7 PM | The government’s anti-corruption scorecard | 29 April, 2019

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Context:

Big-ticket corruption has surfaced in India due to consistent attacks on anti-corruption laws and institutions.

Important Analysis:

• Serious cases of several big corruption have surfaced in the last five years, including banking frauds and the Rafale deal.
• Corruption in India is not limited to collusive high-level scams. Petty corruption, which affects the delivery of basic services and rights to people, is rampant.
• This especially impacts the poor and marginalized, who are most dependent on public provisioning of rations, pensions, health, and education.

Corruption Statistics in India:

• The annual Kroll Global Fraud Report notes that India has among the highest national incidences of corruption (25%).
• The same study also notes that India reports the highest proportion reporting procure­ment fraud (77%) as well as corruption and bribery (73%).
• According to the Transparency International Corruption Perception Index, India is ranked 76 out of 167 nations

Corruption laws in India:

• Public servants in India can be penalized for corruption under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. The Benami Transactions (Prohibition) Act, 1988 prohibits benami transactions. The Prevention of Money Laundering Act, 2002 penalizes public servants for the offense of money laundering.
• India is also a signatory (not ratified) to the UN Convention against Corruption since 2005. The Convention covers a wide range of acts of corruption and also proposes certain preventive policies.

Key Features of the Acts related to corruption:

Indian Penal Code, 1860:

• The IPC defines “public servant” as a government employee, officers in the military, navy or air force; police, judges, officers of Court of Justice, and any local authority established by a central or state Act.
• Section 169 pertains to a public servant unlawfully buying or bidding for the property. The public servant shall be punished with imprisonment of up to two years or with fine or both. If the property is purchased, it shall be confiscated.
• Section 409 pertains to criminal breach of trust by a public servant. The public servant shall be punished with life imprisonment or with imprisonment of up to 10 years and a fine.

The Prevention of Corruption Act, 1988

• In addition to the categories included in the IPC, the definition of “public servant” includes office bearers of cooperative societies receiving financial aid from the government, employees of universities, Public Service Commission and banks.
• If a public servant takes gratification other than his legal remuneration in respect of an official act or to influence public servants is liable to a minimum punishment of six months and maximum punishment of five years and fine.
• The Act also penalizes a public servant for taking gratification to influence the public by illegal means and for exercising his personal influence with a public servant.
• If a public servant accepts a valuable thing without paying for it or paying inadequately from a person with whom he is involved in a business transaction in his official capacity, he shall be penalized with a minimum punishment of six months and maximum punishment of five years and fine.
• It is necessary to obtain prior sanction from the central or state government in order to prosecute a public servant.

The Benami Transactions (Prohibition) Act, 1988

• The Act prohibits any benami transaction (purchase of property in the false name of another person who does not pay for the property) except when a person purchases property in his wife’s or unmarried daughter’s name.
• Any person who enters into a benami transaction shall be punishable with imprisonment of up to three years and/or a fine.
• All properties that are held to be benami can be acquired by a prescribed authority and no money shall be paid for such acquisition.

The Prevention of Money Laundering Act, 2002

• The Act states that an offense of money laundering has been committed if a person is a party to any process connected with the proceeds of crime and projects such proceeds as untainted property.
• The penalty for committing the offense of money laundering is rigorous imprisonment for three to seven years and a fine of up to Rs 5 lakh. If a person is convicted of an offense under the Narcotics Drugs and Psychotropic Substances Act, 1985 the term of imprisonment can extend up to 10 years.
• The Adjudicating Authority, appointed by the central government, shall decide whether any of the property attached or seized is involved in money laundering.
• Every banking company, a financial institution, and intermediary shall maintain a record of all transactions of a specified nature and value, and verify and maintain records of all its customers, and furnish such information to the specified authorities.

Prevention of Corruption (Amendment) Bill 2013 and POCA Amendment Act

• The changes introduced by this bill included:
  • Prosecuting the act of offering a bribe
  • Providing time-limits for completing trials
  • Attachment of tainted property
  • Prosecuting commercial organization as well for offering bribe
  • Prior sanction to prosecute serving public officials. Bill extends this protection to former officials also.

