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Anti-Corruption Law in India: Issues and Challenges

The Prevention of Corruption Act is the foundation of the Anti-Corruption Law in India. Be that as it may, the recently amended Prevention of Corruption (Amendment) Act, 2018 makes it harder to investigate and further prosecute corrupt public servants and this has diluted the very essence of the Prevention of Corruption Act.

Although the recent amendment to the PCA has brought about effective changes to the way things would function in the future, certain sections have only made it all the more tough to investigate corrupt public servants. Few of the amendments to the act have indeed strengthened the cause to curb corruption and few of them have only made it easier for corrupt officials to escape investigation and further prosecution. This article will be dealing with the various issues of the amended Act.

Introduction
The Prevention of Corruption Act, 1988 is the foundation of the anti-corruption law in India. According to the Corruption Perception Index 2020, India is ranked at the 80th position among 180 countries with a score of 41. Although corruption is a problem that many governments have had to face over the years, the recent amendment to the act has made it all the more difficult not only to investigate but also prosecute corrupt government officials.

With that being said there are also many loopholes in the manner in which investigations are carried out and the same needs to be rectified at the earliest. The PCA came into force on 9th September 1988 and applies to all citizens of India residing in India and overseas. The Prevention of Corruption Act was introduced to curb corruption in the country and with that being said also create a fear within people not to indulge in such activities.

In India we have a number of organizations which play an important role in helping detect and curb corruption, right from the ACB to the CVC. The ACB primarily collects intelligence for detecting bribery cases and investigates cases falling under Section 5 of the PCA. Be that as it may, the CVC is not an investigative agency and only recommends punitive action against certain categories of public servants under the PCA. The CVC recommends disciplinary proceedings against Group A, B and other officers of the AIS. With that being said, the CVC as an organization is not that effective as the conviction rate in the country is quite low with respect to PCA and it has no power to initiate an inquiry against officers of the rank of JS and above.

Although the recent amendment to the PCA has brought about effective changes to the way things would function in the future, certain sections have only made it all the more tough to investigate corrupt public servants. PCA 2018 has also received a lot of criticism from the general public including eminent lawyers like Prashant Bhushan. Few of the amendments to the act have indeed strengthened the cause to curb corruption and few of them have only made it easier for corrupt officials to escape investigation and further prosecution.

Statement Of Problem
The recently amended Prevention of Corruption (Amendment) Act, 2018 makes it harder to investigate and further prosecute corrupt public servants and this has diluted the very essence of the Prevention of Corruption Act. With that being said, corrupt public servants are escaping investigations and the conviction rate under PCA is under 20 per cent in India.

Hypothesis
Corruption has always been a part of Indian governance or for that matter any government institution. Various amendments to PCA over the years have only proved to be favourable to public servants and in turn individuals in the power corridors have easily escaped prosecution and not even a proper investigation.

Objectives Of Study
  • To find out as to how corrupt public servants often escape prosecution and how public servants are falsely trapped.
  • To understand the role of the Central Vigilance Commission with respect to recommendation of initiating punitive action.
Research Questions
  • Why is prior approval even to initiate a probe against a public servant required?
  • What does “Undue Advantage” under PCA 2018 constitute?
  • Why is it that Prosecution often fails to prove evidence in courts and thereby the corrupt officials are able to escape prosecution?
Research Analysis
This project is based on the Doctrinal method of research. Various articles were referred to for carrying out this research work.
Although the recent amendment to the PCA has tightened existing provisions, it has many loopholes which I would be discussing in the following paragraphs.

Firstly, one needs to understand the role of the CVC in curbing corruption. Although the CVC is a statutory body formed on the recommendations of the Santhanam Committee, it only supervises and cannot direct the CBI to investigate any particular case as the CBI comes under the administrative control of DOPT. In the case of Subramanian Swamy v. Director, CBI[1], it was held that Section 6-A (1) of the DSPE Act was invalid and violative of Article 14 encapsulated in the text of the Constitution of India. This section dealt with prior permission required from the Central Government to conduct an inquiry or investigate into any offence alleged to have been committed under PCA 1988 concerning Central Government Officers of the rank of Joint Secretary and above.

This judgment by the Supreme Court in the above case, now allows an inquiry to be conducted against public servants above the rank of JS without prior permission from the competent authority, but this is where the twist comes. The recently amended PCA 2018 has inserted a new section which is Section 17A wherein “no police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval.”

The above clause does give immunity to honest public servants, but it becomes difficult to investigate corrupt public servants, unless caught red handed in cases of bribery. Although my analysis of the structure of how the anti-corruption bodies of India function may sound absurd, the following chart indicates the reporting authority of each organization.

