Explainer

Explainer: Has India's anti-corruption law been diluted?

In the new Bill, investigating agencies or police officials have to obtain prior sanctions before investigating a public official.

Days after Opposition leaders raised questions about the government’s alleged crony capitalism during the vote of no-confidence, members of Parliament came together on Tuesday to pass amendments that, critics say, amount to diluting India’s corruption law.

After being passed with a few changes in the Rajya Sabha last week, the Lok Sabha on Tuesday passed the Prevention of Corruption (Amendment) Bill, 2018. The amendments make a number of crucial changes to the law that governs how corruption is investigated and prosecuted in the country: It forces investigation agencies to get sanction before even starting an inquiry into the actions of a public servant, it expressly criminalises bribe-giving, and makes it possible for companies to be added as accused in corruption cases.

The Bill was first floated by the Congress-led government in 2013. It was then submitted to a committee, and returned to Parliament with changes made by the Bharatiya Janata Party-run government, before being passed in the Rajya Sabha on July 19.

Here is what you need to know about the amendments:

How has the definition of a corrupt public official changed?
The older law had a broad definition of a corrupt public official, defining it simply as any person who, “while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.”

The amendments narrow this definition significantly, by adding the test of intention, meaning prosecuting agencies will have to prove a conspiracy to carry out corrupt acts, rather than simply pointing to disproportionate assets or questionable actions. The updated Section 7 defines a corrupt public official as any public servant who tries to obtain or accept from any person an “undue advantage with the intention to perform or cause performance of public duty improperly or dishonestly.” This also includes receiving an undue advantage as a “reward” for improper or dishonest work.

Do the amendments differentiate between a bribe-giver and the person taking the bribe?
In the older law, bribe givers were not considered accused. At the most, they could be prosecuted as having abetted the corruption. The amendments, however, expressly criminalise bribe giving as well as bribe taking. That said, the amendments do carve out an exception for those who are “compelled”, or forced, to give a bribe or an undue advantage. This exception only applies if they report the matter within seven days after being forced to give the bribe.

What does the Bill consider as an offence committed by a public official?
The older law had an expansive view of what counted as “criminal misconduct” by public officials. It included, “any gratification... valuable thing or pecuniary advantage” obtained by a public official, either for himself or herself or for someone else, without public interest or by corrupt or illegal means.

This section was often criticised by bureaucrats and bankers, since it meant that even decisions like giving out loans could be considered a “pecuniary advantage” obtained for someone “without public interest”.

Finance Minister Arun Jaitley in June called on Parliament to change this law by insisting that it was responsible for holding back bureaucrats and bankers, of public sector banks, from taking decisions. “It creates a legislative system where even bonafide decisions, in a post-mortem done after 10 years, are found to be erroneous and people are held accountable. The only defence strategy that is available is not to take any decision. This will apply to bankers and the bureaucracy,” Jaitley said.

The amendments seek to define criminal misconduct more narrowly, by including just two clauses: “if [the public servant] dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do” or “if he intentionally enriches himself illicitly during the period of his office.”

This means that if a public servant cannot account for assets or property disproportionate to their known sources of income, then they are presumed to have intentionally enriched themselves illicitly. The changed clauses however, do not account for assets that have been illicitly procured for other people.

Why have people criticised this change?
Yogendra Yadav, National President of Swaraj India, writing in The Hindu in 2016 claimed that it is this clause that was responsible for investigations into major corruption cases in the past few years, and that diluting it would make it easier for corruption to take place. “The corrupt public servant usually receives illegal gratification in an extremely clandestine manner such as off-shore transactions or non-monetary considerations such as a better posting, post retirement benefits, etc. All major scams, right from Bofors to the 2G scam, the Commonwealth Games scam, the coal scam, etc. became criminal offences by virtue of this section,” Yadav wrote, adding that by making the provision narrower, it would be hard to pin down specific cases of corruption.

Not all agree, however. Kanu Aggarwal, writing on the India Foundation website, insists that the inclusion of the phrase, “pecuniary advantage for himself or for any other person” in the definition of corruption, as per the amendments, would mean that the law remains as expansive as it was before.

Can companies be accused of corruption?
Under the previous law, companies could only be charged with abetting corruption. The amendments however allow for “commercial entities” – corporations or partnership firms or even any association of people that does business in India – to be listed as accused in a corruption case.If there is a commercial entity accused, the amendments allow for punishment against employees or directors of the company, and also say that the organisation itself shall be punished with a fine.

Can a police official or an investigating agency take action against a public official independently?
In the older law, senior police officials and agencies like the Central Bureau of Investigation were authorised to carry out investigations against public servants without having to check with a sanctioning authority initially. The amendments, however, state that a police official or an investigating agency will have to obtain prior sanctions before starting an inquiry, whether it is against a public official who is currently in government service or has retired. The sanction has to come from the “concerned authority”, as per the amendments, and a response has to be given regarding the request within three months, extendable by another month.

The amendment Bill has not mentioned who the concerned authority is for providing sanctions for investigating a public official. However, according to the Lokpal and Lokayuktas Act, 2013, the government is supposed to set up a Lokpal at the Centre and Lokayuktas at the state level, to look into complaints of corruption against public servants – meaning it is likely to be considered the appropriate “concerned authority”.

According to Anjali Bhardwaj of National Campaign for Peoples’ Right to Information, through the new amendment Bill, the government is trying to “usurp power to give prior sanctions to investigate corrupt officials.” Bhardwaj pointed out that though the Lokpal Act has been in force since 2013, it has not been implemented, and no Lokpal has yet been appointed.

“The power to give sanctions for investigations lies with the Lokpal but the government has not implemented the Lokpal and Lokayuktas Act. There is supposed to be an independent body for this,” she said.

Senior Congress leader Anand Sharma, speaking during the debate over the amendments in the Rajya Sabha, made a similar point. “Please tell us why you haven’t formed a Lokpal in four years. We want an answer, the nation wants an answer. You’ve written in this law that the Lokpal will give the permission to conduct investigation. I have said this before. There will be no investigation because there is no Lokpal.”

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