Rather than criminalising bribegivers, the objective of combating coercive corruption would be achieved if the government puts in place a grievance redress mechanism
The Prevention of Corruption Act (PCA), the key legislation which
defines what constitutes corruption and prescribes penalties for
corruption-related offences, is set to be amended by Parliament. The
proposed Bill, now before a select committee of the Rajya Sabha,
includes several contentious amendments that are likely to have
far-reaching ramifications. They require considerable deliberation.
First, the proposed amendments make all actual and potential
bribe-givers offenders under the PCA. How fair is it to criminalise all
bribe giving in a country like ours, where people are forced to pay
bribes even to get their basic entitlements like rations, pensions,
education and health facilities? The PCA already criminalises those who
abet corruption. While it is desirable to treat giving bribes aimed at
receiving illegitimate gains as an offence, people, especially the poor
and the marginalised, are often forced to pay bribes to get what is
legitimately theirs. If they are also prosecuted, it would be a double
wrong.
Disincentivising reporting
Imagine a poor man who rushes his young daughter to hospital after she
has got badly burnt, and finds the doctor demanding a bribe to treat
her. What options does he have? If he doesn’t pay the bribe, he risks
losing his daughter’s life. On the other hand, if he pays it (clearly
under duress), the proposed amendments to the PCA make him as guilty as
the receiver — he could be in prison for up to seven years! Forcing
people into this dilemma would only further the culture of impunity by
disincentivising reporting of corruption by bribe-givers.
Therefore, the proposed amendments to the PCA are, practically and
morally, a retrograde step. The government would be well advised to
reconsider this and offer immunity to at least three types of
bribe-givers. First, those who are coerced to pay a bribe to obtain
their legal entitlements; second, those who voluntarily come forward to
complain and bear witness against corrupt public officials; and third,
those who are willing to turn approvers. For the second and third
categories though, immunity should be provided only from criminal
liability — bribe-givers must be made to return any benefit they secured
as a result of the bribe. Providing immunity to these categories of
bribe-givers would encourage them to complain about corruption and
ensure that corruption is not a low-risk, high-return activity.
Rather than criminalising bribe-givers who are forced to pay bribes to
get their legal entitlements, the objective of combating coercive
corruption would be more effectively achieved if the government puts in
place a comprehensive grievance redress mechanism. Currently, if anyone
files a complaint regarding denial of their entitlements, the
complainant almost never gets redress nor is any penal action initiated
against the guilty. This can be remedied by the enactment of the
grievance redress bill, which was introduced in the Parliament in 2011
and had support across party lines, but unfortunately lapsed with the
dissolution of the last Lok Sabha.
Approval for investigation
The second prickly issue is the need to seek prior approval for
investigation into certain cases of corruption. The amendments state
that complaints regarding corruption that relate to decisions taken or
recommendations made by public servants in the discharge of their
official duty, shall not be investigated without the prior approval of
the Lokpal or Lokayuktas, as the case maybe. Such complaints shall be
forwarded to, and deemed to be complaints made to the Lokpal or
Lokayuktas.
The Minister concerned clarified in the Rajya Sabha that the objective
of these amendments is to safeguard public servants who are in
decision-making positions, so that they may take decisions without fear
of harassment. He said that the amendments were meant to replace Section
6A of the Delhi Special Police Establishment Act, which was struck down
by the Supreme Court. Section 6A mandated prior sanctions for
investigation for officials of the rank of joint secretary and above, as
they are in decision-making positions.
However, these amendments will potentially lead to great confusion and
unending litigation. How will the police, without investigation,
unambiguously determine whether the alleged act of corruption is
relatable to a decision taken or recommendation made by a public
servant?
To avoid confusion, the proposed amendments must either be dropped or
state that complaints about all offences under the PCA shall be dealt
with by the Lokpal at the Central level and Lokayuktas at the State
level, for all categories of public servants covered in the respective
laws.
Existing instruments
Finally, despite widespread public opinion against the necessity to seek
the government’s permission before prosecuting a public servant for
corruption, the amendments seek to strengthen this provision by
increasing the cover to even retired public officials. Unfortunately,
experience in India has shown that the requirement for seeking prior
sanction from the government for prosecution is a critical bottleneck
and results not only in huge delays but also in the accused often never
being prosecuted. The PCA must insulate prosecuting agencies from
government influence. The Lokpal law has vested the power of granting
sanction for prosecution in the Lokpal. The proposed amendments must
appropriately reflect this. Wherever the procedure for granting
prosecution is defined in the Lokpal or Lokayukta laws, it should be
applicable. For all other cases, including where no Lokpal or Lokayukta
has been set up, an independent committee should be tasked with the
responsibility of giving prior approval for prosecution.
If the Modi government is serious about tackling corruption, it should,
in addition to re-introducing the grievance redress bill, immediately
operationalise the Lokpal Act and the Whistle Blowers Protection Act
which were passed by Parliament more than two years ago. These laws,
together with the PCA, form the necessary anti-corruption statutory
framework.
No comments:
Post a Comment