A balancing Act

A balancing Act

News:

1. R.K Raghavan, former CBI Director, expressed his views on the amendments to the Prevention of Corruption Act .

Important Analysis:

2. To tackle rising incidences of corruption in India, the Parliament has passed the Prevention of Corruption (Amendment) Bill recently.
3. The amendment Bill will contain the following provisions.

• It will mandate prior government approval of the Centre or State government to initiate investigation into corruption charges.

• It widens the definition of criminal misconduct to include the bribe giver.
• A person who had been coerced into giving a bribe cannot be proceeded against.
• The amendments include a stipulation for a day-to-day trial and completion of court proceedings within two years.
• Where this is not possible, the judge concerned will have to record reasons for prolongation of the trial and give himself an initial extension of six months.
• Given the overburdening of the judiciary, even fast-track courts may be unable to stick to this deadline.
• The primary objective of these amendments is to tone down law enforcement excesses without diluting the authority of agencies like the CBI;
• Its objective is to strike a balance between enforcement overzealousness and the need for stringent action against corrupt public servants.
• Protection to government servants from arbitrary and unilateral action by anti –corruption agencies without prior permission from the government was earlier available only to higher authorities
• The latest amendment extends this protection to all public servants.

4. However, the Bill is getting negative reactions from large sections of the public due to following concerns :

• Risk involved in delegating authority to order commencement of investigations under the Act.
• The Bill is enormous, given the size of India’s bureaucracy and the entrenched sophistication of dishonest practices.
• Another problematic area is the deletion of the whole of clause (d) of sub-section (1) of Section 13, which defines ‘criminal misconduct’ as the acquisition of a ‘valuable thing’ or ‘pecuniary advantage’ in a dishonest manner.
• The deleted clause was the sole effective weapon against a misbehaving senior official.
• This is disappointing because corruption in high places is sophisticated and takes place in a highly clandestine manner.
• Dilution of the definition of ‘known sources of income’ through the incorporation of the statement that this would include income received from any ‘lawful source’, an expression that has been left undefined.
• This is critical because of the misconception that as long as tax has been paid on income received from an undisclosed and illegitimate source, such income becomes lawful.
• The latest amendments to Section 13(1) could be in conflict with the spirit of Article 19 of the United Nations Convention Against Corruption.
• Excessive authority to enforcement agencies could only lead to miscarriage of justice, without bringing about a corresponding reduction in criminal misconduct.

5. The author has put forward the following suggestions:

• With some civil servants complaining that they had been wronged for discharging their lawful duties, such a balance is the need of the hour.
• Need to consider whether conferring greater autonomy on investigating outfits,
• Shortening trial procedures through mechanisms such as fast-track courts, and
• Making penalties more stringent will introduce the much-needed deterrence to prospective offenders.