Parliament amends anti-corruption act: Will it weaken the law or restore fairness?
The Lok Sabha passed the Prevention of Corruption (Amendment) Bill, 2013 Tuesday.
The Bill makes bribe a direct offence and redefines the provisions related to criminal misconduct by a public servant. It also states that a police officer will have to obtain prior permission before investigating a public official.
ThePrint asks- Parliament amends anti-corruption act: Will it weaken the law or restore fairness?
In guise of making bribery direct offence, govt passed bill to protect corrupt officers
Former Karnataka Lokayukta
A cursory assessment makes the amendment looks like a positive one. However, when you read the fine print, a different image emerges.
In the guise of making bribery a direct offence, the government has passed a bill to protect corrupt officers. The amendments will only make it more difficult to prosecute corrupt officers. Earlier, permission was only necessary to file a charge sheet against serving officers. Section 197 of the CRPC mandated this. Permission had to be sought before an investigation in certain cases.
However, this amendment extends that as a blanket privilege to even retired officers. They have created more hindrances in the path of punishing guilty civil servants.
The clause that directs the inquiry to establish ‘intention’ is extremely vague and ambiguous. How does one establish ‘intention’ with certainty? This will only make it more difficult to establish guilt in case of civil servants. Moreover, they have redefined criminal misconduct.
The amendments will only dilute the anti-corruption act further. It is already clear that no political party wants a strong ombudsman like a Lokayukta or even a Lokpal. Now with this, they have further watered down the cause of a corruption-free service and at a time when there is widespread corruption at the upper-most level.
Prior permission to investigate clause will boost morale of honest public servants
Additional Chief Secretary, Rajasthan
The Prevention of Corruption Act in its erstwhile form was a great deterrent to public-spirited and honest officers. Cases are legion where honest officers have been victimised by the vested interest for acting in the interest of the public. The liberal interpretations of the court against the public servant, presuming every public servant to be corrupt, had exactly the opposite effect of that intended.
The honest officer would take extreme care to cover his flanks, and the dishonest would raise the risk premium for doing even the right job. Naturally, the public suffered in both the cases.
Particularly notorious was the definition of ‘criminal misconduct’ under Section 13 of the Act, especially under Section 13(1)(d)(ii) and (iii). The courts interpreted the ‘abuse of position to obtain pecuniary advantage to himself or any other person’ so widely that any act of a public servant could be interpreted as a benefit to someone.
Arguably, it is the job of a public servant to act in public interest so that benefits accrue to the public. This is how persons like Siddharth Behura and P.C. Parakh landed in the CBI net for mere technical mistakes, in spite of alabaster clean reputations throughout their careers. After a bench led by Justice Lodha struck down the prior permission provision for investigating officers of JS rank and above as discriminatory, decision-making became a task fraught with great perils. For some, however, great perils meant higher demands too.
Specifically, amendments to Section 13 to introduce ‘intentional enrichment’ instead of vague provisions of 13(1)(d)(ii) and (iii) is the most notable provision of this amendment. Also, the provision for prior permission for investigation and extending the protection in investigation and prosecution to retired employees is a great morale booster for the honest public servant.
At the same time, introducing provisions that criminalise bribe giving have also increased risk for graft. All in all, a great boost to the honest public servant and dampener for the bribe taker and bribe giver.
The amendments remove ambiguities that hinder prosecution
Former secretary, dept of economic affairs, ministry of finance
Latest amendments to Prevention of Corruption Act passed by Parliament present a mixed bag of features. Some are positive and some negative.
For the first time, bribe givers will be treated not merely as abettors of the offence, but as offenders themselves. Helpless bribe givers coerced into bribing public officials are exempted. Private companies giving bribes too will be treated as offenders, not merely abettors. The amended Act will facilitate confiscation of the offender’s property, a provision that was absent in the original Act.
The amendments remove the ambiguities that hinder prosecution. The term “criminal misconduct” is defined more cogently and explicitly. The Act now provides special courts and time limits for trials, a welcome feature.
Some amendments are worrisome. While the requirement of “prior sanction” by the government for prosecuting an offender is in itself an irritant in the original Act, the amendments now introduce a similar provision even for taking up investigations. This new provision will enable unethical governments to shield dishonest officers from prosecution because any delay in the investigation will obfuscate evidence and weaken prosecution.
One should look at these amendments in the overall context of how the NDA government has proceeded with other anti-graft laws. The Lokpal and Lokayuktas Act (2013) was diluted in 2016 to exempt public servants’ families from disclosing their assets. The Whistle Blowers Protection Act was diluted in 2014 to prohibit disclosures running counter to the Official Secrets Act, a provision that could nullify the primary intent of the legislation.
