In emerging economies like India, the most crucial factor in people’s lives is incomes they have and quality of infrastructure, healthcare and education support provided by the state. While we are the third largest economy in PPP terms, our per capita income is extremely low. We are categorised as a low-middle income country by the World Bank. Huge poverty and extensive malnutrition exists in our country. We need to grow at a sustained level of 8 per cent plus for next 2 decades to get a respectable middle-income level. Corruption results in misuse of public funds and wastage of taxpayer’s money. It slows growth. In the global polities, we are ranked 81st, much below China, Malaysia, S Africa, Singapore, Sri Lanka, Bhutan, and most of western and European economies. Our governance institutions are weak. They are not effective enough to ensure expeditious trial of corrupt ministers and civil servants and protection of honest. We need our civil service to be able to innovate and take tough decisions and not shuffle papers from one desk to the other. Public servants must not be unduly worried that due to deficient anti-corruption laws its bona fide actions will be questioned later and one will land up in jail, spoil his lifelong reputation and spend his pension on lawyers defending cases launched by the government. The recent amendments to the Prevention of Corruption Act 1988 meet some of these concerns.
The amendments to the PC Act cover broadly 4 areas. First, under section 8 of the Act bribe-giver is liable up to 7 years punishment . But if one is being coerced to pay such bribes, he can approach anti-corruption agencies within a prescribed period. This amendment has brought our law in full compliance of the UN convention against anti-corruption of which India is a signatory. It has also made criminally responsible the bribe givers. Unless there are people willing to stand up, we can’t limit the supply side of corruption. Many private business houses, which thrive on bribing the bureaucracy, are now equally liable.
Second, amendment to section 13(1) has done away with the draconian provision of section 13(1)(d)(iii) under which public servants could be punished even for bona fide acts. Under the new law a public servant is liable for criminal misconduct if he has intentionally enriched himself illicitly during the period of his office or he dishonestly or fraudulently misappropriates or converts for his own use any property entrusted to him or any property under his control. This introduces responsibility on public servants for corruption where his actions are dishonest. This implies that for bona fide acts public servants are not liable and only manifestly corrupt dishonest acts where he enriches himself, action under this provision can be taken.
Third, under section 17A of the Act police officers have been barred from conducting an inquiry or investigation without the approval of central or state government where the said offence relates to any recommendation made or decision taken by such public servant in discharge of his official function or duties. This protection is available to the retired public servants or officials, too. Such decision of the government or authority concerned for permitting inquiry has to be given within 4 months after the request is made to it. It has provided added protection to honest civil servants, particularly those who are pensioners and have limited income. It also would result in unnecessary mudslinging where inquiries are initiated and leaked to the press by interested parties. Even when nothing comes out of inquiry, the mudslinging besmirches the reputation of officers earned over a lifetime. It will provide protection against this.
Fourth, there are other provisions relating to time-bound disposal of such cases and a fuller exposition defining ‘advantage’, which can be gained by corrupt public servants. These amendments to the PC Act will provide much greater protection to honest civil servants than was available so far. It will promote tough decisions by upright public servants without fear of being hounded in court during service or after retirement. This will improve overall governance.
There are two main criticism of the act.
First, it has been argued that the anti-corruption agencies like CBI have now become toothless, as these will under the new law require the government approval for conducting an inquiry, enquiry or investigation about corrupt acts. It has to be realised that this provision is similar to the Lokpal Act. This preliminary check by the government will ensure that full consideration is given to the background attending certain decisions and inquiries are initiated only after that. Also, there is a time limit of 4 months for the government to give such approvals. Rules can be framed by the government providing for deemed approval if no decision is taken during this time. The government will have to make this process transparent and credible. It can provide for consultation with Lokpal. The broad approach will have to be ‘punish the corrupt and protect honest decisions’. But rules that will provide for such enquiry will need to be framed carefully so as to meet the objective of a clean government.
There is also a worry that ministers and civil servants are deeply mired in corruption and permission for enquiries may be denied. We must realise that even now CBI, the premier investigating agency, is influenced in many cases informally by the government and has been referred to as caged parrot. Since in many states and Centre, political parties lose elections and go out of power periodically and with greater frequency and new parties come in power, even when permission for enquiry against corrupt is denied, the permission could be given by new governments. Also in case of abuse of power and denial, judiciary may intervene. The initiation of enquiries against a number of politicians in last few years by the central agencies only illustrates the point.
Second, it has been mentioned by some critics that by deleting section 13(1)(d)(iii) many corrupt officials who connive in wrong acts of ministers may go scot-free as getting proof of advantage gained is difficult. It has to be realised that the PC Act is aimed to curb corruption. Under new law ministers and officers amassing illicit wealth will go to jail. We can’t, however, evolve new definitions of corruption and send to jail officials taking bona fide decisions without any proof of ‘quid pro quo’. While criminal proceedings may not be warranted in many such cases, disciplinary action may still be required where officials have been careless. The government will have to ensure that in such cases action is taken expeditiously, procedure made simple and punishment awarded quickly. Also, officials could be repeatedly reminded of the policy to be transparent and fair in decision taking especially in economic ministries to ensure better compliance of government procedures.
Probity in public life is dependent upon level of economic well-being of people, simplicity of our rules providing public services, our ability to control corruption in electoral process and how quickly we punish the corrupt ministers and senior civil servants who amass illicit wealth. The amended law is a good opportunity to improve governance, encourage honest civil servants to take risks and decisions for faster growth. But we would need to act simultaneously on several fronts to enable development of a more ethical society. The amended law is a good beginning. Unless we act quickly, we can’t have a modern nation meeting the needs of 21st century.
(The author is a former cabinet secretary and member planning commission)