One step forward and one (if not the proverbial two) step backwards seems to be government’s mantra in fighting corruption. On the one hand, driven to a corner, it passes the Lokpal Bill and, on the other hand, it makes surreptitious moves to weaken the principal legislation to combat corruption.
A number of bills are currently stuck in Parliament. The government is naturally blaming the Opposition and we are told that several anti-corruption initiatives are held up. One of these is the Prevention of Corruption (Amendment) Bill, 2013. The bill proposes to amend the existing Prevention of Corruption Act, 1988, the rationale being that “the ratification by India of the United Nations Convention Against Corruption, the international practice on treatment of the offence of bribery and corruption and judicial pronouncements, has necessitated review of the existing provisions of the Act and the need to amend it so as to fill in gaps in description and coverage of the offence of bribery so as to bring it in line with the current international practice and also to meet more effectively the county’s obligations under the aforesaid Convention”.
So far so good. The devil, however, is in the details. A scrutiny of the proposed amendments brings out that bureaucrats have used the opportunity to carve out escape routes for themselves.
Without going into great details, The Bill seeks to delete the entire clause (d) of sub-section (1) of section 13. This section penalises criminal misconduct through abuse of office and other corrupt or illegal means leading to pecuniary benefit either to the public servant or any other person. Establishing quid pro quo or giving details of the transaction is not mandatory. This section took care of and dealt with corruption at higher levels. All major scams from Bofors to 2G, Commonwealth Games scandal and coal scam became criminal offences by virtue of this section. The transaction in such cases is shrouded in secrecy and quite often the proceeds of crime are parked outside the country and subsequently laundered.
The cases of disproportionate assets (DA) would be worst affected. Two major changes have been proposed: i) the burden to prove that the said disproportion is on account of “intentional enrichment by the public servant in an illicit manner”; ii) restriction of the definition of “known sources of income” to income received from any lawful source. Even under the existing provisions, DA cases were difficult to prove. The proposed amendment would enable corrupt public servants to dodge the law by deliberate concealment of facts or post facto
Income Tax Settlements.
The bill further seeks to delete the existing section 24 of the Act. This section gave protection to bribe-givers against prosecution if they made a statement against an accused public servant. Deleting this section will have serious implications on the victims of coercive corruption. In trap cases, transactions are allowed in a controlled environment to enable the investigating officer catch the bribe-taker red-handed. With the protection of section 24 gone, the complainants would hesitate to come forward and depose against the bribe-seekers as they themselves might be prosecuted as bribe-givers.
It is also significant that the bill seeks to extend the protection of section 19 (prosecution sanction) to retired public servants. Besides, seeking prosecution sanction by private persons has been made more difficult by putting in the requirement of court order to that effect. The change appears to have been motivated by a desire to frustrate the likes of Subramanian Swamy.
The bill has been tabled in the Rajya Sabha. There is uncertainty about its passage, but even if it is not passed, the bill is not going to lapse. What is disconcerting is that many of the proposed changes are going to dilute rather than sharpen the effectiveness of the criminal justice response to corruption. The institution of Lokpal is being created essentially to fight corruption at high levels. However, if the acts of omission and commission by officers in the higher echelons of government are decriminalised and they are given escape routes, the hopes raised by the institution of Lokpal would prove to be illusory.
Singh is a former DGP Assam and UP, and DG (BSF)