Bribery: who should be punished?

On the night of 14-15 August, 1947, when Pandit Nehru was busy with his Tryst with Destiny, S Radhakrishnan was cautioning the newly independent nation about the dangers of corruption, particularly in high places. He said, “unless we destroy corruption in high places, root out every trace of nepotism, love of power, profiteering and black marketing, which have spoiled the good name of this great country in recent times, we will not be able to raise the standards of efficiency in administration.”

Neither the philosopher-statesman’s words were taken seriously nor did Nehru’s threat to hang the corrupt to the nearest pole have any effect. However, the then lawmakers did make an earnest attempt by legislating the Prevention of Corruption Act, which has undergone several revisions, the latest being the Prevention of Corruption [Amendment] Act, 2018.

The proposed amendments are a bouquet of flowers and thorns. The amendment seeks to bring uniformity in some of the terms used in the original Act. Words like ‘illegal gratification’, ‘pecuniary advantage’ or ‘valuable thing’ used to indicate illegal benefit gained by a public servant are replaced by ‘undue advantage’ throughout the Act bringing it in tune with the UN Convention Against Corruption, which India has adopted.

The scope of offences relating to public servants has been widened and some explanations provided to make things clear. Now, accepting or attempting to obtain undue advantage is in itself an offence even if the performance of public duty is not or has not been improper. Further, it makes no difference whether undue advantage is obtained directly or through a third party.

Delay in prosecuting and punishing corrupt officials has been a major reason for corruption. In a large number of cases the corrupt officials go scot-free, either they retire from service or die during trial. The amendment imposes a time limit on the trial period. It must be concluded within two years.

The judge concerned has to record the reasons for any delay beyond this period. In any case, the case must be wrapped up within four years. This is a noteworthy step. The punishment to a public servant found guilty of corruption is not less than three years but may extend to seven years. Besides, the guilty is liable to pay fine.

In the last six decades, attempts were made to curb the demand side of corruption. However, the new thinking seems to be to make the supply side liable. While the intention is laudable, it is doubtful if this is possible in Indian conditions. No citizen would willingly bribe a public servant. It is not voluntary. It is a sort of extortion.

A common man is forced to pay bribe because non-payment will lead to delay and denial of a particular service. Differentiating between ‘coercive bribery’ and ‘collusive bribery’ is difficult and this issue has been dealt with by the Standing Committee. Yet, the move is worth giving a try.

Whistleblower protection

The amendment envisages a punishment with imprisonment for a term of seven years and/or fine to any person who gives or promises to give an undue advantage to another person with the intention of inducing a public servant to perform a public duty improperly. However, a citizen who is compelled to give such undue advantage will not be punished provided the harassed citizen reports the matter to the enforcement authorities within seven days.

The amendment has a space for well-meaning citizens and also commercial organisations to bring corrupt public servants to book. A citizen can inform authorities about the demand for bribe even before giving it. While the scheme on paper looks good, how many citizens will take this route?

The experiences of the Income Tax department, the Central Bureau of Investigation, and the Central Vigilance Commission, etc., are not encouraging. This provision needs to be supported by a whistleblower protection machinery. However, in case of commercial organisations, it is essential that it has to prove that it had in place adequate procedures to prevent persons associated with it from undertaking such conduct.

The need for obtaining prior sanction to carry out investigations against public servants is liable to misuse — permissions may be granted or not granted, both due to ulterior motives of the sanctioning authority. This has been debated for long but no solution has been found.

The amendment states that the investigating agency will have to obtain prior sanction before proceeding with an inquiry, whether the official is in service or has retired. Though the sanction has to be given by a ‘concerned authority’, who this authority is, is not clear.

Under the Lokpal and Lokayukta Act [not yet implemented], Lokpal and Lokayukta were empowered to give sanction for investigation. However, what is noteworthy is that sanction should be given within three to four months. What happens if sanction is not given in that timeframe is not clear. The concept of ‘deemed sanction’ in such cases would have made the law a bit more effective.