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Wednesday, April 14, 2021

To catch a thief

Who wants the Prevention of Corruption Act amended, and why, is the question.

Written by T S R Subramanian |
Updated: August 31, 2016 1:03:31 am
 coal scam, Corruption Act, Prevention of Corruption Act, harish gupta, coal block allocation, Prevention of Corruption Act amended, central government, PC act, corruption in india, corruption, upa regime, harish gupta, what is PC act, corruption eradication, coal mine allocation, political corruption, indian express opinion The fact is that the former coal secretary Harish Gupta is known to be an impeccably honest officer, whose financial or personal integrity could not be questioned — it will be a travesty of justice if he is ultimately convicted.

There is informed speculation that the Central government is considering amendments to the Prevention of Corruption Act (PC Act) 1988.

The key proposed amendments include deletion of Section 13(1)(d)(iii), which relates to the public servant obtaining for any person pecuniary advantage “without public interest”; and a proposed new addition to Section 17, mandating the approval of the “competent authority” before “commencing” any inquiry or investigation against any public servant, serving or retired. These proposals will surely cripple whatever little possible use the PC Act can be put to, in tackling the widespread corruption in our administration.

While these ideas have been floating around for years now, the immediate “provocation” appears to be the plight of a retired coal secretary to the government of India, Harish Gupta, under whose watch a large number of irregularities in coal mine allocations took place during the last UPA regime. Gupta finds himself an accused in coal scam cases in various courts — there is a widespread swell of support from the bureaucracy that he should not be “victimised”. The fact is that Gupta is known to be an impeccably honest officer, whose financial or personal integrity could not be questioned — it will be a travesty of justice if he is ultimately convicted. The issue now is whether the plight of Harish Gupta is sufficient justification for amending the PC Act, and watering down its potential to combat corruption.

Apart from the well-known personal reputation of Gupta, a standard argument trotted out for defanging an already inadequate and emaciated PC Act is to categorise Section 13(1)(d)(iii) as “unconstitutional”, as it presumes a priori guilt — in the last 25 years, the apex court has not found this clause unconstitutional. The other plank highlighted is that the PC Act should not be used to “hound” honest officers — that in its present form, it inhibits senior officers from taking risks or imaginative, innovative steps, and goads them to “play safe” — which is contrary to public interest. The cold fact is that there is dramatic improvement in the speed and quality of decision-making in the Central government in the past couple of years — attributing alleged bureaucratic paralysis to a “Draconian” PC Act is absurdity itself.

For every honest Harish Gupta, there is a large and growing number of dishonest officials. While intellectual dishonesty has always been a feature of our higher bureaucracy, apathy and lack of resistance to coloured and corrupt decision-making by a political executive has equally been visible in recent decades. Alas, there is now an open spectacle of a number of bureaucrats tangoing with the political class, particularly in the states — for mutual financial benefits. While most senior officials during the two recent UPA tenures were apathetic and looked the other way, a corrupt political executive was perpetrating one scam after the other. The growing prevalence of endemic corruption in the states through collusion between officers and ministers is now well-known. But there is still a majority of officials in states who are honourable, public-spirited and impeccably honest, even though too many may not be proactive in protecting “public interest”, preferring to look the “other way”. Alas, the official tribe willing to crawl when asked to bend is slowly but surely increasing in number and influence. This is the larger picture we need to take into account before demanding the dismantling of any existing provisions of the PC Act.

The two key ingredients in any corruption case relate to accumulation of assets disproportionate to known income, as well as acceptance of “undue” favours. The present PC Act addresses these facets. A public servant is supposed to be a “custodian” of public interest — it is her duty to speak out to protect public interest when the occasion demands — Section 13(1)(d)(iii) addresses this element. The tribe of civil servants who are basically “honest”, but acquiesce in brazen wrongdoing without protest, is growing. This section addresses their inaction, and exhorts them to stand up when they see damage to public interest. There is nothing illogical or unconstitutional in demanding that a senior civil servant must be a vigilant protector of public interest — is it only commission of wrong-doing which will be punished, but not omission to stand up when required? It is also fallacious to argue that the concept of “mens rea” has been diluted in the above provision — surely in a criminal procedure, this will be a relevant criterion.

The other major proposed amendment demands prior approval from a “competent authority” even for registering a case under the PC Act against any public servant. Essentially, what this means now is that a beat policeman or a traffic inspector or a passport official, when caught red-handed, will get away even without registration of a case, till “approval” is given. This is an absurd condition — in most departments, the corruption is institutionalised, and a share of every bribe reaches higher levels. One is now asking the fox to guard the coop! Surely those dealing with policy, who have to take decisions with incomplete information or who may turn out to be “wrong” in hindsight, need some protection against frivolous or punitive harassment. It may be worthwhile considering a situation where prior approval in such cases may have to be obtained from an independent authority, in a time-bound manner — even these may not be required in tackling corruption cases. The fact that our investigating agencies are themselves corrupt, are amenable to political “direction”, indeed are “caged parrots”, should lead to cleaning up these agencies — not to defang the legal anti-corruption instruments.

Let us ponder the efflorescence of support to Gupta’s cause — surely he is innocent at least in terms of honesty and acceptance of favours, even though he may have arguably been more pliant than he need have been. Is the real aim to let the hundreds of public servants — politicians mostly, and some civil servants — involved in coal/telecom/other scams off the hook? Is Gupta being used to save UPA scamsters? Is the real purpose to scuttle all the major cases? There is no shortage of sympathisers in the current regime, who held influential positions in an earlier government — is this their recipe to rescue the scamsters of yore? Perish the thought — is this a move to placate erstwhile UPA functionaries, to “buy” their support for legislation or administration agenda? The feeling is inescapable that Gupta is being used by some with a larger, sinister objective.

The solution is not in diluting our laws, emaciated and ineffective as they already are. The answer is to clean up our investigating agencies, and speed up the legal procedures. Equally, the political will, already amply demonstrated in cleaning up decision-making processes at the Centre, needs to be extended to the states. The real solution is in high quality political management of the issue of corruption. The Gupta case should not be used as an excuse to whitewash the past.

The writer is a former cabinet secretary

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