Opinion Civil obedience

Why criminal prosecution is not the best option against corruption?

August 17, 2011 12:25 AM IST First published on: Aug 17, 2011 at 12:25 AM IST

Many people who are otherwise humane and reasonable seem to be very happy that allegedly corrupt politicians (note the word allegedly; emphatic proof is months or even years away) are denied bail when these folks are still undertrials. The argument goes that since they are likely to be let off finally,let them at least cool their heels for now in Tihar and other centres of incarceration. This casual acceptance of an utterly unfair and inhuman situation has arisen precisely because everyone feels that the corrupt get away all too easily. Instead of looking for a systemic fix,once again we are descending to the level of becoming ghoulish mobs who take delight in the discomfiture of the rich and the powerful even if this means a violation of the well-established rights of habeas corpus and bail. This approach is a perilous one indeed and needs to be resisted by all of us who are committed to a sober justice system .

Corruption at the end of the day is a white-collar fraud. People are corrupt in order to make money and get ahead in this world. And white-collar fraud is not at all easily susceptible to criminal prosecution and punishment. Let us not forget that a criminal conviction needs that the offence be proved beyond all reasonable doubt. Paper trails and witness testimony in the case of white-collar frauds and embezzlement are inherently subject to multiple interpretations,unlike in cases of physical violence like murder,rape or assault. After all,one Monday morning I might wake up and for no reason in particular want to give a loan to a minister or make a donation to a charity sponsored by a ministers spouse or,for that matter,write out a cheque to an NGO set up by a retired bureaucrat. How can a court not accept the argument that these acts were based on voluntary large-heartedness and not for any sinister reason? Even if the judge strongly suspects a sinister reason,is the judicial tradition not bound to agree that there is some reasonable doubt? On this ground alone,many corruption trials are bound to flounder.

Now,if we were to look at corruption through the lens of a civil rather than a criminal action,we are immediately on a stronger wicket. In a civil proceeding,one need not prove something beyond all reasonable doubt. It is sufficient if the preponderance of evidence points in a direction. If my company or I have never given loans in the past or never given large donations,and if a week before or after my generous action,I have benefited directly or indirectly by receiving a government licence,contract or lease,that would constitute preponderance of evidence. Now the onus will be on me to prove that I had a fit of large-heartedness one Monday morning! This has always been the case in income-tax matters. If there is an unexplained credit in my account,the income-tax officer calmly proceeds to assume that the credit constitutes income,levies tax on the credited amount and also interest and penalty if I have not paid tax in advance. Now I have to run around proving that the credit was legitimate and perhaps a gift from a sibling and not liable to tax.

With or without the Lokayukta and the Lokpal in place,this columnist would like to submit that civil action is the best way to proceed against corruption. It takes us away from the present inefficient process of 10,000-page CBI chargesheets which finally fail to result in convictions; it eliminates the need for perversion of justice by denying bail to the powerful merely to satisfy the vengeful instincts of the mob. What we need is an anti-corruption agency,call it what you will,which behaves like an income-tax officer. All suspicious accounting entries will result in back taxes,interest and penalty charges that pretty much wipe out the illicit gains of corruption. And an entry will be established as suspicious before a tribunal or a court using the test of preponderance of evidence,not that of beyond all reasonable doubt. Benami transactions should have extra penalties imposed on them and facilitators of the same,including banks who are negligent in their Know Your Customer operations,should be made liable for a notional TDS and slapped with tax liabilities and fines. Individuals and companies who accept loans from persons without a reasonable business nexus would automatically be assessed for incomes as well as trusts that accept strange donations. The onus to prove that these are not inexplicable or strange will no longer be with the prosecution. Corrupt persons who now live with the fear that their ill-gotten wealth may be snatched away by civil action will have less incentive to be corrupt. And their ability to hide behind the cloak of innocent till proved guilty will be of no help in hanging on to their wealth. The mighty Al Capone was able to subvert the police and terrorise many judges. But he too had to quail in front of a methodical income tax officer. He was sent to jail for tax evasion (an inability to explain accounting entries) and not for gangland killings!

As the nation debates the issue of corruption and how best to minimise it (eliminating it is not a realistic prospect unless you believe in fairies),while we are entitled to consider new laws and new institutions,let us also spend time and quality thought on figuring out the most optimal process to deal with it. We must avoid summary proceedings,like prolonged denial of bail; we must move away from the cynical assumption that the corrupt will get away; we can and we should move to a process where the corrupt will not be able to enjoy the fruits of their corruption. The secret may lie in civil procedures seeking preponderance of evidence rather than criminal ones seeking evidence beyond all reasonable doubt.

The writer is chairman,Nasscom Foundation
express@expressindia.com