Issues for
consideration
1. Requirement of prior sanction for investigation of a
public official
The requirement of prior sanction may not be necessary at
the stage of investigation
The 2016 Select Committee amendments modify the 1988 Act to
provide that prior sanction will have to be obtained for the investigation of a
public servant. The provision states that before a police officer can begin any
investigation into an offence under the Act, prior approval of the relevant
government or competent authority must be taken. Such approval would not be
necessary in cases of arrest of a person on the spot for the offence of taking
a bribe.
Typically, a criminal investigation includes verification of
facts and circumstances and collection of evidence, to decide whether there is
a case for prosecuting the accused. 2 In the absence of such preliminary
information being made available to the relevant authority, the basis on which
it would take a decision to grant sanction for investigation is unclear.
The rationale for requiring prior sanction is to protect
public servants from harassment. However, it could result in delays in
investigation and prosecution of genuine cases of corruption. Under the 1988
Act, prior sanction must be obtained at the stage of prosecution of the public
servant. By requiring prior sanction for investigation as well, the question is
whether this protection is necessary at two stages, i.e. investigation and
prosecution.
Note that the 2nd Administrative Reforms Commission
recommended that the use of prior sanction be limited, even at the stage of
prosecution. It stated that it may not be necessary for cases (i) where a
public servant has been trapped red-handed; or (ii) of possession of assets
disproportionate to known sources of income.
Supreme Court had observed that prior sanction for
investigation could affect its efficiency
The requirement of prior sanction in the 2016 Select
Committee amendments could be at variance with the observations of the Supreme
Court on prior sanction for investigation.4 The Court had observed that such a
provision would impede an unhampered, unbiased, efficient and fearless
investigation. The Court had said this in the context of the only law that
contained a similar provision of prior sanction for investigation, the Delhi
Special Police Establishment Act, 1946.
The 1946 Act required the CBI to obtain prior approval from
the central government for investigation against a public official of the rank
of Joint Secretary and above. (This provision was subsequently struck down by
the Court on the grounds that differentiating between two classes of public
servants violated Article 14 of the Constitution.)
2. The inclusion
of giving a bribe as a specific offence
Bribe giving under all circumstances to be criminalised
Under the 1988 Act, a bribe giver may be penalised for
abetting the offence of taking a bribe. Under the 2016 Select Committee
amendments, the act of giving a bribe, directly or through a third party, is
made an offence. This is based on the United Nations Convention against
Corruption (UNCAC) which states that giving a bribe, either directly or
indirectly, should be made a punishable offence.5 India has ratified the UNCAC.
Further, the 2016 Select Committee amendments state that a
person who is compelled to give a bribe will not be charged with the offence of
bribe giving if he reports the matter to law enforcement authorities within
seven days. This is in line with recommendations of experts who have stressed
the need to distinguish between bribe givers based on the circumstances under
which they give a bribe.
However, the question is whether coerced bribe givers will
be able to report matters without fearing harassment in order to receive
immunity. Also, it is unclear if this would incentivise the reporting of
incidents of bribery.
3. Certain
offences under criminal misconduct modified
Under the 1988 Act, criminal misconduct by a public servant
covers six types of offences, including: i) using illegal means to obtain any
valuable thing or monetary reward for himself or any other person; ii) abusing
his position as a public servant to obtain a valuable thing or monetary reward
for himself or any other person; and iii) obtaining a valuable thing or
monetary reward without public interest for any person. The offences carry a
sentence of imprisonment of four years to 10 years and a fine
The 2016 Select Committee‟s Bill redefines criminal
misconduct by a public servant to only include: i) fraudulent misappropriation
of property under one‟s control, and ii) intentional illicit enrichment and
possession of disproportionate assets. Three other elements covered in the 1988
Act have now been included under separate offences in the 2016 Select Committee‟s
Bill with different punishments. Note that the offence related to obtaining a
valuable thing or monetary reward without public interest has been omitted from
the 2016 Select Committee‟s Bill.
Comparison with
the UN Convention against Corruption (UNCAC), 2005
According to the Statement of Objects and Reasons of the
2013 Bill, the amendments to the Act were introduced to bring it in line with
the UNCAC, 2005. However, certain provisions of the UNCAC have not been
included in the 2016 Select Committee‟s Bill. These include: i) giving a bribe
to a foreign public servant; ii) taking a bribe by a private sector entity; and
(iii) compensation for those aggrieved by acts of corruption.
Xxx
Explanatory: Don’t copy verbatim
With both houses of Parliament finally passing the
Prevention of Corruption (Amendment) Bill, public servants can now heave a sigh
of relief as they will now be able to take decisions without the fear of
being prosecuted, even if it turns out later that the decision was a poor one.
Indeed, it was the possibility that bureaucrats and others could be hauled up
by the police even after they had retired that made them even more reluctant
to take decisions. As former education secretary, Anil Swarup, has pointed
out to this newspaper, the original Prevention of Corruption Act (PCA) was
drafted in such a manner that, often enough, the courts had no option but to
hold officials guilty—as in the case of former coal secretary, HC Gupta, in
the coal scam case—if it was found that the decision
taken benefitted someone. Given the spate of arrests of bank officials in
the recent past, fixing the PCA was critical if the policy paralysis in the
sector had to be fixed.
Prior to Tuesday’s amendments, Section 13 (1) (d) (iii)
of PCA 1988 held that if a person “while holding office as a public servant,
obtains for any person any valuable thing or pecuniary advantage without any
public interest”, then such an act amounts to criminal misconduct. So, when it
was argued that the decisions taken by a committee headed by Gupta were
“without any public interest”—by then, the view was that coal blocks should
have been auctioned, not allocated—it was natural to sentence Gupta, even
though there was no evidence that he had personally benefitted from the
decision. This section of the PCA has been amended by saying that the public
servant will be guilty of criminal misconduct if “he intentionally enriches
himself illicitly during the period of his office”—apart from proof of a
direct bribe related to a clearance/permission, the fact that the official has
assets disproportionate to his/her sources of income can be used to prove
culpability.
And, while several have criticised this, Section 17A has
been inserted to say that even an inquiry/investigation cannot be carried out
without the approval of the government—state or Centre, depending on where
the official worked. This is another safety clause put in to protect
bureaucrats; earlier, the investigation could be carried out, but
prosecution required the government’s permission. It is true this provision
was abused on a few occasions—the central government refused to give CBI
permission to prosecute corrupt officials—but the provision will provide
relief to innocent officers whose reputation was tarnished by the police
landing up at their doorstep or summoning them to headquarters for questioning
even if, after decades, the charges against them were dismissed. And,
contrary to what critics believe, the amendments have broadened the ambit of
what is to be considered corruption by criminalising bribe-giving and also
providing for companies to be made parties to graft cases. The definition of
bribes , as in the past, includes the official trying to obtain benefits for “any
other person” like, say, a family member.
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