Article for Blog Post Writing Competition 2011 | by Kush Kalra and Rubal Garg
April 17th, 2011 → 1:52 pm
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“Corruption is like diabetes can only be controlled but cannot totally be eliminated”
-Anonymous
The Problem of Definition
Everyone knows what corruption is; but it is difficult to define it in exact terms.
According to the Oxford English Dictionary,[1] the word ‘corrupt’ means “influenced by bribery, especially at the time of elections”. Encyclopedia Britanica[2]says a corrupt practice “includes bribery; but has reference to the electoral systems”. But these, as will be seen, are not definitions.
Corruption may be alternatively defined as unlawful practices. Thus, Section 161 of the Indian Penal Code[3] defines corruption as follows:
“Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain gratification whatever, other than legal remuneration as a motive or a reward for doing or forbearing to do any official act or for showing or forbearing to show, in exercise of his official functions, favour or disfavor to any person with the Central or State Government or Parliament or Legislature of any State or with any public servants as such…….”
Corruption as viewed in Criminal Law
Corruption has always been considered a serious type of anti-social act in criminal law. In India, the first codified criminal law i.e. the Indian Penal Code, 1860, contained a full chapter[4] which dealt with corruption. However, it confined its operation to those defined as public servants under Section 21 of the code. Mainly misconduct and abuse of power by public servants were covered under this chapter. Being governed by the traditional rules of criminal liability, the provisions in the I.P.C. could not successfully combat corruption by public servants who constituted a powerful class which had a considerable influence for titling the scales of justice. Moreover, the definition of the public servant suffered from many defects as many important functionaries engaged in discharging public duties were left out of the definition of public servant. However, the redeeming feature of the period till the start of the First world war was that the people in India, by and large were bound by moral values which abhorred corruption than by materialistic considerations of the industralised western world.
The scope of bribery and corruption by public servants had considerably increased due to war conditions. Even after the Second World War opportunities for corrupt practices remained for a considerable time. Extensive schemes for post war reconstruction opened wide new avenues for corruption among public servants. However, the existing provisions of the I.P.C were found to be insufficient for effective handling and controlling of corrupt public servants.[5] Therefore, to supplement and strengthen law against corruption, the Prevention of Corruption Act, 1947, entered the statute book. The Act being social legislation aimed at eradicating corruption, changed the traditional rules of criminal liability by presuming mens rea on the part of public servant if actus reus was proved.[6] Criminal misconduct in the discharge of official duty was made an offence Under Section 5 of the Act. However, it neither gave separate definition of public servant nor made improvements in Section 21 of the I.P.C through special amending clause. Generally, public servants were prosecuted under Section 161 of the I.P.C[7] read with Section 5 of the Act. In pursuance of the recommendations of the Santhanam Committee for taking stringent measures against rampant corruption the Act was amended in 1964.
Inspite of the amendment of the Act, the situation viciated by corrupt practices could not be redeemed. Rather corruption expanded its sphere of activity by engulfing the entire society. Even the elected representatives of the people who are supposed to be the repository of public faith by discharging their duties with honesty and integrity succumbed to the vagaries of corruption by sharing its booty with public servants. Efforts made for bringing political corruption within the purview of the Act did not succeed as elected representatives through whom most of the corruption is routed through were not considered as public servants.[8]
Ineffective Operation of Criminal Law against Corruption
Inspite of the laudable role of summit court, in upholding rule of law in the administration of criminal justice by giving free hand to the top investigation agencies[9] in corruption cases involving top politicians, bureaucrats and public men, the wheels of criminal justice have got struck up in the quagmire of legal niceties being preached by legal luminaries who happen to defend thieves of public trust of the people of the largest democracy of the world. The trail procedure is hampered as the proceedings are stayed on one pretext or the other. Sometimes, there is a backtracking taking the situation back to the square one. Non-conclusion of trail proceedings in all mega scams and bribery cases, mentioned in the preceding discussion, is ample proof of the tardy pace of our criminal justice system despite a constitutional mandate of speedy justice. The lurking fear of political uncertainty and clandestine operation of the powerful accused for winning over the witnesses and brow beating the prosecuting are some of the reasons which reader anti-corruption laws ineffective despite presumption of mens rea on the part of accused and changes in rules of criminal liability for curbing corruption.[10]
Even in ordinary cases of corruption, the Act has failed to achieve its objects. Despite the fact that investigation of corruption cases is conducted by a senior police officer not below the rank of Deputy Superintendent of Police [11] and the case are to be tried by a senior-judicial officer(special judge) of long experience not below the rank of additional Session Judge,[12] the operation of criminal justice system is dismal.
