Law-making in democracies is seldom a cut and dried process. Public policy is a messy business full of compromises and concessions to prevailing public sentiments and expectations. The laws that emerge out of this churn further undergo a gestation period where they are assimilated into the legal system and social practice. There is often a significant time lag between the enactment of a law and its faithful observance, even in societies that have a higher level of adherence to the rule of law, than India. Given this complex relationship between law and society, it stands to reason that laws must be enacted with great care, and must be amended or repealed with even greater care.
The recent debate about the Prevention of Corruption (PC) Act demands that changes must be seen in this context.
The PC Act was passed in 1988 with a lot of expectations. It reflected a strong demand for action against corruption in high places, a demand that has only grown stronger since. In the last few years, India has seen a great deal of debate and public agitation for stronger institutional mechanisms such as the Jan Lokpal bill to counter corruption. Therefore, it is paradoxical to see that demands have been made to amend Section 13 of the PC Act, ostensibly to protect honest civil servants. The immediate context is of the former Coal Secretary H.C. Gupta protesting his prosecution in the “Coalgate” scam. This debate is not new and has been engaging legal luminaries, courts and lawmakers for quite a while now. Earlier it was about the single directive and now it is about Section 13 of the PC Act.
Currently, corruption under Section 13 (1) of the Act is defined in four different ways. First, a public servant accepts a bribe or makes pecuniary gains without any advantage to the bribe-giver. Second, both the public servant and some other person benefit. Third, it is not known whether the public servant has benefited or not, but someone else has benefited. And lastly, no benefit has accrued to the public servant or anyone else, but a certain act has led to a loss to the exchequer. There are now legal challenges to the fourth type of acts for which public servants are facing prosecutions; the principal argument being that there was no mens rea or intention. Beyond the legal issues, from a public policy point of view, it has been argued that prosecuting civil servants for such losses would make large number of civil servants vulnerable to future prosecution, particularly by an over-zealous prosecuting agency that can come under political or media pressure. This will make civil servants more and more risk averse — and the sloth of the system will perpetuate further — to the detriment of the economy and society.
Prosecution of public servants for causing a loss to the state exchequer without any other ingredient or procedural infirmities has been a rare phenomenon. Public resources are entrusted with officials and they are expected to deal with such resources like they would with their own money — take decisions with due diligence and be accountable. India continues to be one of the most corrupt countries in the world and therefore lawmakers have defined losses to the exchequer as a criminal act. Besides, the distinction between undue favour and unintended loss to the exchequer is an imaginary construct. Even the binary of omission and commission is equally problematic since civil servants can gain in terms of postings through the crime of remaining silent.
Any definition of corruption or any other crime can be misused to cause harassment and human rights violations. Merely changing or refining the language of the law will not improve investigation and prosecution of anti-corruption laws. Civil servants cannot be given blanket immunity from either investigation or prosecution. That is neither necessary nor in the larger interest of our society and our economy. The reform must focus on the following: Firstly, impartial investigation and making sure that investigating agencies are insulated from extraneous influences. A world class investigating and prosecuting set-up is an essential requirement of a society striving for “ease of doing buisiness”. Secondly, there is a need for a culture within investigating agencies where officers are able to express their views freely on file and not be dictated to by the agenda of any one officer, let alone any extraneous consideration. The current system of a rigid hierarchy or apprehension of the views of the investigating officers being superseded without cogent reasons must be frowned upon. Third, an independent prosecuting agency under a director of prosecution appointed in the same manner as a judge of the high court for the states and a judge of the Supreme Court for the Central investigating agency. The UK model of a crime prosecution service is the best safeguard, since India follows an accusatorial system and with the delay in finalisation of cases, the power that vests with the investigating agencies needs to be balanced by ensuring independent scrutiny of evidence by a competent legal mind. Fourth, there should be a clear provision not to allow arrest. The officer can face trial because arrest is too coercive a power and the damage done cannot be undone if the prosecution’s case ends in a fiasco after a decade. Fifth, special courts to try such cases expeditiously and lastly, no adverse consequences in terms of career progression unless the person so charged is convicted.
We are advocating a middle path between legal immunity and compulsory incarceration which creates fear and humiliation for the accused. Lawmakers need to attend to the requirements in view of genuine apprehensions, but not in a manner so as to throw out the baby of anti-corruption measures with the bathwater of unfair prosecution. Besides, no matter how one tweaks the language of the law, without credible investigation, prosecution and full recourse to the due process of law, the margin of error on either side will be quite serious. In the final analysis, the country can no longer delay the reforms needed to bring in professionalism and impartiality to investigating agencies and the police.
Unfortunately, those who now feel victimised or vulnerable to victimisation, have not allowed serious police reforms in the past and are unwilling to give up control even now. Without addressing the fundamental issues, we cannot carry out cosmetic changes to the law in the vain hope that the consequences will be any different. Before suggesting changes to the current PC Act, as a society, we need to ask ourselves the following questions: More than 25 years after the passage of the law, does India continue to face a persistent problem of corruption in high places, or has this been overtaken by a bigger problem of harassment of honest civil servants? Have we empirically measured the scale and the impact of any harassment of public servants by the PC Act, or are we simply basing the demand for an amendment on anecdotal evidence? Does the prevailing public mood favour any dilution of anti-corruption laws? If the problem is the credibility and impartiality of our investigating agencies, then shouldn’t we be carrying out the required institutional reforms and then consider changes in the law?
The passage of laws and their enforcement, and their subsequent amendment, are processes that should be conducted with great caution and thought. The plight of individuals must be balanced against the prevailing social realities and the larger public interest. At this juncture it would be extremely ill advised to either dilute our anti-corruption laws or weaken the anti-corruption agencies.