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Fighting Graft

The country has now an amended law to fight graft, one that seeks to punish bribe givers too while supposedly giving a measure of protection to honest government officials. However, the Prevention of Corruption (Amendment) Bill, 2018 passed by both Houses of Parliament last week, is remarkable for the support received from various parties even as it has raised several questions. The bill was introduced in 2013 by then UPA regime, sent to a parliamentary committee, tinkered with by the NDA regime, and finally received unanimous passage. First things first, India’s prime anti-graft law, the Prevention of Corruption Act, was enacted back in 1988 and needed an upgrade. The country has witnessed a multitude of mega scams since then, and in May 2011 ratified the UN Convention Against Corruption (UNCAC) which necessitated adequate legislative and administrative measures to deal with graft and black money. The problem was not that the earlier anti-graft law wasn’t stringent enough — rather the problem was with its lax enforcement. The investigation process was mostly delayed and desultory, and at worst, stage managed outright. Even if the cases reached court, these remained pending for years on end and resulted in few convictions. Whether enforcement of the amended law will be beset by the same weaknesses only time will tell, but it is instructive to note some of the changes made to make bribery a more specific offence. Bribe givers will no longer be mere abettors of the crime — they will be adjudged offenders and punished with jail term for 3 to 7 years besides being fined, just like the bribe takers. The bribe giver will also no longer be protected from prosecution for statements made by him during trial. He will be let off only if he is able to prove in court that he had been coerced to pay bribe — however, the amended law gives him only 7 days to lodge a complaint after the incident, which some lawmakers have objected to be too small a window. The same will apply to companies or commercial entities giving bribes — these too will be considered as accused and punished likewise.

The real point of interest is how the amended law defines a corrupt official, and how investigators shall proceed against him. Under the earlier law, it was sufficient if a public servant obtained for any person ‘any valuable thing or pecuniary advantage without any public interest’. Now, the amended law will require proof that the accused official had the intention ‘to perform or cause performance of public duty improperly or dishonestly’; it will also have to be established that the official received ‘undue advantage’ as reward for such act. As to what constitutes ‘criminal misconduct’ by a public official, while the earlier law said ‘any gratification… valuable thing or pecuniary advantage’, the amended law now specifies two points — misusing the property of someone else for one’s own purpose, and enriching oneself illicitly during one’s time in office. The NDA government has been contending that ‘any valuable thing or pecuniary advantage’ under the earlier law was too broad a definition of reward for corruption — that it frightened an honest official from taking any decision whatsoever and thereby led to administrative inaction. However, there is disquiet over a provision inserted in the amended law ostensibly to protect public officials “from undue harassment”. This provision requires that even before launching any inquiry or probe against a serving or retired public official for graft, the investigating agency will have to seek ‘prior approval’ from the higher authority concerned.

It needs be mentioned here that investigating agencies already need prior sanction from authority to prosecute a public official in court. How tough it is to get such permission can be gauged from an incident in Assam last year, in which a request by CID to prosecute five Agriculture officials took one and half months to move from the table of the Commissioner Secretary to departmental Minister Atul Bora, and that too after Mr Bora ordered an investigation following media reports. If things remain unchanged in this State, it will be that much tougher to get official sanction even to start investigation against a suspect official. The amended law does fix a time limit of 2 to maximum 4 years for graft cases, and also provides powers for attachment and forfeiture of an accused public official’s property. But questions will continue to be asked as to who should be the proper authority to give sanction to investigating agencies to probe a suspect official. If it is the department or ministry concerned, then it will be a huge weakness of this amended law. The proper authority should be an independent ombudsman like the Lokpal/Lokayukta, but despite enacting the law in 2013 and prodding by the Supreme Court last year, the Central government has appointed no Lokpal while several States too have no Lokayukta. The anti-graft crusade by Chief Minister Sarbananda Sonowal, that has netted several officials and trainee probationers, has been complicated of late by allegations of pay-off to some judges. With corruption so entrenched, how the amended law is enforced should be keenly watched in this State.

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