After having been in the works since 2013, amendments to the Prevention of Corruption Act, 1988 have finally been passed by the Parliament. They have been welcomed by bankers and Indian Administrative Services officers’ associations. However, anti-corruption campaigners such as Prashant Bhushan and Santosh Hegde, have favoured these.
Either way, given that corruption was the talk of the town and brought a government down not too long ago, it feels like a muted response to a fairly wide-ranging set of amendments to a crucial law. So what are people celebrating and what are they unhappy about?
Liability of Bribe-Givers
There are about three fairly contentious sets of provisions, and I’ll deal with them in order.
First, the liability of bribe givers. For the first time in Indian law, the offence of giving a bribe is now punishable as an independent offence — in and of itself — and not just as an abetment to the bribery of a public servant. However, this does lead to the most obvious question — what about those forced to pay a bribe? The earlier version of the Bill only protected those who, in the course of a police investigation, offered a bribe (presumably under false pretences) to a government.
The Select Committee of the Rajya Sabha was quite aware of the problem, and in its report suggested that the bribe-giver should not be punished where he / she had been “compelled” to pay such a bribe, or if he / she reports having been compelled to pay a bribe — within seven days of the incident. The noble intention aside, this is a badly drafted exception.
It leaves so many unanswered questions from the point of view of the citizen:
- Will the police file an FIR against me for having paid a bribe even under compulsion?
- Will I have to prove compulsion in court to avoid jail?
- Will my complaint to the police be treated as a confessional statement?
- And if the circumstances are genuinely compelling, is it not logical for me to just pay up to avoid harassment rather than risk a second round of harassment by complaining?
Such doubts may only prompt more people to hesitate approaching the police (themselves notoriously corrupt and unreliable in acting against corrupt officials) thereby severely hampering the fight against corruption.
Defining ‘Criminal Misconduct’
Second, the Bill narrows down the definition of what constitutes “criminal misconduct” on the part of the public servant to just two specific things — one, misusing someone else’s property for one’s own purpose (think police officer seizing a vehicle and then making personal use of it), and two, enriching oneself “illicitly” during one’s time in office. Yogendra Yadav was one of those who criticised this amendment back in 2016 itself, arguing that it severely dilutes a clause that is crucial to fight cases of “consensual corruption”, which is typically how corruption in high places happens.
The other criticism of the earlier draft of the law — that the burden of proof should be placed on a public servant found with disproportionate wealth, to show the sources of wealth — has now been rectified in the amendment.
The Select Committee’s Report ensured that this particular line of criticism was adequately addressed, and the previous line of thinking restored in the amendments.
Yadav’s criticism does not necessarily hold since the definition of what constitutes bribery, has also been amended under Section 7. The new definition of the offence of the public servant being bribed, is wide enough to include what would earlier have been punishable as “criminal misconduct”. As such, simply duplicating the same thing under “criminal misconduct” would have only led to more confusion. Whatever the other drafting problems with the law, the conceptual difference between the offences of ‘bribery’ and ‘criminal misconduct’ is now much clearer than before.
The Most Problematic Clause
Third, and perhaps the most controversial provision, relates to clause 17A of the Bill, which requires that before any inquiry or investigation is initiated against a public servant for offences under the law, prior approval has to be obtained from the higher authority (overseeing the public servant accused of the offence). But this benefit is not applicable to all public servants — only those whose “recommendations” or “decisions” are the subject matter of the accusation of bribery.
On the face of it, this is a problematic clause. There is already procedural protection for public servants in the form of Section 19 of the law which says courts can’t take cognizance of offences under the law without sanction.
Why then the additional protection? That too only for certain categories of offences?
One conspiracy theory has it that this has been done to overturn the judgment of the Supreme Court of India in Subramanian Swamy v Director, CBI which struck down Section 6-A of the Delhi Special Police Establishment Act, 1949 on the ground that a similar protection given only to public servants above Joint Secretary level was unconstitutional for violating the guarantee of equality before law. All that this clause has done, far from appreciating the basis of the judgment, is to take the other extreme — extend it to everyone.
In the absence of a definition of “recommendation” or “decision”, how are we to tell in what situation this procedural requirement should apply? Should it apply when a traffic policeman decides to not challan you in return for a bribe? Should it apply when a registry official decides to accept your filing contrary to rules, with a bribe? I offer these two examples only because these are perhaps two of the most routine forms of harassment faced by people in their interaction with the state machinery. The law offering no guidance whatsoever, what should we expect from the criminal justice system when we report bribes?
Both Honest & Dishonest Officers Will Sleep Peacefully
Such approval from higher authorities has to be granted or denied within a maximum of four months of being sought. But what happens if no response is received at all? In the context of the sanction under Section 19, the Supreme Court had clarified in Subramaniam Swamy v Manmohan Singh that if no response was received, it would be assumed as given. Would the same principle apply here? We don’t know, and no clarity has been given.
Taken as a whole, what the amendments effectively do, without touching the scope of the offences, is to make the crime of bribery that much harder to report, investigate and punish.
Complainants will be deterred, the guilty will be shielded, and vagueness and uncertainty will give many an ‘escape clause’ from consequences. It creates a perverse incentive for lower-level officials to rope in their seniors into their bribery rackets, and vice-versa.
As is being repeatedly said, thanks to these amendments, honest officers will sleep peacefully without fear of harassment, but so will a great many dishonest ones.
(Alok Prasanna Kumar is an advocate based in Bengaluru and can be reached @alokpi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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