A perusal of the working of the anti-corruption laws in India and in the previous years leads to the conclusion that the anti-corruption Act, 1988 being considered as the strong arm of criminal law has been reduced to the status of ineffective legislation being fractured by the powerful mafia patronizing corruption through the influence it wields in every sphere of life because of its nexus with politicians, bureaucrats and publicmen of prominence. Various directions issued by the Supreme Court regarding successful working of the Act have been forgotten in oblivion.
Acknowledging the Difference: Is there a Solution?
Some recommendations are as under:
* Investigative agencies like the police and the Central Bureau of Investigation, whilst being operated under the auspices of the government, must be allowed to investigate freely and without any interference. Long-pending reforms for the police force must be implemented which will make appointments and therefore investigations transparent.
* As more Indian companies venture overseas, the government should consider implementing law similar to the Foreign Corrupt Practices Act, 1977 (“FCPA”) prevalent in the United States of America. Interestingly, FCPA has extra territorial effect, which provides an adequate deterrent.
Conclusion
The vice of corruption which is now a way of life and a potent threat to polity, has degenerated the Indian Society by rupturing its moral fabric. The cancer of corruption is an insidious host which is more dangerous than the army of the enemy at our frontiers. We can visualize the movements of the enemy and modulate our defence accordingly but we are helpless before the insidious host who is eroding the sound bases of our socio-economic legal set-up by clandestine dubious operations. When a country faces a particular danger from a particular problem, may it be terrorism or corruption, it has to be countered by stringent legal measures which have the support or approval of the society at large for those interest the emergency measures are pressed into service. Corruption which has been equated with the disease of cancer in India by the Honourable Supreme Court should be projected as the most serious problem of the modern India which deserves deterrent treatment at every stage of criminal justice system. General awareness regarding dangerous consequences of corruption has to be created. Awakening of masses through strong public opinion is the prime need of the time. A multipronged socio-legal approach against corruption can go a long way in analyzing and controlling corruption in its correct Indian perspective. If quick urgent steps are not taken at all levels for proper enforcement of anti-corruption laws in India, it may continue to dispense injustice as aptly pointed out by eminent jurist Nani palkiwala:
“Law is not only an ass but also a snail. The courts these days are not cathedrals of justice but cashinos. If you lose at one state, you double the stake and approach the higher stage.[13]
[1] The Concise Oxford Dictionary of Current English, Clarendon Press, Oxford, 1964.
[2] Encyclopedia Britanica, 1929 Edition, London, p.472.
[3] Op. cit., Report of the Committee on Prevention of Corruption, p.5
[4] Chapter IX dealing with offences by or Relating to Public Servants.
[5] Statement of objects and Reasons of Prevention of Corruption Act, 1947, Gazette of India dated November 23, 1946, Part V, p. 384.
[6] Section 4 of the Act.
[7] Deals with Talking illegal gratification by public servant as a motive or reward for showing official favour.
[8] I.P.C Amendment Bill 1972 contained in provisions for making M.P. and M.L.A as public servant but the same was deleted by the Joint Select Committee of the Parliament. Supreme Court in Nayak, R.S. v. Antulay, A.R., AIR 194 SC 684 has held that M..A is not a public servant.
[9] The Supreme Court has now given free hand to C.B.I. in corruption cases.
[10] E.g. Section 20 of the Prevention of Corruption Act, 1988.
[11] Section 17 of the Act.
[12] Sections 26 and 27 of the Act.
[13] Quoted in Judicial and Criminal Justice System Requires Overhauling by T.V. Rajeshwar.
Article by-
Kush Kalra and Rubal Garg
Students, Rajiv Gandhi National University of Law, Patiala
