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Evolution of anti-corruption

We have come a long way since the 1967 Prevention of Corruption Act. The punishment was then discretionary

Evolution of anti-corruption

Is the corruption enforcement dented? This query begs an appraisal of existing anti-corruption laws. There are two that demand attention. The 'Prevention of Corruption Act 1988' (hereinafter called the Principal) and 'The Prevention of Corruption (Amendment) Act 2018' (hereinafter called the Amendment). The Amendment has made the face of the Principal different and these alterations have aroused interest.

The first time corruption became a menacing crime for the British was in 1943. India drafted a separate law against it in 1947. Revision of corruption laws followed, however, in 1988 the Principal was legislated and it stood like the Rock of Gibraltar till the other day. Now the Amendment. The first change is that rules (yet to be framed) will govern action under our corruption laws, that is, the Principal and the Amendment. Next, the definition of corruption and its punishment have undergone changes. Thereafter, all actions against present and former public servants, that is, "to inquire and investigate" will need prior permission of the competent authority (one solitary exception of getting caught while being bribed). Finally, it authorises the special Judge to attach properties of those charged with corruption.

No comments can be made on the rules since that has to wait until the rules are announced. I will welcome both, definition and punishment, in the most positive way. Definition of corruption has undergone changes that will protect the honest but pillory the gullible and mistake-prone public servants. Messers Gupta and Pareek, both in the IAS and Secretaries Government of India, would never be indicted. Similarly, Ashok Chawla, former Finance Secretary, would have been named accused along with P C Chidambaram. Punishment has been enhanced. We have come a long way since 1967 Prevention of Corruption Act. The punishment was then discretionary. It was at the minimum six months or less. Justice D A Desai and Justice A O Koshal of the Supreme Court had warned the judges in 1980 to not be lenient with the corrupt and I quote: "The Court should not be oblivious to the fact that while conferring discretion in the matter of awarding adequate sentence within limits prescribed by the statute, the legislature finding cases of misplaced sympathy in sentencing process fettered the Court's discretion by prescribing a minimum sentence and making it obligatory to record special reasons for awarding less than the minimum. If, still, the notice of Court's discretion is not taken, time may not be far when the legislature out of exasperation may resort to what it has done in the Prevention of Adulteration Act, where the minimum sentence is prescribed and Court's discretion to award less, in any case, is taken away." The Corruption case he was hearing came from Punjab High Court and the corrupt were sentenced to period undergone which "cannot be more than a few days". Thus, the Principal (1988) prescribed "punishment which shall be not less than six months but which may extend to five years and shall also be liable to fine". The discretion in the Prevention of Corruption Act 1967 was taken away but the sentence was not a deterrent, the Amendment is more stringent. It reads 'imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.' That's exasperation! From imprisonment of six months or less (1967) to not less than six months (1988), to finally a minimum of three years (the Amendment, 2018). So the Amendment gets tough with the corrupt. There can be no disagreeing with that.

What about the definition of corruption? The jury will remain out. And rightly so. One has to wait on how in the years ahead, action against the corrupt is implemented off the cuff. Admittingly, a lot of thought has gone into defining what Chief Justice Jagmohan Reddy of High Court of the Andhra Pradesh in 1980 famously described - "Corruption in our country is steadily eating into the vitals of our administration and has become cancerous if public opinion is to be accepted, it is pervading". Though criminal misconduct by a Public Servant has been watered down, what remains is tough and what's omitted had on many occasions trapped honest errors into an act of corruption.

Parliament has again introduced provision of prior permission into the Amendment. Will these provisions be challenged? I expect they would be. There is already a provision of sanction before prosecution and the Amendment brings the former public servants as well under its protective umbrella. Nobody should quarrel with this protection to retired public servants. But, permission to "inquire and investigate" even if an act of crime is that of corruption by a designated authority is an impediment. Investigation delayed by a few days leads to disappearance or tampering of evidence and here it is going to be three months! It is also inhibitive. If the officer cannot enquire and investigate, how will he put material on paper to convince the competent authority that the alleged public servant should be subjected to investigation for corruption? It is needless as those definitions of corruption which existed in the Principal that led to the prosecution of innocent officers, are weeded out in the Amendment.

The Chapter IVA Attachment and Forfeiture of Property is to quicken the loss of property acquired through illegal means by corrupt public servant under investigation. Training to investigate cases of corruption is done. Now this new work will need that training as well. What I do visualise is strategising methods of collection of material against the corrupt. It will go beyond the statement of witnesses and collection of exhibits. There will be much more use of hidden cameras and tapes on top of support by way of extrajudicial confessions and statements.

(The author is a former Joint Director of CBI. Views expressed are strictly personal)

Shantonu Sen

Shantonu Sen

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