In November, the government approved changes to the Prevention of Corruption Act, 1988, that make it mandatory for investigating agencies to take its approval before prosecuting a government servant, unless that official has been “arrested on the spot while accepting or attempting to accept any undue advantage”. This was done to protect honest officials and to encourage them to work without fear, the government said.
The Act has been the cornerstone of the fight against corruption in India. It allowed the prosecution of senior government functionaries in the 2G spectrum and coal scams – in which telecom spectrum licences and coal mine rights were allegedly sold cheaply during the tenure of the Congress-led United Progressive Alliance government – as well as the Bofors scam, in which the Congress government in the 1980s was accused of taking kickbacks to award a contract to a Swedish company that made the Bofors guns.
The United Progressive Alliance government proposed several changes in the Act that, if approved, would weaken the law to such an extent that it would become virtually impossible to track and prosecute public servants for corruption. In April 2015, the Union cabinet under the Bharatiya Janata Party-led National Democratic Alliance government approved the amendments to the Act. And in December that year, the proposed amendments were sent to a Select Committee of Parliament for examination. The committee did roll back a few of the changes originally proposed, but recommended protection from prosecution for public officials, which the cabinet later gave its nod to.
Since then, there has been little clarity on whether the Narendra Modi government has accepted the committee’s various recommendations, or whether a new draft bill is likely to be introduced in Parliament. But that is not the worst of it. All matters pertaining to the anti-corruption law seem shrouded in secrecy, as was evident from the government’s response to a Right to Information query by Scroll.in. It seems to suggest the government is not keen on a public debate on the subject.
On October 29, Haryana Chief Minister Manohar Lal Khattar wrote a detailed demi-official letter (number CMH-2016/350) to Prime Minister Narendra Modi, listing out key problems with the proposed amendments to the anti-corruption law.
In November, Scroll.in filed an RTI application to the Prime Minister’s Office asking if it had received any document or report from any chief minister, any agency such as the Central Bureau of Investigation, any political party or political leader, or from service associations such as the Indian Administrative Service or Indian Police Service as input for the proposed amendments.
In its response, the Prime Minister’s Office said it was not in possession of any such letter or record, while adding, “DoPT [Department of Personnel and Training] is the nodal department and custodian of records in the matter.”
SE Rizvi, a director in the Prime Minister’s Office, said in reply, “Given that the CPIO, PMO [Central Public Information Officer, Prime Minister’s Office] had explored and exhausted the possibility of any information existing in his office, therefore, there is no case for providing information.”
A month later, the Department of Personnel and Training, too, sent a response saying it did not have any such record in its possession.
The letter from the Haryana chief minister had simply vanished.
The prime minister is the minister in charge of all affairs that fall within the remit of the Department of Personnel and Training, which also has a minister of state. Therefore, the fact that both government entities have said that no such records exist could mean two things: one, that they are not keen to share the documents, and two, they did not take others on board before arriving at the decision to dilute the key anti-corruption law.
Diluting the Act
And the law can be considerably weakened by some of the amendments proposed by the Congress-led government and adopted by the current regime. An analysis by Prianka Rao of PRS Legislative Service, a Delhi-based non-profit, found many such instances.
For example, the proposed law does away with Section 13 (1) (d) of the Prevention of Corruption Act, which was the key section that allowed the prosecution of senior government functionaries in the 2G spectrum, coal and Bofors scams among others. This section deals with an official “obtaining for himself or any other person any valuable thing or pecuniary advantage” by “corrupt or illegal means, or by abusing his position, or while holding office as a public servant”.
Also, Rao noted in her analysis, the original law covers nearly six types of offences while the proposed amendment covers just two.
Another important feature of the law is that “the guilt of the accused would be presumed for the following 3 offences: i) taking a bribe, ii) being a habitual offender and iii) for abetting an offence”. This unique provision allowed swift prosecution of corrupt officials. But the proposed amendments have reduced the scope of the presumption, limiting it only to the offence of taking a bribe.
The amendments also fail to distinguish between a collusive bribe-giver and one who is coerced to do so. “A collusive bribe-giver may be a habitual offender and is usually seen in cases of high corruption,” Rao told Scroll.in. “Most of the coerced bribe-givers are from petty crimes and can also become approvers during the prosecution of a case. Doing away with this distinction makes it harder for prosecuting agencies.”
Scroll.in also spoke with several senior police officers who have dealt with corruption cases for decades, and they expressed concern at the proposed amendments and the lack of clarity from the government. “Even the Law Commission, which examined this Act, doesn’t have any explanations for removing [Section 13 (1) (d)],” said a senior police officer who has worked with the Central Bureau of Investigation. “If an Act has served well for decades, then we should be strengthening it rather than weakening it.”
Many government officials, on the other hand, have tried to justify the amendments by saying these were mandated ever since India signed the United Nations Convention Against Corruption in 2011. But the fact is that the amendments weaken the standards agreed upon internationally rather than comply with them. If the amendments are approved, abetment of a crime (Section 10), conflict of interest (Section 11) and trapping middlemen (Section 8) will all be done away with or redrawn.
The Modi government claims to have intensified the war against corruption since it came to power in May 2014. In November last year, it demonetised all high-value bank notes in what it called a bid to flush out black money from the system. But its refusal to answer basic questions on the amendments to the Prevention of Corruption Act and the lack of transparency in the matter seem to suggest otherwise.