The amendments make bribe giving an independent crime, and ensures that government officials cannot be investigated without prior approval.

Anti-graft bill passed by Lok Sabha protects govt officials deters complaints ExpertsImage for representation
news Law Friday, July 27, 2018 - 12:47

The Lok Sabha recently passed the Prevention of Corruption (Amendment) Bill 2018. The Bill amends the 30-year-old Act, which came into being in 1988, and proposes sweeping changes — it redefines criminal misconduct and makes bribe giving an independent crime in itself, among other things.

The Bill also extends protection against legal enquiry without prior sanction to retired government officials as well, and is now awaiting presidential assent. However, if the amendments are accepted into the Act in their present form, experts say that it will not only undo a lot of work that went into anti-corruption measures such as the Lokpal and Lokayuktas Act of 2013, but also deter people from trying to bring corrupt government officials to book.

The Bill protects government officials

One of the major complaints that experts have is the blanket shield the Bill gives government officials – serving or retired – against investigation into corruption charges without prior sanction. The Bill introduces section 17A, which says that police officers cannot conduct enquiries against a public servant without “previous approval”, barring cases where the person was arrested on the spot for “the charge of accepting or attempting to accept any undue advantage for himself or for any other person”.

The “concerned authority” is mandated to convey its decision on approving the enquiry within three months, which may further be extended by another month.

Wing Commander GB Athri (Retd), a social activist in Bengaluru, says that this bill is for the benefit of those in power.

“It appears that the bureaucracy wants to protect their subordinates as well as retired officials so that they are also shielded. Besides, if you need sanction for such an investigation, the element of surprise is lost. The officials have enough power, resources and time too under the Bill to destroy evidence,” he argues.

This is echoed by Santosh Hegde, who served as the Lokayukta for Karnataka from 2006-2011. He says that this is a clear indication that the Bill is for the benefit of both those in the political class and the executive.

Jayaram Venkatesan, convenor of Arappor Iyakkam, an anti-corruption NGO in Chennai, points out that Indian courts have already set a precedent regarding this, and there is no need to bring this provision now.  

“There was a government order which made it a requirement to receive prior sanction before conducting corruption charges against officers holding positions of joint secretaries and above. But the Supreme Court struck it down in 2014, and so did the Madras High Court in P Pugalenthi vs State Of Tamil Nadu in 2016. This is a big roadblock in investigating public officials,” he says.

Not differentiating colluding bribe givers from coerced ones

The Prevention of Corruption Act 1988 criminalises bribe givers as abettors under section 12. This means that those who collude with a government official who takes bribes by giving them a bribe are punishable. The new Bill amends the section to criminalise all bribe givers; unless those who have been coerced into giving bribes report the matter to an enforcement authority or investigating agency within seven days of the act.

Therefore, critics say it calls for punishing those coerced into giving bribes the same as those who collude with bribe-taking government officials.

“The Bill makes bribe-giving an independent offence. People who are bribe givers now will not be able to give evidence because their statements will be used as a means to prosecute them separately. This makes it very tough to give evidence in court,” Santosh says.

Jayaram points out that it is the common man who is compelled to give bribes and gifts to access government services. “They fear reporting corruption. That’s why they are giving a bribe in the first place. When you're forced, you would always fear reporting it, let alone in seven days.”

While experts agree that bribe givers need to be deterred, they assert that this is not the way to go about it.

Jayaram suggests that there should be a separate body to look into the non-delivery of services within a given period of time, and penalise the government official responsible for the service. “We’re advocating for something called ‘Right to Services’, which will allow common people to report. That’s the only way you can prevent bribery by common people,” he says.

Redefining criminal misconduct

The Bill also amends section 13 of the Act by redefining ‘criminal misconduct’. It essentially says that a public official can be said to have committed the offence of criminal misconduct if he “intentionally enriches himself illicitly during the period of his office.”

Experts say that this puts the burden of proof on the prosecutor to prove ‘intent’.

“For instance, in a case of disproportionate assets, you take into account the increase in market price and so on and then ascertain that it does not fall in line with the income of the public servant. Now, the prosecution has to prove that the government official has gotten assets disproportionate to his income through illicit means,” Jayaram asks.

“If the Bill becomes a law, you will have to prove both legal and factual misconduct of the accused,” Santosh explains.

Anti-people legislation

Athri points out that the Prevention of Corruption Act, in its present form, serves its purpose. “Historically, a change in laws has been demanded by people, and for the people. The Nirbhaya protests are the biggest example! This one just seems to have been initiated by the officialdom and for the officialdom.”

Jayaram believes that the law is a means for those in power to weaken institutions and mechanisms like the office of the Lokayukta and RTI.

“The government has been trying to make these institutions weaker… they delay appointing the Lokpal, have tried amending the RTI. On one hand, the Lokpal does not require permissions to investigate charges of corruption. On the other hand, if you amend the anti-corruption law, you nullify the Lokpal and other transparency mechanisms.”

“In my opinion, everything in this amendment is to protect the rajas and babus in power,” Santosh says.

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