Key changes to the Prevention of Corruption (Amendment) Act, 2018, passed by both the houses of the Parliament seeks to enhance transparency and accountability of the Government and made anti-graft provisions under the law stringent, as claimed by the Government, but antithetical to its averments, its passage would administer a big blow to our already weak anti-corruption mechanism.

The Bill to amend the Anti-Corruption Act of 1988 was first introduced in the Rajya Sabha in 2013, during UPA regime, the purpose, ostensibly, was to consolidate the existing anti-corruption legislation. The NDA government lucrative changes to the Bill in support of corrupt officers acts as a death knell for the Bill.

Amendments in the Bill will enervate the purpose of the Anti-Corruption Act

The amendments make a number of crucial changes in the law, which would serve to dilute and defeat the whole point of anti-corruption legislation in many ways. Firstly, it narrows the existing definition of the corruption; secondly, it increases the burden of proof necessary for punishing the corrupt, thirdly makes things more difficult for the whistleblowers and lastly increases the protective shields to the officials accused of the corruption.

Let’s critically discussed the Amendments made through the Bill

1. Change to the existing definition of the corrupt public official: The amendments narrow the definition of the corrupt public official. The updated Section 7 defines 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 dishonesty.” Subsequently, it also includes receiving an undue advantage as a “reward” for improper or dishonest work.

The amendments narrowed the earlier definition which had a broad interpretation of a corrupt public official, which says that who, “while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.” Subject to the amendments made, the prosecuting agencies will have to prove a conspiracy to carry out corrupt acts, rather than simply pointing to disproportionate assets or questionable actions.

2. Change in the definition of the Corruption: The amendment too narrowed down the definition of the corruption, as under Section 13(1)(d) of the previous act covers various indirect forms of corruption including the obtaining of “any valuable thing or pecuniary advantage” by illegal gratification or by “abusing his position as a public servant”. This is through this constructive Section all major scams such as 2G scam, the Commonwealth Scam, the coal scam, etc. became criminal offenses.

But in contrary to the previous definition of the corruption it replaces it with a truncated definition of criminal misconduct by a public servant i.e., the under one’s control, and intentional, illicit enrichment and possession of disproportionate assets. Under the new definition, any benefit accrued that is not economic, that is indirect or that cannot be proven to be intentional fraud will not be punished as corruption. Certainly, this new definition provides a lucrative opportunity for the corrupt public servants to indulge in corrupt practices which in turn would be a detriment to the purpose of the Act.

3. Amendment brought Bribe-giver under the scanner of the Bill: Bribe giving is not punishable in the older law but could be prosecuted for abetting the corruption, but in the said amendments expressly criminalizes bribe-giving as well as bribe-taking. The new provisions will ultimately deter the bribe giver to lodge a complaint against the bribe taker, as usually there lacks a proof of bribery.

4. Amendment requires prior sanction of Government to investigate its official: According to the amendment, the new Section 17A of the PCA requires the Government’s or higher official’s sanction before any serving public servants can be prosecuted under the Act. This is something bizarre upon the part of the Government, where the seriousness of the government in ordering investigating against its officials must be contemplated, as the government isn’t foolish that it will register a case against itself. Additionally, it also includes another pointless and unnecessary condition, which says, if a private person approaches the government for sanction to prosecute a public servant for corruption, he would now need a court order to this effect. This baroque layer of protection for the accused would certainly discourage the victim from prosecuting the accused public servant. Hence, it is obvious from the attitude of this government that it wants to create a protective shield for its officials in order to occlude the victims to prosecute against itself.

Government’s failure to appoint Lokpal and Lokayukta is an indication of usurping power with itself

It is pertinent to mention that the Amendment Bill has no mention of who will the concerned authority to provide 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 officials, whereby they are considered as a concerned authority. But, contrary to the earlier provisions the government is trying to usurp the power to give prior sanctions to investigate corrupt officials. This may result in redundant complaints in the absence of an investigation material to serve as the basis of a decision of the appropriate authority.  

The amendments aimed at enlarging the scope of ‘corruption’

The amendments standardize and rationalize two important penal provisions of Section 7 and Section 13 providing a great deal of cohesion and cogent compartmentalization. According to Kanu Agarwal, Advocate at Supreme Court of India, the amendments meant to protect retired officers and raised the controversy regarding the permission seeking before investigation under the proposed Section 17A, which could have been avoided, additionally the alleged omission of Section 13(1) (d) is ludicrous if one studies the impact of the changes brought about in Section 7 of the Act through the amendment.

Author: 
Yash Mittal is the third year law student at Institute of Law, Nirma University, Ahmedabad

Note: Views expressed in above article is solely of author.