A statutorily formalised mechanism for dealing with and putting down corruption in our governance has been in operation for over six decades. The exclusive law to penalise corruption, namely the Prevention of Corruption Act, has been amended from time to time to tackle new forms of corrupt practices. Investigating agencies have also been progressively strengthened to be more effective. Yet, in the general perception of people, corruption has increased all round and the problem is seen to be intractable. This is largely because many functionaries in administration and public life who are generally known to be abjectly corrupt do not get caught, and even if caught by the investigating agencies they ultimately get acquitted in Courts which are beset by outmoded procedures and archaic rules of evidence.
2. In practice, it is difficult to get evidence about collusive corruption which involves large money and takes place at high levels, because all the parties concerned stand mutually benefitted and do not at all like to expose each other. At the other end of the spectrum, we have the victims of extortionate type of corruption involving relatively small money but prevalent among the large mass of government servants at the ground level in administration. The harassed victims do not come forward to expose this corruption because of fear of severe reprisal by the minions in government.
3. Deficiencies and failures in the anti-corruption mechanism have, over the years, made the general public become cynical and take a defeatist view of this malady in public life and administration. The criminal justice system has practically ceased to have any deterrent effect to put down this fast growing evil. Agitational politics of the day which invariably involves arrests of mini VIPs followed by their production in court with due publicity of their smiling and triumphant faces in the press, have taken away the stigma that was attached to involvement in criminal proceedings in the former years. The situation is further compounded by the increasing entry and aggressive presence of ‘charge-sheeted’ persons in the State Assemblies and Parliament.
4. It is time we forged a new approach and policy in regard to anti-corruption measures to pull the common people out of their growing cynicism and infuse some measure of confidence in them to look for relatively clean governance. We may start with the problem of high level corruption which, on many occasions, is also linked with political corruption. Our efforts should be to keep this type of corruption under effective check and control in a manner that will be known and appreciated by the general people.
5. All acts of corruption, specially at high levels, invariably result in illegal accumulation of considerable wealth by the government functionary or the concerned politician, which he will not be able to account for by any legal or other legitimate means. The wealth will mostly be in the form of immovable property or proprietory hold over business enterprises either in his own name or in the names of family members or others under his complete control. Such benami holdings have now become common in the commercial world. It is this quick acquirement of financial resources by the corrupt politician or government official that attracts public attention. Unfettered enjoyment of this ill-gotten wealth by the corrupt in government and politics makes the common people despondent and lose confidence in the government of the day. Continuance of this situation will seriously undermine the fabric of our much-valued democracy. Something has to be done quickly and demonstrably to retrieve the situation.
(a) It should be applicable to all public servants as specially defined in that law itself.
The definition should include –
(i) all persons as defined under Section 2 (c) of the Prevention of Corruption Act,
1988
(ii) all Members of Parliament and Members of the State Legislatures
(iii) all Members of Panchayats established under the Constitution, and
(iv) office-bearers of all political parties duly registered with the Election
Commission.
(b) Section 13(1) (e) of the Prevention of Corruption Act, 1988 may be deleted, and its
provisions may be suitably amplified and incorporated in the new Act to penalise
possession of unaccountable assets by a public servant as newly defined.
(c) The provisions of Criminal Law Amendment Ordinance of 1944 are presently used
for attaching the properties acquired by a person by an act of corruption, when that
act is under investigation. The provisions also provide for forfeiture of that
property if the person gets convicted in court. All these provisions should be
incorporated in the new Act in an
amplified form to provide for the attachment and
forfeiture
of all the unaccounted assets of the person prosecuted/ convicted under
the new Act; and not limited to
the properties directly connected with the specific
act of corruption covered by the trial.
(d) The procedural provisions in the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act of 1976 could be suitably amplified and adopted in the
new Act to ensure that the properties held benami are also covered.
(e) The new Act should provide for Special Courts to function as fast-track courts to
try offences under the Act.
(f) Special rules of evidence should be formulated in the new Act, to be applicable to
trials under the Act. We should give up archaic principles like ‘Hundred guilty
men may escape but not one innocent man shall ever get punished ’. While the
second half of the principle is unexceptionable, the first half works to the
advantage of the corrupt. Likewise, the ‘benefit of doubt’ principle should not be
carried too far in attachment or forfeiture proceedings. In fact, any element of
doubt in the legitimacy of possession of any property by an accused person should
go to the benefit of the society and the property should be confiscated accordingly.
(g) There should be provision for the mandatory award of minimum of one year
imprisonment to a person convicted in court for an offence under the new Act.
9. High level
corruption may also sometimes involve transactions abroad in foreign exchange.
In a well researched book published in 1997 Prof.
Jean Ziegler, an eminent academician of Switzerland, has exposed the deep
involvement of the Swiss banking system in providing safe vaults for holding the
monies of authoritarian rulers, power brokers and high level influence peddlers
across the world. The expertise to
be acquired by the special wings will include the legal procedure, working
technique and methodology to probe into bank transactions within