Need for a bitter supplement
The past seven decades speak of abject failure of all efforts to curb rampant corruption
The Prevention of Corruption Act, 1988, once hailed as the panacea to subdue corruption, now stands morphed with amendments bringing in some dilutions and severe punishment. In spite of the existing draconian provisions, corruption has only become more invasive and pervasive, resulting in the surfacing of several scams in the three decades of its existence. Also, such provisions have been adversely affecting the economic progress of the country. The 1988 Act has intimidated decision-making in the government, created fear of prosecution among bankers, and victimised many innocent and honest public servant. Instead of being complacent, the new Corruption Law has been legislated. Various comments on the ramifications of the new act have followed. On the face of it, new challenges stand for investigations.
Only the future will reveal whether the morphed law will lead to zero corruption or it will only turn out to be a bonanza for the public servants to have a laissez-faire of corruption. Lessons from the past seven decades only speak about the abject failure of all the efforts in making even a dent in the endemic corruption in our society. Huge scams – Bofors, Urea, Jain Hawala, Animal husbandry, JMM, Cash for Questions, Taj Corridor, Aircel-maxis, Coal and Gas, etc., many more have surfaced shocking the country initially and then turning them into routine news. Also, it is a common experience that any government activity, without a gratis nothing moves (exceptions being rare). Sceptically, one can only keep their fingers crossed.
Sceptical, yes, since it is common knowledge that corruption warps a man with wealth and also equips him with various escape routes. The system and rules come to his rescue as he knows how to use them to avoid getting caught, and how to wriggle out if he gets caught. Detection is difficult. If detected, the process of justice can be delayed, purchased, or obstructed; witnesses won over, and even the judicial system can be influenced. Since the trial takes ages, their name is not sullied, as “they are still not convicted” and they are allowed to use this advantage to crawl back to a warm place.
The passing of the amendments, while giving us some reassurances and rising hopes, also prop up several doubts. When we have failed so miserably and the scenario is so grim, why should we shy away from emulating successful countries? How can anyone in the government not know that it is only an autonomous institution, a la the Ombudsman who keeps an eye on the governments in Sweden that floats their name in the top bracket of non-corrupt countries in the world, that can free the country of this sickness? It was what the anti-corruption movement of Anna Hazare, Arvind Kejriwal, and others had demanded. Unfortunately, even the shades of such institutions created in our country are not respected. Otherwise, how can one explain why the institution of Lokayukta was closed down all the nine years when Narendra Modi was the Chief Minister of Gujarat, and why the office of Lokpal has so far not been opened by his government? The stark reality is that, much against the expectations of the country, regime change has not brought with it any change in the patronage given to the white-collar criminals, particularly those big businessmen or industrialists with vested interests. Otherwise, how can one explain that Mehul Choksi, involved in the PNB Scam and is under investigation in 42 criminal cases, was issued a passport for 10 years without any police verification and how a clean chit was given to him to get settled in Antigua and Barbuda? And why the investigations in the Rs 50000 crore gas-fraud in Krishna-godavari basin involving Mukesh Ambani, some Congress ministers, and others are desperately being stalled? Why even their own party leaders like Arun Shourie and Jaswant Sinha have openly cast doubts about the Rafale fighter planes deal? – the sudden change of the agreement, the way rules were violated, efforts made to coverup the truth, contradictory statements of Defence Ministers, the way some media was used to propagate lies, the way other media was brow-beaten into submission, keeping the Hindustan Aeronautics Limited out of the competition and giving the contract to a Company with no experience. There appears to be only selective amnesia and selective brow-beating of opposition and not the real will to eradicate the virus of corruption. In spite of the above, let us presume that the new morphed law is well-intentioned to curb corruption while at the same time providing several overt safeguards to public servants.
The mandatory sanction required for prosecution of public servants under Section 19 in the existing law is already being used to deny it often, thus helping the accused and bringing all the efforts of the investigating agency to nought, even if the evidence put forth confirms that there is no malicious or vexatious prosecution. Now, with the amendments, even the subterfuge of ‘Single Directive’ that requires prior permission of the competent authority even to initiate enquiry or investigation against Joint Secretary or above rank officials, which was twice struck down by the Supreme Court, is extended to all and sundry, and retired public servants. How can anyone be unaware that it would damage the secrecy that is very vital in searches conducted during investigations mostly when concealed incriminating documents and illegal wealth are unearthed? Further, the definition of criminal misconduct is also narrowed down to include only two offences – dishonestly and fraudulently misappropriating of entrusted property and amassing assets disproportionate to known sources of income, in place of the earlier definition that covered other offences including abuse of position, use of illegal means, and disregard of public interest. Without conducting a preliminary enquiry, or investigation, how will all this be established to convince the competent authority to get the prior permission? Will it not provide an alibi to the competent authority to deny it if he wants to protect his corrupt subordinate? Furthermore, courts will be rendered helpless with the new provision that the presumption of wrongdoing for taking advantage for himself or for another in return for the improper performance of his public function is limited only to taking bribes, altogether discarding the value of circumstantial evidence that is relied on by the courts in all criminal offences. Further, exempting only bribery and not the case of disproportionate assets from getting prior permission for enquiry or investigation is improper, since both these offences are committed in one’s personal capacity and not in the discharge of his official duties. The other provisions include making bribe-giving also a substantive offence with two years time given for completion of trial and more importantly, there will be a minimum punishment of three years imprisonment for the convicts. Although these are redeeming features, in all, the amendments pose new challenges to the investigating agencies, unless they are wellequipped and trained in the use of modern technology.