Electoral corruption sets the tone of governance. By amending the Companies Act to lift the ceiling on political donations, introducing a system of non-transparent electoral bonds to ensure anonymity of donors/ donees, and amending the Foreign Contributions (Regulation) Act to clear the way for larger foreign political donations flow, the NDA has taken retrograde steps in its avowed campaign against corruption.
Neither the BJP nor its allies in the NDA are willing to submit themselves to the stringent transparency requirements of the RTI Act.
Amendment ensures that civil servants will no longer be harassed
Former secretary, government of India
The amendment is a step in the right direction and will certainly strengthen the Prevention of Corruption Act.
Before we talk about how we need to know the problems with the earlier Act. The issue was two-fold. First, a large number of honest officers were being harassed. Second, most of the actual culprits would get away.
The earlier provisions were framed in such a manner that civil servants with bona fide intentions could be questioned. This created a sense of apprehension in civil servants. Even when I was working, I noticed a number of officers who were uneasy about committing on paper. Take the case of H.C. Gupta for instance, the courts never found a quid pro quo equation, however, he had to be charged because the law was such.
The amendment ensures that unless mala fide intention can be proven and quid pro quo established, civil servants will no longer be harassed. This will help them make decisions more freely and in a timely manner.
Moreover, the amendment targets the actual culprits – those giving bribes. The idea is to nail the person acting in an illegal manner. There is also a time schedule within which action will have to be taken against such people.
The amendment will hold accountable dishonest people and not unnecessarily harass honest ones.
Amendment or not, the ruling party has no interest in fighting corruption
There are two questions to be asked about the amendments. One, can the amendments make any qualitative change in the fight against corruption? Theoretically speaking, it may. Two, is the establishment serious about fighting corruption? That is where the problem lies. We are a corrupt society and the ruling party has no interest in fighting corruption because they are the real beneficiaries of the corrupt system.
Which political party can proudly say that they don’t indulge in corrupt practices? None, except the Aam Aadmi Party.
Narendra Modi became the Prime Minister riding on the anti-corruption wave. He said that he neither eats nor does he let anybody eat. Modi promised that he would not tolerate corruption but the system continues to be the same. Corruption has increased.
His close businessmen, friends and party men are thriving. The Rafale deal is a prime example of this. The government has no answers on why the price jumped three-fold or why an inexperienced company was given the order. The government is hiding behind the secrecy clause. Even party president’s son is allegedly in the dock. There are serious allegations against cabinet minister Piyush Goyal and no action has been initiated.
No Lokpal has been appointed. The SC had to intervene but nothing will be done about it. When Modi was the chief minister, he did not let a Lokayukta be appointed. When it did happen, due to court intervention, he was not allowed to function.
I agree that corruption under the Congress regime flourished. One of the biggest scams surfaced. But one has to acknowledge that people who were allegedly involved did resign, but the same is not happening now.
This country has many laws but very few law implementers. So if another amendment is added, how will it change the reality on ground? Life will go on like before.
The intent is missing and without intent, there is no fight against corruption. It’s all a well-choreographed drama.
Amending anti-corruption act will not stop political witch hunting of public servants
Amrita Nayak Dutta
Special Correspondent, ThePrint
The bureaucracy is rejoicing Parliament’s collective decision to amend the anti-corruption act. They claim that it will allow them to take faster decisions, without fear. However, it may not essentially offer recourse to honest public servants from political witch hunting, even as it makes investigations tougher against the real offenders. To punish a public servant or not will be at the discretion of the ruling political dispensation.
Whether it’s the bureaucrats or bankers, the amendment will allow them to be put through increased political pressure to get a job done, with the hope that their departments or the government of the day will not give a go-ahead to the police or the investigating agency in question to start a probe against them.
For instance, if a bank official decides on giving out a huge loan to a business tycoon like Nirav Modi under pressure from some politician, belonging to the ruling regime, they may effectively go scot-free as they will have the political protection to escape investigations.
For the investigators too, the job is going to get difficult as they will have to prove actual financial losses to prosecute a public official, which are prone to cover-ups in massive paperwork.
The definition of criminal misconduct has also been changed and an additional threshold of proving ‘intent’ has been introduced. It is no longer only about possessing disproportionate assets, but also proving that the public servant ‘intended’ to do so.
On the bright side, the amendment does fill up some gaps. It makes giving bribes a specific offence and enhances the reach of investigators to bribe givers, including private persons, among the offenders. It does promise to make prosecutions on merit by allowing a certain degree of protection to public servants taking bona fide decisions, which may turn out to be incorrect in the future.
But its actual impact on the much-discussed speed of decision making and corruption remains to be seen.