Tackling corruption

A stricter application of the anti-corruption law can be the best deterrent to unscrupulous politicians and pliant bureaucrats.

EVEN as a fierce debate goes on much to the amusement of the aam aadmi as to which of the two political formations the United Progressive Alliance or the National Democratic Alliance is more corrupt, also doing the rounds are various theories about why corruption in the country has become a cottage industry.

I am solidly apolitical and hence do not want to join the debate, particularly when I am more than convinced that lack of honesty cuts across the political divide. Some commonly heard articulations on the subject look upon the murky political ambience in India which is said to facilitate the accumulation and secreting of a phenomenal amount of black money as the villain and the principal driver of venality. In specific terms, it is widely believed that coalition politics, which has come to hold sway over the Centre, permits licence of unseen proportions and the growth of huge amounts of unaccounted money.

The Hindu reported on a huge seizure of money by the Central Bureau of Investigation from the residence of a top office-bearer of the All India Bar Council, who is alleged to have received illegal gratification in connection with permission to start a new law university.

Ironically, Union Human Resource Development Minister Kapil Sibal, known for his candour, had said on television a few hours earlier that the education sector reeked of corruption. I wish his colleagues in the Union government are as forthcoming about their own charges.

Hats off also to Union Home Secretary G.K. Pillai a person known for his transparency and unconventional utterances who lashed out at the corruption that envelops police recruitment all over the country. I wish we had more people like Sibal and Pillai, who would at least prick the conscience of their colleagues if not sting them into action.

I recently heard a hilarious story, not exactly apocryphal, of a junior Minister in a State checking with his secretary as to whether he would be allowed to retain his earnings if he was caught and convicted under the Prevention of Corruption Act. That his anxiety did not extend beyond this indicates perhaps the depths to which politicians have sunk.

It is widely known that every political party in a coalition government is able to dictate the choice of portfolio allotted to it and how it would run that Ministry. It can, apparently, ignore the Prime Minister at will. The latter has perforce to juggle several rapacious parties that flout his authority with absolute impunity. His preference for passivity at this critical juncture is solely to ensure that the government does not fall. The common man wonders whether this stance, which goes against the grain and is out of character with his own monumental personal integrity, is worth the costs involved.

Unfortunately, in effect, there are now several prime ministers in the country, all within a single government, each with his or her own fiefdom that openly flouts Cabinet norms and convention for dubious ends. This is naturally fertile ground for permissiveness. As for career civil servants at the top, their survival depends on their readiness to be conduits or display a willingness to look the other way.

The members of the lower bureaucracy take the cue and cite the spiralling inflation and the consequent high cost of making ends meet in support of their need to line their pockets. This is at a time when government salaries have been jacked up to unbelievable levels, putting enormous pressure on the exchequer and on a private sector that is struggling to match the government's profligacy.

Is it then enough to lament over this sorry state of affairs? As citizens, do we not have a role, however hazardous it may be, to identify and name those who are leading corruption in public life and bring them to book? To combat crime of any kind, it is necessary to disseminate the message that, when caught, offenders will be put out of action and incarcerated.

Certainty of punishment and its severity are often cited by criminologists the world over as an effective way of countering human deviance. While they may not be the only measures that can bring down crime, they definitely constitute the major logical strategy to offer hope of relief for a society that is afflicted with too much of crime. It is in this context that India has to look at its anti-corruption law and decide whether the law is adequate for tackling graft. Again, is this a mere case of bad implementation of the law?

ANTI-CORRUPTION LAW

The principal weapon against graft in India is the Prevention of Corruption Act (PCA) of 1988, which replaced the earlier enactment of 1947. There is abysmal ignorance among the public on what the Act says and what it does not. Before this Act, the anti-corruption law rested solely on the provisions in Sections 161 to 165-A of the Indian Penal Code (IPC). The position changed after the promulgation of the PCA, 1947, which was amended in 1964 to incorporate the recommendations of the Santhanam Committee.

The 1964 Act was further amended to become the PCA, 1988, with a view to incorporate Chapter IX of the IPC and the Criminal Law Amendment Ordinance of 1944, which facilitated the attachment of wealth obtained by a public servant through corrupt means. (The IPC sections were thereafter deleted after incorporating the necessary saving provision.)

The preamble to the 1988 Act stated that one of its objectives was to make the existing anti-corruption laws more effective by widening their coverage and strengthening the provision. I leave it to the reader to decide for himself or herself whether this objective has been achieved in the 22 years since the Act became a law.

The 1988 Act is divided into five chapters and has 31 sections, some of which are crucial to the current debate whether the anti-corruption law is the villain in the inability to stem the rot. The most pertinent of all issues on the subject is the definition of public servant. The 1988 Act expanded this greatly to lay down categorically (Section 2c) that any person who holds an office by virtue of which he is authorised or required to perform any public duty is a public servant. This expansive definition means that few who fulfil public functions can escape the net when hauled up for corruption.

Until the early 1990s, some Chief Ministers and Ministers and Members of Parliament dodged the law by stating that they were not public servants. Nothing was more grotesque or audacious than this. The Supreme Court and the lower courts have debunked this and brought these functionaries within the ambit of the Act.

This was a signal victory for those who believed that no one was above the law. It is an entirely different matter that none of those prosecuted was ultimately convicted. There is still hope that some maverick judge will one day pick up the courage to take to its logical conclusion the prosecution of Chief Ministers found guilty of violating the PCA.

Perhaps the most important section of the Act is Section 13, which defines criminal misconduct of a public servant. The Section has five subsections. Section 13 (a) makes it an offence to habitually accept or agree to accept any gratification other than legal remuneration as a motive or reward.

DRACONIAN FEATURE

The most draconian of the features of this Section is d (iii), which deals with loss caused to government by a public servant. It is enough to prove that such loss was, in fact, caused, and that no public interest was served by the transaction that the public servant engaged in that led to the loss.

It is not necessary to establish mens rea or that he benefited from it. A number of commentators believe that this was contrary to known principles of English jurisprudence, from which India has borrowed. I am not aware whether this provision has been challenged in court. Possibly not. The point, however, is that it should greatly deter favouritism in buying goods or services from out of the public exchequer. This, incidentally, is relevant to various Commonwealth Games allegations.

Section 13 (e) of the PCA is the provision that is of interest to the average citizen because of the controversies generated by many VIPs hauled up under it. The text of the law is worth reproducing verbatim: if he or any person on his behalf, is in possession or has, during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

All the disproportionate assets cases highlighted by the media are pursued under this section. There have been many failures of prosecution under this. Not all of them are, however, merited. A large number of acquittals have been on flimsy technical grounds. A whole book can be written on this in order to highlight how some trial judges have been tendentious or have erred on facts.

Until this farcical situation is reversed by some categorical pronouncements by the Supreme Court, there will be public servants going scot-free, demoralising investigators still further. In a lighter vein, one worthy prosecuted for possessing assets disproportionate to his known sources of income sought to fill in the gap by pointing out how he had amassed a huge fortune through selling milk produced by his cows and buffaloes. If I remember right, the trial judge accepted this most honest declaration of income and acquitted the VIP.