Layers of protection: on changes in anti-corruption law
#Protecting honest public servants is important; so are anti-corruption efforts
The amendments(संशोधन) to the Prevention (बचाव) of Corruption Act, 1988, adopted(अपनाना) recently by both Houses of Parliament, are a mixed bag. Moves to make changes in this law, aimed at combating (विरोध करना) corruption in government, were initiated during the UPA’s second term in office and largely centred on the misuse of one provision (नियम)— Section 13 (1)d. Former Prime Minister Manmohan Singh had criticized (आलोचना करना) this section, under which public servants are culpable (आपराधिक)for securing a pecuniary (आर्थिक)advantage for another “without any public interest”, for ignoring a foundational principle of criminal law: mens rea. This resulted in many honest officials being prosecuted (अभियुक्त)even when they gained(प्राप्त करना) nothing and merely (केवल)exercised their power or discretion (विचारशीलता)in favour of someone. Insofar as it had a chilling effect on governance and deterred(रोकना) bold decision-making, the amended form may have a liberating (मुक्ति)effect on honest officials. Besides, it is more concise and restricts criminal misconduct to two offences(अपमान): misappropriating or converting to one’s own use property entrusted to a public servant or is in his control, and amassing (इकट्ठा करना)unexplained wealth. There was concern initially with the wording, “intentionally enriches(सम्पन्न बनाना)himself illicitly(नापाक)) during the period of his office”, as it raised a doubt whether the ‘intention’ to amass wealth would also have to be proved. Now an explanation has been added that a person “shall be presumed(अनुमानित)“` to have intentionally enriched himself” if he cannot account for his assets(सम्पति) through known sources of income.
By making citizens liable(जिम्मेदार) for offering a bribe (रिश्वत देना)to a public servant, the anti-corruption law has been brought in line with the UN Convention Against Corruption. The only exception to this rule is when one is forced to give a bribe. This exception kicks in only when the fact that one was forced to pay a bribe is reported to a law enforcement authority within seven days. The penal provision can empower people by allowing them to cite it to refuse to pay a bribe. At the same time, what happens when the police or any other agency refuses to register a complaint? People may be left in the lurch(झटका) with no redress(समाधान). Further, it may render them vulnerable(असुरक्षित)to threats from unscrupulous (अनैतिक)public servants who collect money to speed up public services but do not deliver. The most unacceptable change is the introduction of a prior (पूर्वगामी)approval norm to start an investigation. When a prior sanction requirement exists in law for prosecution(अनुसरण), it is incomprehensible(अबोधगम्य)
that the legislature(विधानसभा)should create another layer of protection in the initial stage of a probe(जाँच-पड़ताल). Public servants need to be protected against unfair prosecution, but a genuine drive against corruption needs a package of legislative(वैधानिक) measures. These should contain penal provisions, create an ombudsman(प्रशासनिक शिकायत जाँच अधिकारी) in the form of a Lokpal or Lokayukta, as well as assure citizens of time-bound services and whistle-blower protection. Laws to fulfil these objectives are either not operational or are yet to materialize(कार्यान्वित होना).