Rajya Sabha select committee dilutes anti-graft law

The winter session of Parliament that ended this Friday, hit as it was by constant disruptions because of the Narendra Modi government’s “note ban” decision, transacted a little business. 

Among the Bills that it didn’t take up for discussion and passing, but was slated to, was a much watered-down Prevention of Corruption (Amendment) Bill, 2013, after a Rajya Sabha select committee had recommended changes to the existing law.

Cutting across party lines, the Rajya Sabha select committee members agreed to a report that substantially weakens even the existing anti-corruption sections of the law. The committee interviewed 85 witnesses and spoke to stakeholders from across the country.

One of the witnesses was Bharatiya Janata Party (BJP) Rajya Sabha member Subramanian Swamy, who suggested to committee members to retain a crucial section of the old law, but this was ignored. Swamy argued that deletion of section 13 (1) (d) would make it nearly impossible to prosecute public servants who have misused their official position.

It is the only provision that makes senior public officials liable for criminal action, as Swamy also pointed out, in several big scams, including Bofors, 2G spectrum and coal block allocations. “I want this (section 13 (1) (d)) to be retained as it is. By deleting this, you have, actually empowered corrupt politicians to again engage in the same things that we saw…”

The section defines “Abuse of Official Position” under the overall category of “criminal misconduct by a public servant”. Currently, an investigating officer can prove corruption by establishing that legal provisions, guidelines and rules were violated which led to pecuniary advantage to somebody, including a third party. The investigating officer does not need to prove a direct trail of money, or any other quid pro quo, to have reached the public servant in the transaction. This provision was put in with the knowledge that pecuniary benefits accrue to an official in post-retirement benefits, benami property, etc.

Swamy, among other stakeholders, told the committee that section 13 (1) (d) has been the most successful in ongoing litigations in the Supreme Court in the 2G spectrum and coal block allocation scams. 

The section states: “While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.” Swamy even argued with the committee that while the Congress-led UPA had reasons to weaken the existing law, but there was no reason for the existing government to do so and advocated retaining of the section.

However, the final report has deleted the crucial section. It has also watered down existing sections that will make it difficult for corrupt public servants being caught red-handed taking bribes, limit the powers of investigating agencies to act against corrupt officials accused of owning assets beyond the known sources of their income and dilute the offence of abuse of official position. It also weakens the Lokpal Act, a body constituted to fight high-level corruption.

The select committee, constituted on December 11, 2015, held 15 sittings and tabled its report at the end of the monsoon session of Parliament, on August 12, 2016. 

The committee report, now available on the Rajya Sabha website, claims that the committee’s task was to bring domestic anti-corruption legal framework in conformity with current international practices under the United Nations Convention Against Corruption (UNCAC). 

It also claimed to have suggested amendments “in view of several judicial pronouncements on the Prevention of Corruption Act, 1988”.

But even with deletion of section 13 (1) (d), the committee has ignored UNCAC’s Article 19 that relates to “Abuse of Functions” and is similar to “criminal misconduct” as defined under section 13 (1) (d). 

Even where the committee has sought to make the law more consistent with international laws, it has suggested caution. For example, the committee has proposed insertion of the expression “undue advantage” accruing to a public servant. 

It is borrowed from the UNCAC, but the committee has expressed apprehension “that the enforcement/probe agencies may misuse” it to “harass public servants”. It “advises that adequate precautions be taken this in this”.

The amendments have also sought to rephrase section 7, which relates to public servant taking gratification other than legal remuneration in respect of an official act. 

Other amendments are including deletion of sections 8, 9 and 10 (these relate to public servants being bribed, to bribing a public servant and bribing a public servant by a commercial organisation). As stakeholders pointed out, the deletion of these sections will make it difficult to prosecute middlemen and significantly weakens, let alone strengthening, even the existing anti-corruption provisions.

In some effort at improving the existing law, the committee has recommended that the litigation in a case under this Act be completed within two years, and the judicial officers should note down the reasons if it isn’t completed within the duration.