CBI ---- DOPT ---- PMO

It is pretty obvious and it is the harsh reality. The CBI is a caged parrot and raids take place at the residences of opposition leaders just days before elections. The CVC is only an advisory body and the Chief Vigilance Commissioner and Vigilance Commissioners are appointed by the Government of India. These constitutional authorities were once a part of the elite IAS and Central Government. In reality, the authority of these bodies are solely dependent on the relations of these very constitutional authorities with the committee which appoints them.

This brings me to my first research question which deals with as to why permission to investigate a public official is required. Officers are often accused of frivolous corruption allegations and 17A of PCA 2018 protects them from the same. Be that as it may, in my opinion it is a justifiable provision but it has its pros and cons. Let us take for example, CBI wants to investigate an officer on grounds of corruption. They try to falsely trap an officer in connivance with another person.

This has been the trick of the CBI since inception. Eventually in the court of law, CBI fails to prosecute the individual due to lack of evidence. Due to this probe against the officer, his promotions, increments and benefits are stalled till the outcome of the court case. Court cases get stretched for years and the officer has lost on his perks. This is where the new section is useful. An officer has to take many policy decisions and at times decisions may not yield the right results.

This section also has its disadvantages. Let us say the officer is involved in corruption. Now to investigate the officer, the Police/CBI/ACB would need permission from the competent authority. The Minister is the competent authority and is involved in corruption along with the officer. It is obvious he won’t give permission to the investigative agency to conduct an inquiry. This is one drawback of the new section 17A.

Under Section 8, Sub-section 1, clause 1 and clause 2 imply that a person giving a bribe to a public servant will also be charged under the PCA 2018 unless and until he reports that he was compelled to give an undue advantage. He has to report this to the police within 7 days.

In the case of K. Veeraswamy v. Union of India[2] it was held that no criminal case can be filed against a judge of the High Court, Chief Justice of a High Court or judge of the Supreme Court, without the consultation of the Government with the Chief Justice of India. Although this case dealt with PCA within the judiciary, the majority judgment enlarged its ambit to criminal cases as well.

If the Judiciary could take such a step, giving immunity to bureaucrats is also justified. It is still a very debatable topic in India today. It is seen that prosecution often fails to prove evidence in courts with regard to cases dealing with corruption with respect to bribery cases. In the case of P. Satyanarayana Murthy v. State of A.P[3], it was observed that mere acceptance of money does not amount to illegal gratification charged under Sections 7 and 13 of PCA. The High Court of Andhra Pradesh had sustained the conviction of the appellant but the Supreme Court set aside the order of the High Court. This case was first heard in 2009 and finally decided in 2015. We can see how cases get stretched.

Therefore, we can see that both demand and acceptance are sine qua non to be convicted under Section 7 and Section 13(1)(d)(i) of PCA 1988. Earlier Criminal Misconduct under Section 13 of PCA 1988 included habitual obtaining of gratification other than legal remuneration, obtaining of pecuniary advantage etc. Now under the PCA 2018, the former has been substituted with misappropriation of property and accumulating assets disproportionate to one’s known sources of income.

Section 13(1)(d)(iii) has often been misused to harass public servants because it stated that if a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest, it would amount to criminal misconduct. If that would be the case any decision taken by a bureaucrat would benefit someone or the other. The amendment to this section in my opinion gives bureaucrats the freedom to take informed decisions without any fear.

In many cases, it is observed that sections of PCA are blatantly misused to fix public officials wherein the complainant comes to the officer with a bribe. The officer refuses the bribe but the complainant puts the money in the drawer or forcefully makes the officer touch the notes.

The ACB itself has laid a trap and comes in to conduct a chemical test wherein the colour of a solution turns pink which shows that an officer has touched the money. These types of cases often fail in the court of law as it is an established fact that mere acceptance of illegal gratification does not amount to corruption.

There has to be Demand and Acceptance which has to be proved in the Court of Law. Under Section 2(d) in the recently amended PCA 2018, Undue Advantage includes any gratification other than legal remuneration. This also includes remuneration in the form of non- pecuniary benefits and advantages as well. This is where the existing provision has been tightened.

Let us take a practical example from the above section. Government officials upon attaining the Super time Scale in the Government (Level 14 in the Pay matrix with Grade pay of 10000) are entitled to travel Business Class. There are many officers who have meetings on a regular basis in the National Capital and have to fly regularly from their Cadre to Delhi. Registration with the Frequent Flyer Programme of the particular airline helps them to earn airline points which are benefitting them in their personal capacity as well because travelling in a higher class leads to more frequent flier points.[4]

This would then amount to seeking undue advantage under 2(d) of PCA. Although it is true that many corrupt public servants often escape prosecution, the way the entire operation takes place is highly deplorable. There are cases where prosecution could not prove Demand under Illegal Gratification because the complainant expires before the case reaches the Supreme Court. Prosecution Witnesses turn hostile and do not turn up in court.