Sting operations, conducted with the help of victims, sources, and whistle-blowers under the careful guidance of the Anticorruption agencies would help in getting authentic evidence about the real truth to establish conspiracy, demand and acceptance of a bribe, intimidation, extortion, gang operations, etc. Moreover, they will not only prevent the malpractices of some investigating officers in helping the accused but will also deter the purchasable witnesses from turning hostile during the trial of the case. In the past, Tehelka.com exposed corruption in defence purchases and in the BMW case, the Supreme Court appreciated the efforts of the NDTV in exposing the conspiracy to undermine the trial. Lately, NDTV exposed the boastings of the criminals about their roles in the Hapur case and the lynching of Pehlu Khan in cow-slaughter matters. With the extensive use of modern technology, the Anti-corruption Branch of Delhi successfully exposed corruption and frauds in several departments in the recent past, rattling them beyond measure. When sting operation exposes a serious crime of corruption, the protection of privacy should not come in the way and it is now the responsibility of higher courts to ensure that the value of technology is respected. Law has to evolve in the process. It is, therefore, imperative that CBI and all other, as well as vigilance machinery, should create specialised cadres and train them in using these modern methods while ensuring their authenticity to meet the legal requirements. The yet-to-be-framed rules should necessarily deal with this subject.
Further, simply fixing the timeline of two years for completion of trials is not sufficient. To achieve this objective, it is necessary to set up an adequate number of fast-track courts and fill the vacancies of the judges, and also appoint a matching number of prosecutors. In addition, there is yet another very important aspect – the Pairvi system, which needs rationalising and strengthening. Pairvi in police parlance involves producing all the evidence on record in a case and assisting the prosecutors during the trial, a task, that is usually left with the investigating officer. However, often it so happens that the investigating officer would be working at a distant place or is engaged in important assignments, or has even retired, and thus Pairvi of his cases gets the least priority. It is, therefore, necessary to have an exclusive Pairvi Section in every Police Station under the charge of one single responsible Officer who liaises constantly with the prosecutor. With the stacking of case-related documents, statements and other materials of all cases where investigations are completed, this Section takes the shape of a library. It will be the sole responsibility of the Pairvi Officer to monitor the dates of trial, service of summons and warrants, and also to brief the witnesses on time even if the investigating officer is not available. An efficient Pairvi system will not only prevent unnecessary adjournments but will also help the prosecutor in cogently presenting the evidence in the court, as successfully proved by the Bangalore Branch of the CBI. It will strengthen the legal process if these aspects too are taken care of in the Rules being framed.
Yet, all this preparation – the sting operations, pairvi, the creation of new courts, appointing judges and prosecutors will be of less use unless the primary matter of ‘prior permission’ is not handled well. For this purpose, why not leave this authority and responsibility with the properly selected, activist, and autonomous Lokpal/lokayukta Benches, instead of the governments holding the strings? If it is done, it would be the defining moment for the future of the country, as proved by the institution of Ombudsman in Sweden.
In spite of all the above efforts, it will be naive to underestimate the vitality, strength, and resilience of the millennia-old virus of corruption that has been evolving into virulent forms. A definitive action is possible only when there is a change in the dichotomous mindset of the society. Although the corrupt man works against the society and is thus anti-social, swindles nation’s wealth and is thus anti-national, he is still a gentleman and not a jumbo criminal for us, whereas the thief, is a criminal! Pledges don’t change the mindset of the corrupt. The public perception about the jumbo criminals has to change; the dichotomy has to go. It is time to treat them as greedy Bakasurs in a modern avatar. It should be realised that stringent laws, good investigations and timely completion of trials cannot work as the sole remedy. They need to be supplemented with the bitter medicine of social quarantining by constant exposure of the corrupt and branding them as criminal.
(Dr. N. Dilip Kumar is a retired IPS officer and a former member of Public Grievances Commission, Delhi. The views expressed are strictly personal)
It will be naive to underestimate the vitality, strength, and resilience of the millenniaold virus of corruption that has been evolving into virulent forms. A definitive action is possible only when there is a change in the dichotomous mindset of the society. Although the corrupt man works against the society and so is anti-social, swindles nation’s wealth and is thus anti-national, he is still not a jumbo criminal whereas a petty thief is a criminal!