In 1947, India got political independence under Congress which also pledged economic independence for all its citizens within shortest possible time frame. Out of 67 years since then, this grand old party ruled India for 54 years on its own and for another 6 years running a minority government with support from other parties [National Democratic Alliance (NDA) led by BJP under Vajpayee was at the helm in the remaining 7 years].
Forget economic independence, currently majority of citizens are living under economic subjugation. They are not able to generate adequate income to make both ends meet even as their condition in regard to access to housing, water, electricity, sanitation, education and health continues to be pathetic. This is primarily because Congress never worked for their economic empowerment. Instead, it perpetuated its hold over them by giving doles.
Under a plethora of centrally sponsored welfare schemes, the government distributed hundreds of thousands of crores to millions of poor year-after-year. Ironically, even these doles did not reach them as huge chunk landed in the pockets of those (mainly corrupt politicians and bureaucrats) who were assigned the task of distributing the money.
About 3 decades back, none other than the then prime minister Mr Rajiv Gandhi (father of Mr Rahul Gandhi, contemporary ‘reluctant’ champion of those very millions of poor) had said “out of every Rupee spent under welfare schemes, only 15 paise or 15% reaches the intended beneficiaries”. Even today, this statement reverberates in the air quite often and no one has ever contradicted implying that the pipeline continues to leak.
This is a manifestation of endemic corruption that has permeated almost all institutions in the executive, legislative and judicial set up. Corruption is responsible for delay in project implementation, irrational and faulty allocation of resources, flagrant misuse of welfare schemes and large-scale generation of black money. In short, it is the single most important factor behind India’s slow growth and keeping millions in abject poverty and misery.
The cancer of corruption continues to afflict India’s despite the Prevention of Corruption Act (PCA) (1988). Although, poor and ineffective implementation has always been a big issue with most laws in India, in regard to PCA, there was a serious problem with the law itself. The manner in which this was crafted smacked of complete lack of seriousness. A dubious mindset was at work that merely created a smokescreen but did nothing to provide a deterrent to corrupt practices.
Under PCA (1988), the offender gets a minimum imprisonment of 6 months which can go up to 5 years. The offence does not fall in the category of a heinous crime despite its very serious ramifications affecting the life and even sustenance for millions of people. Imagine, if farmers devastated by recent rains and hailstorm do not receive compensation due to corrupt acts of officials.
Besides, punishment irrespective of the scale has no meaning unless the offense is proven and established in a court within a ‘reasonable’ period of time. The present Act does not prescribe any time limit for conclusion of prosecution. So, investigations and prosecution proceedings can linger on for decades thereby letting the offender go off the hook easily.
An act of corruption that causes loss to the nation leads to corresponding benefit to the official who misuses his position to grant a favour to industrialist/businessman. Such unjust enrichment (resulting in possession of assets disproportionate to his known sources of income) is the inevitable outcome of the corrupt practice. Yet, the extant law does not take cognizance of the link between the two which is so clear-cut. It does not consider possession of disproportionate assets as proof of illegal enrichment.
Under the Act, trial courts do not have powers to attach the assets/property of offender. For this, they have to seek permission of District Judges. This is a time consuming process which can drag on for years. Clearly, this works to the advantage of official who goes on with his nefarious activities without fear.
Major acts of corruption involve corporate entities. Thus, big scams be it coal gate or 2G involved huge pay-offs by companies to politicians/officials. No company executive can ever indulge in such acts without prior consent/ authorization of promoters/owners. Yet, under the Act, it is always the former who faces punishment even when the facts and circumstances clearly demonstrate that the act of giving bribe was authorized by the latter.
Clearly, the Act allows a corrupt official to go off the hook. At the same time, it has a provision “without mens rea, or a proven intent to commit a criminal act, one cannot be held guilty” that is open to multiple interpretations. It may even result in prosecution of an honest bureaucrat. Thus, even when an official is not involved in a quid pro quo (receiving a pecuniary advantage in exchange of a favor) and intent of a criminal act gets established, he could go to jail!
The resulting uncertainties and fear of prosecution has led to a situation whereby bureaucrats have simply positioned themselves in the yellow zone; staying away from taking any decisions. This has led to policy paralysis and governance processes getting jammed. To retrieve the situation, Modi – government has come in to swift action mode and approved amendments to the Act in a cabinet meeting held on April 29, 2015.
The amendment proposes a minimum sentence of 3 years and a maximum of 7 years. The seven year term will bring graft cases under the category of heinous crimes. Also, if a bureaucrat who is under investigation, is found to have assets that are disproportionate to his known sources of income, those assets will be considered as proof of illegal enrichment. The amendments require that the trial be completed in 2 years. Trial courts are also being endowed with attachment powers.
With regard to corporate bribery, proposed amendment brings bribe-giving corporate entities under the ambit of anti-corruption law. This will be a landmark shift from current practice of prosecuting individuals even if they are working on behalf of corporate entity. Guidelines for corporate on how to prevent their employees and associates from bribing government officials are also included. Any deviation from guidelines will dealt with sternly.
While, proposing a regime that provides strong deterrence to a corrupt official, Modi – government is equally determined to provide a protective shield to honest bureaucrat who could be the target of malicious trials. At one level, the amendments will draw a clear distinction between honest mistakes/genuine errors on one hand and illegal acts driven by corrupt motives on the other.
At another level, the complainant must seek prior permission from an ombudsman before filing a case against a bureaucrat. This will be particularly relevant to cases where a given policy decision/recommendation may have the effect of triggering controversies due to its differential impact of various sections of industry or businesses.
Modi got a massive mandate on the plank of ‘good governance’ and ‘development’. He vowed to root out corruption being a sine qua non of god governance. In this endeavor, during the last one year or so, his government has taken several steps viz., simplifying procedures, bringing in transparency and accountability, maximum use of IT and focus on e-governance in transacting business and inculcating the philosophy of ‘zero tolerance’ for corruption within the political class/ministers/MPs and the bureaucracy.
And, now it is capping these efforts by plugging loopholes in the extant law against corruption. Like any other legislation, while getting these amendments approved in Lok Sabha is foregone conclusion, the real test will be in Rajya Sabha where NDA is in minority. The opposition parties including Congress will need to rise above their narrow political interest and make way for their approval in the overarching national interest.