As such these officials are acquitted but not honourably. On the face of it, our Anti – Corruption Law looks very stringent but in reality there is a nexus between the police, investigative agencies, middle men and officers which is often invisible to the public eye. The addition of Section 17A (1) (a) (b) and (c) to the PCA 2018 protects public servants from investigation and this in turn dilutes the very essence of India moving towards curbing corruption.

Although the CVC was setup for curbing the menace of corruption in the country, it only prepares a list of officials recommending punitive action and it is left to the respective state governments or central ministry to take a call on disciplinary proceedings. The CVC does appoint Chief Vigilance Officers in every Ministry and Public Sector Undertaking of the Government of India. The conviction rate under the PCA is very low in India because proving evidence in the court of law is a very difficult task due to numerous reasons.

Conclusion And Suggestions
Corruption is a menace which is difficult to eradicate but not impossible to reduce. The primary reason officials indulge in corruption is because of the mediocre salaries provided by the Government. The greed for more and more will not reduce unless and until the Government makes drastic changes to the pay structure of its employees. The common man perceives it to be a regular task to pay an officer a certain amount to get some work done. It’s simple logic.

If anyone is ready to pay the bribe demanded by the officer to get the work done, the same file which usually takes months to get cleared, is cleared within days. Not everyone is a Prashant Bhushan or Arvind Kejriwal who can take on the system. The Anti-Corruption Law, no doubt is a step in the right direction but with certain provisions of the PCA, it is difficult to reduce corruption.

Section 17A is indeed very controversial as it prohibits even the investigation aspect without approval. Although this section gives officers a certain amount of immunity, there are numerous reasons as to why it is justified. Firstly, sending frivolous complains about officers to the CVC is a known fact. Secondly, investigative agencies just wait for an opportunity to fix officers to please political bosses. Suppose a departmental inquiry is initiated against an officer who has done no wrong, but the complaints prove otherwise, his promotions, allowances, increments, benefits are all stalled until the outcome of the inquiry.

The inquiry proves him to be guilty. He challenges the same in the court of law. Eventually he wins the case and the Court provides him with all benefits with retrospective effect. He may have won the case which took years for an outcome, but the most fruitful years of his career have been whitewashed due to an allegation which couldn’t be proved. This is where 17A proves to be beneficial.

There will always be issues and challenges pertaining to corruption and curbing the same would require drastic changes, suggestions for which I have stated below:
  • Increase the salary of public officials
  • Ensure strict punishment against individuals who give frivolous complaints against public officials.
  • Amend Section 2 (d) of the PCA.
Review Of Literature
For the purpose of this project research, I have reviewed the following articles which would add value to this project.
  • An article in the Economic Times by Mr. Amitabh Kant on how the recent amendment to the PCA is a game changing view. This article primarily relates to decisions taken by bureaucrats and how every decision should not be questioned and looked at from a negative angle.

    https://economictimes.indiatimes.com/news/economy/policy/view-why-new- prevention-of-corruption-bill-is-a-game-changing- move/articleshow/65234522.cms?from=mdr
  • The Prevention of Corruption ( Amendment ) Act, 2018 published in the Gazette of India includes various sections, subsections, clauses and subclauses which provide vital information regarding how the Act works and its intricacies. http://www.egazette.nic.in/writereaddata/2018/187644.pdf
     
  • This article showcases as to how Prashant Bhushan challenges the amended act and calls the recent amendment a dilution of the essence of the Prevention of Corruption Act.
    https://www.pgurus.com/prashant-bhushan-challenges-the-new-diluted-prevention-of- corruption-act-sc-issues-notice-to-government/
Bibliography
Articles:
  • https://www.newsclick.in/prior-sanction-and-condoning-abuse-power-prashant- bhushan-challenges-amendments-anti-corruption-law
  • https://economictimes.indiatimes.com/news/economy/policy/view-why-new- prevention-of-corruption-bill-is-a-game-changing- move/articleshow/65234522.cms?from=mdr
  • https://www.pgurus.com/prashant-bhushan-challenges-the-new-diluted-prevention-of- corruption-act-sc-issues-notice-to-government/prashant-bhushan-challenges-the-new- diluted-prevention-of-corruption-act/
Ministry Website / E-Gazette
  • http://legislative.gov.in/sites/default/files/A1988-49_3.pdf
  • http://www.egazette.nic.in/writereaddata/2018/187644.pdf
Legal Database
  • SCC ONLINE
End-Notes:
  1. (2014) 8 SCC 682
  2. (1991) 3 SCC 655.
  3. (2015) 10 SCC 152.
  4. This is just an example and as such does not apply to all officers. It’s just an illustration to show how the above section can be misused to falsely trap officials in frivolous matters.
Award Winning Article Is Written By: Mr.Eshaan Luke Jacques
Awarded certificate of Excellence
Authentication No: MA114299919657-22-0521

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