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Daily Editorial – Anti-corruption mechanism and analysis of Prevention of Corruption (Amendment) Bill, 2013

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Anti-corruption mechanism and analysis of Prevention of Corruption (Amendment) Bill, 2013


Prevalence and state of corruption in India can be measured from the fact that citizens of India have started to believe that it is an integral part of the administration and inborn feature of the Indian democracy.

Rank of India on Transparency International’s index, 2015

India was placed at 76th position out of 168 countries with a score of 38 out of a possible 100 in Transparency International’s Corruption Perceptions Index 2015,

India has been improving its position from 85 and 94 in 2014 and 2013, respectively.

But in terms of score, country’s score was unchanged in 2015 from 38 on a scale of 100.

Anti-corruption mechanism in India

Indian Penal Code, 1860:-

  • Section 169 of IPC, 1860, deals with the cases of public servant unlawfully buying or bidding for property.
  • In this case, public servant shall be punished with imprisonment of upto two years or with fine or both. If the property is purchased, it shall be confiscated.
  • Section 409 deals with the criminal breach of trust by a public servant.
  • The public servant shall be punished with life imprisonment or with imprisonment of upto 10 years and a fine.

The Benami Transactions (Prohibition) Act, 1988

  • The Act prohibits any benami transaction 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 upto 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 offence 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.

“Proceeds of crime” means any property obtained by a person as a result of criminal activity related to certain offences listed in the schedule to the Act.

A person can be charged with the offence of money laundering only if he has been charged with committing a scheduled offence.

The penalty for committing the offence of money laundering is rigorous imprisonment for three to seven years and a fine of uptoRs 5 lakh.

Anti-corruption Agencies:-

The three main authorities involved in inquiring, investigating and prosecuting corruption cases are:-

Central Vigilance Commission (CVC),

The Central Bureau of Investigation (CBI),

And the state Anti-Corruption Bureau (ACB).

  • Cases related to money laundering by public servants are investigated and prosecuted by the Directorate of Enforcement and the Financial Intelligence Unit (FIU).
  • The CBI and state ACBs investigate cases related to corruption under the Prevention of Corruption Act, 1988 and the Indian Penal Code, 1860.
  • The CBI’s jurisdiction is the central government and Union Territories while the state ACBs investigates cases within the states. States can refer cases to the CBI.
  • The CVC is a statutory body that supervises corruption cases in government departments.The CVC can refer cases either to the Central Vigilance Officer (CVO) in each department or to the CBI.
  • Prosecution can be initiated by an investigating agency only after it has the prior sanction of the central or state government.
  • All cases under the Prevention of Corruption Act, 1988 are tried by Special Judges who are appointed by the central or state government.

Prevention of Corruption Act, 1988

Following are the mains provisions of Prevention of Corruption Act, 1988:-

  • 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 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, he shall be penalized with 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.

Present arrangement under section 13(1) of POCA, 1988

Corruption under Section 13 (1) of the Act is defined in four different ways:-

  1. First, a public servant accepts a bribe or makes pecuniary gains without any advantage to the bribe-giver.
  2. Second, both the public servant and some other person benefit.
  3. Third, it is not known whether the public servant has benefited or not, but someone else has benefited.
  4. And lastly, no benefit has accrued to the public servant or anyone else, but a certain act has led to a loss to the exchequer.

Rationale behind proposing amendment

  • It is the 4th definition of the corruption, which has created the problems for civil servants.
  • Prosecuting civil servants for such losses would make large number of civil servants vulnerable to future prosecution.
  • It makes Civil servants prone to political and media pressure.
  • This will make civil servants more and more risk averse.
  • It inhibits fearless decision-making that may involve exercise of discretion and bona fide errors.

Prevention of Corruption (Amendment) Bill, 2013

The bill proposes some amendments to the PCA and is pending before Parliament as of now. Following are some amendments proposed:-

  • To establish that the public servant had disproportionate assets, two things would have to be proven:
  1. The possession of monetary resources or property disproportionate to his known sources of income, and
  2. The intention of the public servant to enrich himself illicitly.
  • The Bill redefines criminal misconduct by a public servant to only include:
  1. fraudulent misappropriation of property under one‟s control, and
  2. Intentional illicit enrichment and possession of disproportionate assets.
  • Government or higher officials’ sanction before prosecuting the serving officers, now has been extended to retired public servants too.
  • Deletion of Section 13(1)(d)(iii), which relates to the public servant obtaining for any person pecuniary advantage “without public interest”.
  • Bill proposes to insert a new Section 17A that would bar investigating agencies from beginning an inquiry or investigating the offences without prior approval.
  • Under the Bill, the burden of proof is transferred to the accused person only for the offence of taking a bribe. In this case, he would have to establish that the reward that he obtained was not a bribe.

Criticisms of POCA, 2013

  • Bill narrows down the definition of corruption.
  • Bill makes it more difficult to hold someone guilty of disproportionate assets as it raises the threshold of proof.
  • The proposed amendment makes it more risky for a bribe-giver to give evidence against a bribe-taker.
  • Additional layers of protection for even retired civil servants would make it difficult to prosecute corrupt public servants.
  • Inserting Section 17A means government will have the power to decide the initiation of prosecution.
  • Major proposed amendment demands prior approval from a “competent authority” even for registering a case under the PC Act against any public servant.
  • Providing civil servants with blanket immunity from either investigation or prosecution is is neither necessary nor in the larger interest of our society and our economy.

Suggestions

To reforms the anti-corruption mechanism, the structure of authorities investigating the cases should be reformed. The following measures should be taken for that purpose:-

  • Making sure that investigating agencies are insulated from extraneous influences.
  • In the present structure, vies of the investigating officers can be suspended without any cogent reason.
  • The culture should be inculcated in the investigating agencies that officers are able to express their views freely.
  • An independent prosecuting agency under a director of prosecution appointed in the same manner as a judge of the high court for the states and a judge of the Supreme Court for the Central investigating agency.
  • Power that vests with the investigating agencies needs to be balanced by ensuring independent scrutiny of evidence by a competent legal mind.
  • Special courts should be set up, to try such cases expeditiously

Conclusion

Not only does corruption in India worsen poverty, it also drags the whole country’s development down by stealing its resources. Hence much more efforts are needed so that all aspects of corruption can be dealt with.


 

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  • Captain America

    Nice.. 🙂

  • Priyanka Singh

    very awesome comprehensive article !