India and the United Nations Convention against Corruption 2003 (UNCAC)

• The UNTOC was adopted by the General Assembly in 2000 and came into force in 2003.
• The Convention is the first comprehensive and global legally binding instrument to fight transnational organized crime.
• States that have ratified UNTOC commit themselves to take a series of measures to prevent and control transnational organized crime, including
  • The criminalizing of the participation in an organized criminal group, of money laundering, related corruption, and obstruction of justice
  • The adoption of frameworks for extradition, mutual legal assistance, and international cooperation.

Right to Information (RTI)

• There is also another legal mechanism which pertains to the Right to Information (RTI) Act that is useful in the fight against corruption.
• As per the provisions of this Act, any citizen may place a request for information from a “public authority”, where the concerned authority needs to reply within 30 days. Thus, this act has armed citizens to get complete information on public spending.

The Institutional Framework:

• There are various bodies in place for implementing anti-corruption policies and raising awareness on corruption issues.
• At the federal level, key institutions include the Supreme Court, the Central Vigilance Commission (CVC), the Central Bureau of Investigation (CBI), the Office of the Controller & Auditor General (C&AG), and the Chief Information Commission (CIC).
• At the State level, local anti-corruption bureau have been set up, such as the Anti-corruption Bureau of Maharashtra.

Issues within anti-corruption laws:

• Amendments to the Prevention of Corruption Act narrows down the definition of corruption, increases the burden of proof necessary for punishing the corrupt, and makes things more difficult for whistle-blowers.
• Investigating agencies have been barred from even initiating an inquiry or investigation into allegations of corruption without prior approval from the government.
• Effectively, this empowers political masters to decide whether they wish to allow a corruption inquiry against a government employee or not
• The amendments have done away with the offense of abuse of position by a public servant unless the element of bribery is established.
• This frustrates people’s’ ability to fight corruption in cases which may not involve the payment of a bribe.
• Also, cases involving gratification are often impossible to trace as they may be deferred in the form of post-retirement benefits or paid through clandestine off-shore accounts.
• Currently, there is no domestic legislation in India which can punish the acts of international bribery i.e. the acts of bribery committed by foreign public officials.
• The Lokpal law was enacted to set up an independent and empowered anti-corruption ombudsman unfortunately the government has failed to take the necessary steps to appoint a Lokpal for nearly five years.
• Government has failed to promulgate rules and operationalize the Whistle Blowers Protection Act, 2014. Whistle-blowers, who speak truth to power by exposing corruption and wrongdoing, continue to be denied protection.
• The RTI Act, one of the most effective tools to fight corruption and abuse of power, has been under constant attack by the government.
• Lack of coordination between various investigation agencies is another shortfall of anti-corruption legislation. The lack of coordination results into acquittal of the accused.

Way Forward:

• Legislation for an effective mechanism to hold officials accountable was introduced in Parliament in the form of a Grievance Redress Bill in 2011. Unfortunately, it lapsed with the dissolution of the Lok Sabha in 2014 and needed to be reintroduced.
• Mere enacting anti-corruption laws are not enough. There must be a strong agency to implement those Acts effectively and prevent corruption in public life.
• The collective effort of the legislature along with a proactive approach taken by the judiciary may be very helpful in bringing some positive results in the context of prevention of corruption.
• It is the need of the hour to bring Central Bureau of investigation and other Central and State investigation agencies out of control of the government so that a fair investigation may be brought out and the culprit may be punished as per the provisions of law.
• There should be a comprehensive package to fight against corruption. The government must strengthen existing laws like whistle blower protection act, lokpal act etc.
• The government should also address the regulatory concerns in Competition act, the companies act, income tax etc.
• Government must ensure citizen participation and transparency in decision making to eradicate corruption.
• There should be an equal focus on judicial reform and police reform to create a deterrence.

Source: https://www.thehindu.com/opinion/op-ed/the-governments-anti-corruption-scorecard/article26974033.ece