Amending the law against corruption

Not all the amendments to the Prevention of Corruption Act cleared by the Union Cabinet last week inspire public confidence or meet the objective of filling gaps in domestic anti-corruption law. In significant respects, the proposals fall short of public expectations and fail to address key issues in corruption jurisprudence. In its Bill introduced in the Rajya Sabha in 2013, the UPA government proposed to extend the protection of prior sanction for prosecuting public servants to former officials. The ostensible reason was that Section 197 of the Code of Criminal Procedure protected retired officials, while the PCA covered only serving officials. The government wants to stick to this change, when it would have been more advisable to bring the CrPC in consonance with the PCA. The sanction provision ought to have been restricted to prosecutions that flow from deviations from public policy, laws and regulations. Possessing unexplained assets, being caught red-handed while taking a bribe and misappropriating property cannot be actions in the course of official functions, and in such cases prior sanction cannot be required. The Bill drops the protection accorded to bribe-givers if they depose during trial, thereby deterring those coerced into giving a bribe from subsequently testifying against offenders. A distinction ought to have been made between collusive bribery and bribery under coercion.

The expanded provision relating to bribery and enhanced jail terms are positive developments, but the idea of subsuming most offences now covered under ‘criminal misconduct’ into a single clause should be revisited, lest some form of abuse of office slips through the net. Another worrisome aspect is the change made to the offence of possessing ‘disproportionate assets’. When the 2013 Bill used the term ‘intentional enrichment’, it seemed as though the prosecution needed to prove the possession of unexplained assets as well as the ‘intention’ to enrich oneself. The government now says “possession of disproportionate assets” will be proof of “such illicit enrichment”. It is to be hoped that this will mean the prosecution need not prove the intention to amass wealth, as such an additional requirement would allow those in possession of ill-gotten wealth to escape the law. The proposed amendments have positive aspects too. They seek to curb commercial entities from offering inducements to public servants and provide for punishments to individuals in charge of such entities. The trial court itself can now deal with the process of attachment of property instead of the district court. Fixing a time frame for grant of sanction and completion of trial is a welcome feature. A crucial opportunity to overhaul the anti-corruption law should not be lost through imperfect amendments.

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