if the corruption accused is a retired government servant (retiring from a senior position) the trial of Mr. 'A' the bribe-giver will proceed unhindered while the accused will simply wait upon the government's decision to prosecute him. Chances are that the accused may die peacefully in bed if the sanction for prosecution never comes. The convicted bribe-giver may spend time in jail unless a higher court reverses the judgement of the trial court. It is only reasonable to expect such situations when the person accused of corruption is a Minister or an MP or a State Legislator. Again, is this equal treatment and equal protection of the law that Article 14 of the Constitution guarantees to every person?
What is the solution?
In order to avoid a travesty of justice, two options could be contemplated for inclusion in the amendment proposals:
a) the bribe-giver must not be prosecuted until sanction is accorded by the appropriate government to prosecute the bribe-taker; or
b) if the sanction for prosecution does not come in at the end of the 3-month period (or at the end of the extra month required for consultation with the highest law officers of the Central and State Governments), the law must say that it shall be deemed that sanction has been granted and the bribe-taker must be tried based on the facts and materials collected during the investigation.
I have used a very narrow category of offences to illustrate my argument. They could apply mutatis mutandis to other offences that will be recognised as corruption if the amendment proposals are approved by Parliament. I am no expert on anti-corruption matters. So I request readers to educate me if they find my arguments fallacious. Perhaps there are other serious problems with the amendment proposals. I request readers to share their thoughts about other problem areas in the amendment Bill, is any.