Enforcement agencies will have a more effective framework based on which they can go after offenders.
The Prevention of Corruption (Amendment) Bill, 2013 was passed by Lok Sabha Tuesday after being cleared by Rajya Sabha last week. The Bill, which was first introduced in Rajya Sabha on 19 August 2013 during the UPA government’s regime, thus, inched towards becoming a law.
Notwithstanding its nearly five-year tortuous journey, it is surprising that the Bill is finally on the verge of being made a part of the statute, given the loud and cacophonous discourse on corruption that started with the Lokpal Movement.
It had been argued by many civil service bodies, including the Central IAS Association as well as senior, retired bureaucrats that the Prevention of Corruption Act, 1988 (PC Act) was unhappily worded and that a public servant could be convicted of ‘criminal misconduct’ even when there was no element of any direct or indirect quid pro quo.
Under Section 13(1)(d)(iii) of the Act, a public servant obtaining any valuable thing or pecuniary benefit without any ‘public interest’ could be charged for ‘criminal misconduct’.
This led to policy decisions and other bona fide actions being questioned for decades with none but the investigating officer deciding what was and what was not in public interest.
Inadequate safety net
No doubt, Section 19 of the existing Act provided a kind of safety net through mandatory prior sanction by the appointing authority of the public servant for prosecution. However, this protection did not extend to a civil servant after retirement, even if the alleged offence took place while he was in service. Thus, the investigating/ prosecuting agencies could merely wait for an officer to retire and submit the challan to the criminal court after the officer superannuated.
Similarly, under Section 6A of the Delhi Special Police Establishment Act, 1946, the CBI could not initiate either an inquiry (PE=Preliminary Enquiry) or a formal investigation (RC=Regular Case; FIR) against a serving officer of the rank and status of and above a joint secretary without specific order of the central government. However, this was not a mandatory requirement where such an officer had retired.
The amendment Bill makes it mandatory to obtain sanction for prosecution even in case of retired public servants. Even if a JS-rank officer has retired, the CBI shall not be able to unilaterally commence a PE or register an RC without the approval of the central government. This would be a major relief for the retired officers since there is no limitation whatsoever prescribed under law for taking cognisance of offences under the PC Act, 1988 read along with the CrPC.
Adequate safeguards have also been inserted in the statute where the sanction for prosecution is being sought by a private person/ complainant rather than the investigating agency of the appropriate government. This shall save a public servant from vexatious prosecution by private persons.
With regard to the contentious Section 13 of the existing Act, the new one has been amended as under:
(1) A public servant is said to commit the offence of criminal misconduct,—
(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(b) if he intentionally enriches himself illicitly during the period of his office and, he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation— For the purpose of this section, “known sources of income” means income received from any lawful source.
Thus, after the amendment, it is necessary to demonstrate that the public servant has dishonestly or fraudulently misappropriated property entrusted to him or has allowed any other person to do so. While the nebulous and draconian provision of the existing section 13 (1)(d)(iii) has been omitted, the onus to protect public property or monies from misappropriation or usurpation by “any other person” remains. Therefore, a criminally negligent public servant cannot plead there was no quid pro quo as long as a third person has misappropriated public property under his watch and supervision.
On disproportionate assets
The new amendment also removes the draconian provisions regarding “disproportionate assets”. Now, “intentional and illicit enrichment” has to be demonstrated and that too while the public servant was in office.
Similarly, disproportionate assets must relate to any period during his period in office. This is a major relief for retired officers because sanction for prosecution was not previously required in their case. As a result, their personal financial affairs could be probed intrusively long after their superannuation.
By the amendment of Section 20, the presumption of wrongdoing has been curtailed. Under the existing Act, when it is proven that a public servant has accepted any advantage for himself or another, then it shall be presumed that he did so in return for the improper performance of his public function. This applies to offences related to taking bribes and dealing with transactions that include business proceedings and criminal intimidation. The Bill changes this provision to include the presumption of wrongdoing for the offence to taking a bribe only. This is a far more balanced provision of law.
Protecting bona fide actions
The other notable feature of the Bill is that it makes bribe-giving a substantive offence – earlier, it was treated only as an abetment to an offence.
Offences related to bribing of a public servant by a commercial organisation have also been made more stringent and an entirely new chapter on “Attachment and Forfeiture of Property” has been introduced.
The proposed amendments are fair, just and equitable. While they are stringent against wilful participants in corruption, be public servants or private individuals and organisations, they are protective of bona fide actions and decisions of public servants where no quid pro quo, direct or indirect, has been established.
When this Bill becomes a law, bureaucrats would no longer have any reason to blame the Act for their own delays and indecision. Simultaneously, enforcement agencies would have a more effective framework based on which they can go after offenders who are thwarting good governance. The stage is set for implementing the ‘zero tolerance’ agenda towards corruption.
The author is an IAS officer of 1984 batch of Punjab cadre. The views expressed are his own. He can be reached @kbssidhu1961.