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In bad faith

Criminal prosecution should focus on moral culpability,not poor decisionmaking.

Written by Mani Gupta |
November 25, 2013 5:39:23 am

Criminal prosecution should focus on moral culpability,not poor decisionmaking.

Earlier this month,the prime minister and the finance minister addressed the Central Bureau of Investigation at its golden jubilee celebrations. Both specifically raised the issue of questioning policy decisions under the guise of enquiring into corruption cases. The CBI was also cautioned not to transgress the line between policing and policymaking. To approach this issue head-on is timely,given the impression of paralysis in decision- and policymaking.

The PM and FM both raised the issue of mens rea in offences under the Prevention of Corruption Act,1988 (PCA). While the PM spoke of the amendments sought to be made to the PCA to introduce mens rea to the crimes covered,the FM laid down an approach to financial crimes and the requirement to prove mens rea for the same.

Mens rea is the cornerstone of most modern criminal justice systems and volumes have been dedicated to the subject by jurists. In simple words,it refers to the criminal state of mind of the accused at the time the offence was committed. Under the Indian criminal justice system,the burden of proving the guilt of a person rests on the prosecution and,ordinarily,an accused person’s criminal intention must be proved in order to establish his guilt.

The PCA criminalises several acts,such as a public servant accepting illegal gratification for the performance of his duties,owning disproportionate assets,obtaining pecuniary advantage using corrupt or illegal means and obtaining pecuniary advantage for another without public interest. The FM stated in his speech that the last of these provisions — obtaining pecuniary benefit for another without any public interest,covered under Section 13(1)(d)(iii) — has been misinterpreted by the CBI and the courts as a strict liability offence. In strict liability offences,no mens rea is required to be proved.

This issue was decided by a division bench of the Delhi High Court in 2011 in Runu Ghosh vs CBI. The matter is under appeal before the Supreme Court. While holding that mens rea is not required to be proved in an offence under Section 13(1)(d)(iii) of the PCA,the high court clarified that only those acts of a public servant that are done with a complete disregard for the public interest,and by flouting norms,would be punishable under this section. The court also held that a public servant would not be guilty if he can show that despite the exercise of necessary due diligence by him there was a loss of public interest.

Interestingly,the Supreme Court,in a recent case (C.K. Jaffer Sharief vs State),had held that Section 13(1)(d) requires mens rea to be proved. However,the judgment did not specifically rule on subclause (iii) of the provision,and it is not clear from the discussion that the judges implied its inclusion. Similarly,the Supreme Court did not frame an issue and rule on this aspect in the case filed by Subramanian Swamy on the 2G matter. Therefore,it is yet to be seen whether the Supreme Court agrees with the Delhi high court’s interpretation of this section.

The planned amendments to the PCA are in line with the United Nations Convention against Corruption and closely resemble the Bribery Act passed in the United Kingdom in 2010. Under the amendment bill,corruption has been linked to improper performance of a public function and receipt of illegal gratification. The proposed amendment to Section 20 of the act also shifts the burden of proof on to the public servant,who has to show that he indeed discharged his functions properly,if the prosecution is able to show that he received any consideration.

While the argument that government officials should be subject to greater scrutiny is well taken,it is also necessary to remember that criminal prosecution should generally be based on moral culpability and not just bad decision-making. Policy decisions of the government are already subject to judicial review to test if they are unreasonable or mala fide or against the scheme of the Constitution.

Public servants should not be shackled by the threat of criminal prosecution. If indeed a bribe is the motivation for a certain act or omission by a public servant,criminal prosecution should follow. The result of the recent overzealous interpretations of the law is the systemic paralysis witnessed in India. Interpreted and implemented in its current form,the PCA has the potential to stifle decision-making and encourage public servants to cover their tracks. It is wise to remember that even public servants cannot foresee the future. As Gandalf the Grey (in The Lord of the Rings) put it,“even the very wise cannot see all ends”.

The writer is a Delhi-based lawyer

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