How not to fight corruption

Rather than criminalising bribegivers, the objective of combating coercive corruption would be achieved if the government puts in place a grievance redress mechanism

May 06, 2016 02:33 am | Updated 02:37 am IST

"If the Modi government is serious about tackling corruption, it should, in addition to re-introducing the grievance redress bill, immediately operationalise the Lokpal Act and the Whistle Blowers Protection Act." Photo: K. Gopinathan

"If the Modi government is serious about tackling corruption, it should, in addition to re-introducing the grievance redress bill, immediately operationalise the Lokpal Act and the Whistle Blowers Protection Act." Photo: K. Gopinathan

The Prevention of Corruption Act (PCA), the key legislation which defines what constitutes corruption and prescribes penalties for corruption-related offences, is set to be amended by Parliament. The proposed Bill, now before a select committee of the Rajya Sabha, includes several contentious amendments that are likely to have far-reaching ramifications. They require considerable deliberation.

First, the proposed amendments make all actual and potential bribe-givers offenders under the PCA. How fair is it to criminalise all bribe giving in a country like ours, where people are forced to pay bribes even to get their basic entitlements like rations, pensions, education and health facilities? The PCA already criminalises those who abet corruption. While it is desirable to treat giving bribes aimed at receiving illegitimate gains as an offence, people, especially the poor and the marginalised, are often forced to pay bribes to get what is legitimately theirs. If they are also prosecuted, it would be a double wrong.

Disincentivising reporting

Imagine a poor man who rushes his young daughter to hospital after she has got badly burnt, and finds the doctor demanding a bribe to treat her. What options does he have? If he doesn’t pay the bribe, he risks losing his daughter’s life. On the other hand, if he pays it (clearly under duress), the proposed amendments to the PCA make him as guilty as the receiver — he could be in prison for up to seven years! Forcing people into this dilemma would only further the culture of impunity by disincentivising reporting of corruption by bribe-givers.

Therefore, the proposed amendments to the PCA are, practically and morally, a retrograde step. The government would be well advised to reconsider this and offer immunity to at least three types of bribe-givers. First, those who are coerced to pay a bribe to obtain their legal entitlements; second, those who voluntarily come forward to complain and bear witness against corrupt public officials; and third, those who are willing to turn approvers. For the second and third categories though, immunity should be provided only from criminal liability — bribe-givers must be made to return any benefit they secured as a result of the bribe. Providing immunity to these categories of bribe-givers would encourage them to complain about corruption and ensure that corruption is not a low-risk, high-return activity.

Rather than criminalising bribe-givers who are forced to pay bribes to get their legal entitlements, the objective of combating coercive corruption would be more effectively achieved if the government puts in place a comprehensive grievance redress mechanism. Currently, if anyone files a complaint regarding denial of their entitlements, the complainant almost never gets redress nor is any penal action initiated against the guilty. This can be remedied by the enactment of the grievance redress bill, which was introduced in the Parliament in 2011 and had support across party lines, but unfortunately lapsed with the dissolution of the last Lok Sabha.

Approval for investigation

The second prickly issue is the need to seek prior approval for investigation into certain cases of corruption. The amendments state that complaints regarding corruption that relate to decisions taken or recommendations made by public servants in the discharge of their official duty, shall not be investigated without the prior approval of the Lokpal or Lokayuktas, as the case maybe. Such complaints shall be forwarded to, and deemed to be complaints made to the Lokpal or Lokayuktas.

The Minister concerned clarified in the Rajya Sabha that the objective of these amendments is to safeguard public servants who are in decision-making positions, so that they may take decisions without fear of harassment. He said that the amendments were meant to replace Section 6A of the Delhi Special Police Establishment Act, which was struck down by the Supreme Court. Section 6A mandated prior sanctions for investigation for officials of the rank of joint secretary and above, as they are in decision-making positions.

However, these amendments will potentially lead to great confusion and unending litigation. How will the police, without investigation, unambiguously determine whether the alleged act of corruption is relatable to a decision taken or recommendation made by a public servant?

To avoid confusion, the proposed amendments must either be dropped or state that complaints about all offences under the PCA shall be dealt with by the Lokpal at the Central level and Lokayuktas at the State level, for all categories of public servants covered in the respective laws.

Existing instruments

Finally, despite widespread public opinion against the necessity to seek the government’s permission before prosecuting a public servant for corruption, the amendments seek to strengthen this provision by increasing the cover to even retired public officials. Unfortunately, experience in India has shown that the requirement for seeking prior sanction from the government for prosecution is a critical bottleneck and results not only in huge delays but also in the accused often never being prosecuted. The PCA must insulate prosecuting agencies from government influence. The Lokpal law has vested the power of granting sanction for prosecution in the Lokpal. The proposed amendments must appropriately reflect this. Wherever the procedure for granting prosecution is defined in the Lokpal or Lokayukta laws, it should be applicable. For all other cases, including where no Lokpal or Lokayukta has been set up, an independent committee should be tasked with the responsibility of giving prior approval for prosecution.

If the Modi government is serious about tackling corruption, it should, in addition to re-introducing the grievance redress bill, immediately operationalise the Lokpal Act and the Whistle Blowers Protection Act which were passed by Parliament more than two years ago. These laws, together with the PCA, form the necessary anti-corruption statutory framework.

Anjali Bhardwaj and Amrita Johri are activists working on issues of transparency and accountability, and associated with the National Campaign for Peoples’ Right to Information.

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