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Here’s why corruption can’t just be legislated away in India

Within the framework of the punitive model which governments generally favour, increase in the likelihood of detection, swiftness and certainty of punishment are perhaps more effective deterrents than draconian punishments

By: | Published: September 19, 2016 6:21 AM
It is true that section 13(1)(d) is draconian and capable of being misused. (Reuters) It is true that section 13(1)(d) is draconian and capable of being misused. (Reuters)

Corruption in developing countries, points out Gunnar Myrdal, reflects an unfinished agenda of modernisation. If that is true, the recent story of Harish Gupta, a retired IAS officer of the Uttar Pradesh cadre, would seem to indicate that by current reckoning, India has a long way to go before it transforms itself into a modern state. At the moment, its public management systems, despite some recent improvements, are typically characterised by complex laws, low trust and lack of accountability and transparency; they are in short, a fertile ground for breeding corruption.

Even in these circumstances, however, to see a personally honest official punished for sins he never committed is painful. That alas, is what happened to Gupta. His tale is reminiscent of the sordid saga of corruption, risk aversion and policy paralysis that afflicted the bureaucracy a few years ago.

Gupta’s only sin was that he was secretary, department of coal at the wrong time, between 2006 and 2009, when the coal scam took place. He was ex-officio Chairman of the Screening Committee that recommended allocation of coal blocks to various applicants. Neither he nor indeed his immediate boss, prime minister Manmohan Singh, could resist the machinations of party bosses who had already decided how the coal blocks would be shared amongst their cronies. It required the intervention of the Supreme Court and a major auction before the mess could finally be sorted out. Now, Gupta and other officers who dealt with these files in the coal ministry find themselves charged for criminal breach of trust and conspiracy (sections 409  and 120-B IPC) and of having wrongfully conferred benefits on private parties without serving any public interest (sections 13(1)(c) and(d), Prevention of Corruption Act).

When Gupta pointed out that he may have to fight his case from jail because he could not afford legal fees to extend his bail, a shocked community of civil servants, petitioned the government to introduce two safeguards in the Prevention of Corruption Act. They have desired that, as in the case of serving officers, the CBI must seek approval from a competent authority before it files a chargesheet in the case of a retired officer. Secondly, they also want section 13(1)(d) to be removed from the statute book. This provision extends the definition of criminal misconduct to include any act of a civil servant that helps any person to obtain “any valuable thing or pecuniary advantage without any public interest.”

Much can be said both for and against both these proposals: it is true that investigation authorities cannot fully understand the subtle nuances of executive decision making; and they do at times make out a criminal case where none really exists. Some impartial umpire, therefore, needs to be appointed to ascertain whether a prima facie case exists or not. The earlier experience of setting up an advisory board under the aegis of the CVC for such purposes in respect of bank frauds was, in fact, quite encouraging.

It is true that section 13(1)(d) is draconian and capable of being misused. This is because many actions of public servants do result in grant of some benefit or the other—be it a refund, tax deduction, license, loan, purchase order, quota, allotment, etc. The very existence of this provision renders officials highly vulnerable, when a private party obtains benefits through misrepresentation but without their connivance. This is especially so in the aftermath of a scam, when outraged public opinion demands immediate action and vigilance authorities are under pressure to deliver results.

An equally good case, for maintaining the status quo with respect to both provisions, however, has also been made out by an erstwhile cabinet secretary. He has argued that even with all its draconian provisions the Prevention of Corruption Act has hardly had any impact on controlling corruption in our country. Why then do we seek to dilute it? India is a signatory to the UN Convention on this subject and has a legal obligation to bring its anti-corruption legislation in accordance with the standards contained in it.

Regardless of whether or not the government chooses to amend the aforesaid Act, it is clear that corruption cannot be legislated away and there are no quick fix solutions. Within the framework of the punitive model which governments generally favour, increase in the likelihood of detection and swiftness and certainty of punishment are perhaps more effective deterrents than draconian punishments.

We also tend to forget that the menace of corruption is inextricably intertwined with values and has very deep social and cultural roots. A number of anthropological studies have confirmed that the legal definition of corruption is often at sharp variance with the beliefs of common people. Writing in 1998, Arild Engelsen Ruud, an internationally renowned anthropologist, noticed that people in a village in Bengal were hardly agitated about a certain patwari charging a commission for official services that he provided to them. That officials should charge for services was considered legitimate. Their grouse was that his rates were exorbitant; and that he did not perform, even after charging; they considered this serious enough to address a petition to the prime minister.

Other studies confirm these conclusions. Thus in China giving gifts (guanxi) to officials in expectation of return favours, and in Russia, exchanging favours with them is considered fair game, provided the official concerned and the citizen are part of the same social circle. The discourse on corruption in a country, according to Akhil Gupta, Professor at UCLA, depends upon its current stage of historical development and the grammar of public culture that that produces.

This is not to say that nothing can be done to rid ourselves of this menace. Corruption often stems from systems and procedures—and greater transparency does help. Robert Klitgaard, an international authority on the subject, further points out that it decreases both with increase in accountability, as well as reduction in discretion and monopoly power. This equation indicates the reform path we need to follow.

Otherwise, we shall continue to see many more painful sagas of Harish Guptas.

The author was additional secretary, CVC and ombudsman to the Income-Tax department, Mumbai. Views are personal

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