Examine amendments to anti-graft law

Recent data released by the Central Vigilance Commission provides a startling picture. It shows that cases under the Prevention of Corruption Act in 2019 recorded a drop of about 40 per cent as compared to those registered in 2017 (before the amendments). In 2019, of the 710 cases filed by the CBI, as many as 396 were corruption cases registered under the Act.

LACUNA: There is a need to remove the artificial difference between private and public sectors with regard to the anti-corruption law.

GS Bajpai

Professor, National Law University, Delhi

The National Conference on Vigilance and Anti-Corruption has again brought the efficacy of the anti-corruption regime into a sharp focus. Focusing on the idea of a ‘Vigilant India’, this conference became an occasion to underscore the significant amendments that were carried out to the Prevention of Corruption Act, 1988,

(PC Act) in 2018. These amendments were intended to make the law stricter with regards to incidents of corruption.

Briefly, the amendments envisaged the following:

1. Bribe to a public servant to be an offence;

2. Sections 8, 9, and 10 of the amended law made it an offence if any commercial organisation indulges in bribing of a public servant;

3. The enforcement agency would need prior approval to investigate or prosecute any public servant under Section 17(A) of the PC Act;

4. The condition of Mens Rea inserted as a prerequisite for the prosecution of a public servant for certain offences under the amended law; and

5. The attachment and forfeiture of property and a time limit for the conclusion of trial for a period of two years have also been fixed.

These amendments were widely criticised for several reasons. Until recently, there has been no occasion to understand if these amendments have resulted in enhancing the effectiveness of the anti-corruption regime. But the recent data released by the Central Vigilance Commission provides a startling picture. It shows that cases under the PC Act in 2019 registered a drop of about 40 per cent as compared to those registered in 2017 (before the amendments). During 2019, out of the 710 cases filed by the CBI, as many as 396 were corruption cases registered under the PC Act.

There is an apprehension that the permission under Section 17(A) of the PC Act is a major reason for this drop, as is seen in the above statistics. It can be further seen in the fact that the CBI registered 280 cases of corruption where permission from the government was required. It means the percentage of cases under the PC Act decreased by 37 per cent between 2017 and 2019. During the same time, the percentage of cases under the PC Act requiring permission from the government dropped by 40 per cent.

If Section 17(A) is any reason for adversely affecting the investigation into the corruption cases, the drop in the number of cases to booking a public servant is a significant pointer. The drop was of 607 in 2019, compared to 2017 when 1,042 public servants were booked for corruption charges. This drop of about 47 per cent in 2019 over 2017 remains quite crucial.

It is important to examine as to how the amendments of 2018 have been impacting the operation of law and its institutions with regard to the prevention of corruption cases. Scholars are of the view that the amendment of Section 13 of the PC Act and the removal of 13 (1)(D)(iii) are also crucial.

In the previous arrangement under this law, it was sufficient to show that the public servant performed his duty without public interest. No criminal intention was to be attributed in the commission of any illegal gratification in this regard. In its present form, this law was a strict liability offence. The condition attached to Section 17 (A) of the PC Act, which now requires that even the investigation or inquiry about a public official will have to be permitted by the appropriate authority.

The permission for prosecution is understandable. However, the permission for even preliminary investigation into alleged corruption cases would be detrimental. The time limit for such permission is up to three months. This duration is enough for the alleged public servant to tamper with documents and materials, which in turn may frustrate investigation as well as prosecution.

Section 17(A) of the PC Act plainly looks unconstitutional. In the two decisions of the Constitutional Benches of the Supreme Court in Vineet Narain (1998) and Subramanian Swamy (2014), the apex court struck down Section 6 (A) of the PC Act requiring approval of the Central Government to conduct an inquiry or investigation as ultra vires of Article 14 of the Constitution.

Another important dimension is the omission of Section 24, which was a part of the erstwhile Act. This provision of law was intended to protect a bribe giver from prosecution. In the amended Act, this provision appears to have become a serious discouragement to the witness. The condition of ‘criminal intention’ in the amended Section 13 has been intended to protect honest public servants.

It means that the criminal intent will now be required to be proved by the prosecution beyond reasonable doubt in the court of law. The implication of the new arrangement now requires a strict standard, which does not seem to be easy, especially when witnesses are not available in such cases.

In the amended law, the arrangement of presumption has also been made which would require a public servant to prove whether he has accepted or obtained undue advantage. The usage ‘undue advantage’ is a new addition in the amended law. This expression has widened the ambit of misconduct or illegal gratification to include many non-pecuniary forms of gratification. However, the burden of proof and the requirement of evidence to prove the criminal intent shows up as a difficult challenge to the law enforcement agencies and the courts.

The declining number of cases registered under the amended PC Act leads one to examine certain other important dimensions of the problem.

A serious limitation of this Act is that it does not classify an act of offence in categories in terms of the gravity of offences. Regardless of undue advantage involved, this Act would operate uniformly. The lack of categorisation of various offences also fails to acknowledge the various degrees of liability that can be associated with these offences.

The amended Act protects a person who has been compelled to give bribe. However, it does not take into consideration a collusive person/witness in such cases. Besides, the limit of period of trial up to two years has not been made binding on the courts and, therefore, compliance looks unlikely.

The amended Act lacks a provision to deal with failure of reporting of instances of corruption within the institutions. This becomes more peculiar as this Act is claimed to have been modelled after the UN Convention of the Prevention of Corruption, which criminalises instances of non-reporting.

The amended Act also suffers from lack of clear and proactive arrangements for making prevention integral to the PC Act. It is in this sense that the prefix ‘prevention’ appears to be preposterous as it does not consciously provide a preventive design.

In many other jurisdictions, rights of the aggrieved party to seek compensation have been provided for better implementation of such laws. The present law does not make any such arrangement.

There is also a need to remove the artificial difference between private and public sectors for the purpose of this law as unchecked corruption in the private sector is easily channelised to the public sector.