A weekly column on the sessions of parliament.
Since coming into power in 2014, this government has stated that addressing the issues of corruption and black money in the economy will be a priority. In the last few years, it has enacted legislation to recover undeclared foreign income and assets of individuals, and demonetised old Rs 500 and Rs 1000 notes. One significant Bill that seeks to address corruption in public functionaries is the Prevention of Corruption (Amendment) Bill, 2013. It has been pending in the parliament since 2013 and repeatedly listed for discussion since. Even during this week, the Bill was included in the legislative business of Rajya Sabha, but could not be taken up for discussion.
The Bill has gone through a rigorous scrutiny process by two parliamentary committees and the Law Commission of India. The deputy chairman of the Rajya Sabha (RS) has now stated that the version of the Bill as reported by the 2016 RS select committee will be taken up for discussion in the House.
Giving of a bribe
As the primary law that regulates corruption related offences by public servants, the Prevention of Corruption Act, 1988 penalises public officials who take a bribe. The bribe giver can only be punished for ‘abetting’ or aiding the bribe taker. Moreover, if the bribe giver agrees to turn witness against the bribe taking public official, he escapes punishment. Over the years it has been recommended that, in order to effectively tackle cases of bribery, it is not enough to punish the demand side of bribery alone (i.e. the bribe taker). The supply side of bribery (i.e. the bribe giver) should also be equally penalised. This thinking is reflected internationally as well: the United Nations Convention against Corruption, 2005 and the UK’s Anti Bribery Act, 2010 treat bribe giving and taking as equal offences.
However, in the Indian context, incidents of bribe giving can play out in complex ways. There may be cases where a person actively pays a bribe to a senior government official to acquire a tender for a building contract. In contrast, there may be another scenario where a government official refuses to give someone their ration card without an additional payment of say Rs 1000. Here, the person may be constrained to pay the amount to get his entitlements. The question is whether both, the builder and the ration card seeker, deserve to be treated as bribe givers under the law where the punishment is up to seven years’ imprisonment.
The Bill, when introduced, sought to treat bribe giving under all circumstances equally. Following stakeholder concerns and expert recommendations, the 2016 select committee’s Bill has carved out an exception in this regard – if a person who is compelled to give a bribe reports the incident to law enforcement authorities within seven days, he will not be punished. This exception seeks to differentiate between a harassed bribe giver and one who is acting in a dishonest manner to gain undue benefits. However, what remains to be seen is if a harassed bribe giver will feel safe and unencumbered to report such incidents to the police, and if this will result in an overall reduction in instances of bribery of public officials.
Prior approval for investigating a public official
Since public officials perform a ‘public function’, they may be more vulnerable to harassment and false charges in the course of their employment. To ensure that public officials perform their tasks in a free and fair manner, the law has created certain safeguards. For one, a law enforcement agency (such as the CBI) that has obtained adequate evidence against a public official will require prior approval before initiating his prosecution. If the public official in question is an MP or MLA, prior approval will have to be obtained from the speaker or chairman; in the case of certain categories of public officials, the matter is referred to the central or state vigilance commissions.
The Bill has introduced an additional layer of protection for public officials facing corruption charges. Such prior approval will have to be obtained not just at the stage of prosecution, but at the stage of investigation as well. However, it is at the stage of criminal investigation that facts and circumstances are verified, and evidence is collected. In the absence of such evidence, what is the information that will be available to the sanctioning authority to decide whether the CBI should begin investigation? Also, this could result in further delays in investigation and prosecution of genuine cases of corruption.
When a public official acts beyond his mandate to gain rewards or other benefits, it could result in criminal misconduct. The Act considers criminal misconduct as a higher category offence, with a punishment of four to ten years’ imprisonment (note that the maximum punishment for bribery is seven years). This includes acts such as misappropriation of property and amassing disproportionate assets by public officials. In recasting this provision, the Bill has entirely omitted one offence – that of obtaining an advantage for any person “without public interest”. Neither the expert bodies that examined the Bill nor the Statement of Objects and Reasons in the Bill have cited any reasons for this omission.
As a criminal legislation that creates new offences such as bribe giving, recasts existing offences, and modifies procedures related to investigation and trial, the Bill is without a doubt, a complex one. Over the last few years, several issues in the Bill have been resolved during the stages of committee scrutiny. The parliament is now tasked with the responsibility of carefully deliberating the provisions of the Bill to ensure that the delicate balance of punishing those guilty of corruption and protecting the innocent from harassment is maintained.
Prianka Rao is a senior analyst at PRS Legislative Research.