Layers of protection: on changes in anti-corruption law(Hindu summary-30th July 2018)

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Layers of protection: on changes in anti-corruption law

Context

  • The amendments to the Prevention of Corruption Act, 1988, adopted recently by both Houses of Parliament

Background of the topic

  • Moves to make changes in this law, aimed at combating corruption in government, were initiated during the UPA’s second term in office and largely centred on the misuse of one provision — Section 13 (1) d.
  • Former Prime Minister Manmohan Singh had criticised this section, under which public servants are culpable for securing a pecuniary advantage for another “without any public interest”, for ignoring a foundational principle of criminal law: mens rea (the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused).
  • This resulted in many honest officials being prosecuted even when they gained nothing and merely exercised their power or discretion in favour of someone.

Highlights of the Bill

  • The Prevention of Corruption (Amendment) Bill, 2013 amends the Prevention of Corruption Act, 1988.
  • The Act covers the offence of giving a bribe to a public servant under abetment. The Bill makes specific provisions related to giving a bribe to a public servant, and giving a bribe by a commercial organisation.
  • The Bill redefines criminal misconduct to only cover misappropriation of property and possession of disproportionate assets.
  • The Bill modifies the definitions and penalties for offences related to taking a bribe, being a habitual offender and abetting an offence.
  • Powers and procedures for the attachment and forfeiture of property of public servants accused of corruption have been introduced in the Bill.
  • The Act requires prior sanction to prosecute serving public officials. The Bill extends this protection to former officials.

Impact of the amendment

  • It protects the honest officials.
  • It is more concise and restricts criminal misconduct to two offences: misappropriating or converting to one’s own use property entrusted to a public servant or is in his control, and amassing unexplained wealth.
  • By making citizens liable for offering a bribe to a public servant, the anti-corruption law has been brought in line with the UN Convention Against Corruption.

Criticism

  • The penal provision can empower people by allowing them to cite it to refuse to pay a bribe. At the same time, what happens when the police or any other agency refuses to register a complaint? People may be left in the lurch with no redress. Further, it may render them vulnerable to threats from unscrupulous public servants who collect money to speed up public services but do not deliver.
  • The most unacceptable change is the introduction of a prior approval norm to start an investigation. When a prior sanction requirement exists in law for prosecution, it is incomprehensible that the legislature should create another layer of protection in the initial stage of a probe.

Way Forward

Public servants need to be protected against unfair prosecution, but a genuine drive against corruption needs a package of legislative measures. These should contain penal provisions, create an ombudsman in the form of a Lokpal or Lokayukta, as well as assure citizens of time-bound services and whistle-blower protection. Laws to fulfill these objectives are either not operational or are yet to materialise. Protecting honest public servants is important; so are anti-corruption efforts.

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