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Saturday, July 31, 2021

Belling the mice

Addressing administrative corruption is the easy part. Policy corruption is more difficult to tackle.

Written by T S R Subramanian |
Updated: May 4, 2015 12:01:00 am
column, express column, corruption, central govt, state govt, Prevention of Corruption Act, Lalu Prasad, J. Jayalalithaa, Law Commission report, administration, delhi administration The proposed changes seem to present a coherent and effective legal weapon to tackle the menace of corruption.

Over the past 10 years, we have seen a very corrupt Central government. State governments have not been far behind. The present Union government took over with a promise of “clean administration” and the tone at the Centre has changed in the past few months. The once venal ministries of the capital now look more business-like, efficient and clean. The first major decision in furtherance of the objective was taken recently, when the cabinet approved amendments to the Prevention of Corruption Act.

The proposed changes seem to present a coherent and effective legal weapon to tackle the menace of corruption. Borrowing from legal systems elsewhere, significant new concepts have been introduced to create a well-rounded and balanced legal architecture. Penal provisions have been increased — more stringent punishment is envisaged both for the bribe giver and taker. In a significant move, bribe-giving commercial establishments have been brought under the ambit of the act. The responsibility for bribing a public servant will go right up to the head of the organisation, not be restricted to the low-level official. The concept of non-monetary gratification has also been brought in. As opposed to the long trial periods seen previously — the Lalu Prasad and J. Jayalalithaa cases that stretched into decades, for instance — a ceiling of two years has been fixed for completing the trial. A special court system has also been envisaged to bring sharper focus. These and other features create expectations that the government is serious about addressing the issue.

To give greater comfort to officials who formulate policy — often with inadequate information and without the benefit of hindsight — the procedure for prior approval for investigation/ prosecution has been extended to include retired civil servants. This has been a long-demanded reform to facilitate speedy policymaking, and should help in preventing the harassment of honest officials, who are often roped in just because they were in the decision-making loop.

The actual wording of the proposed legislation has not yet been made public. However, the press note issued by the government is silent on the question of amending or deleting Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988, on causing wilful loss to the public. There has been much speculation that this clause may actually be dropped — indeed the amendment bill of 2013 envisaged its removal on the arguably specious grounds that it leads to harassment and vexatious investigation. Those who have followed the history of the parliamentary and legal debate on this issue would recall that the 69th standing committee of the Rajya Sabha, in its report of February 2014, had strongly argued against its deletion. The recent Law Commission report on the subject has also endorsed this view. It needs to be verified whether the section is actually up for deletion. If it has been proposed, it is highly unfortunate. First, civil servants will now, under the new proposed dispensation, get suitable cover through the provision on prior sanction for the investigation process. Besides, there is no other provision to tackle wilful damage to public financial interest, particularly when any consideration, bilateral or multilateral, could be difficult to detect or ascertain prima facie. For the lay reader, it may suffice to point out that the deletion of this clause would severely damage the prosecution in many scam-related cases, especially the 2G cases and “Coalgate” — indeed, the charge against former Prime Minister Manmohan Singh flows from this section.

In case this clause has been dropped, it could not be inadvertent.

No one need be under the illusion that the war against corruption has been fully joined — the cabinet decision is only a proposal for legislation. Given the fate of so many other well-meaning bills and ordinances in Parliament, where the debate is mostly not on merit but on purely political considerations, it remains to be seen if the amendments are finally passed. However, legislation is only the beginning; implementation, through investigation, prosecution and the trial process, is even more of the essence. One has not, so far, seen an interest or urge on the part of any state government to press forward with a drive against corruption. As our democracy has evolved, the root of the issue is that politics is now an unregulated business, largely aimed at the generation of illegal wealth — do the states have the will to fight corruption? Take any state and one will find that the polity is heavily dependent on the sand, land, liquor, excise, forest and/ or builder groups, which call the shots. In our far-flung districts and state headquarters, politics is not for public service — it is a passport to unheard-of riches. This is the context in which the new proposed law will have to operate, to clean up the system. It is relatively easy for the prime minister to clean up the administration in Delhi — this process is well under way. But how will he impact the deeply entrenched political interests in our provinces and mofussils? Which chief minister will willingly shoot himself in his political foot? That is the real challenge.

It is relatively easy to tackle transactional corruption at the field level — exemplary and swift deterrent punishment will quickly start bearing fruit. But who will bell the cat? “Policy corruption” is relatively more difficult to address, particularly at the state level. Which chief minister seriously wants to tackle it and pursue it as a political goal?

Addressing administrative corruption is only a small step in the scheme of things. Electoral and political reform, as well as speeding up the judicial process, are equally critical if the war is to be joined. This is a tall order — does our polity have the stomach for it? Meanwhile, let us celebrate the first bugle sounding the charge last week in Delhi. One has to be an optimist; let this new seed sprout, and let its impact reach every part of the country.

The writer is a former cabinet secretary

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