Anti-graft law, now, won’t penalise officials for genuine mistakes

By: | Published: July 26, 2018 3:26 AM

With both houses of Parliament finally passing the Prevention of Corruption (Amendment) Bill, public servants can now heave a sigh of relief as they will now be able to take decisions without the fear of being prosecuted, even if it turns out later that the decision was a poor one

parliament, corruptionBoth houses of Parliament finally passed the Prevention of Corruption (Amendment) Bill.

With both houses of Parliament finally passing the Prevention of Corruption (Amendment) Bill, public servants can now heave a sigh of relief as they will now be able to take decisions without the fear of being prosecuted, even if it turns out later that the decision was a poor one. Indeed, it was the possibility that bureaucrats and others could be hauled up by the police even after they had retired that made them even more reluctant to take decisions. As former education secretary, Anil Swarup, has pointed out to this newspaper, the original Prevention of Corruption Act (PCA) was drafted in such a manner that, often enough, the courts had no option but to hold officials guilty—as in the case of former coal secretary, HC Gupta, in the coal scam case—if it was found that the decision taken benefitted someone. Given the spate of arrests of bank officials in the recent past, fixing the PCA was critical if the policy paralysis in the sector had to be fixed.

Prior to Tuesday’s amendments, Section 13 (1) (d) (iii) of PCA 1988 held that if a person “while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest”, then such an act amounts to criminal misconduct. So, when it was argued that the decisions taken by a committee headed by Gupta were “without any public interest”—by then, the view was that coal blocks should have been auctioned, not allocated—it was natural to sentence Gupta, even though there was no evidence that he had personally benefitted from the decision. This section of the PCA has been amended by saying that the public servant will be guilty of criminal misconduct if “he intentionally enriches himself illicitly during the period of his office”—apart from proof of a direct bribe related to a clearance/permission, the fact that the official has assets disproportionate to his/her sources of income can be used to prove culpability.

And, while several have criticised this, Section 17A has been inserted to say that even an inquiry/investigation cannot be carried out without the approval of the government—state or Centre, depending on where the official worked. This is another safety clause put in to protect bureaucrats; earlier, the investigation could be carried out, but prosecution required the government’s permission. It is true this provision was abused on a few occasions—the central government refused to give CBI permission to prosecute corrupt officials—but the provision will provide relief to innocent officers whose reputation was tarnished by the police landing up at their doorstep or summoning them to headquarters for questioning even if, after decades, the charges against them were dismissed. And, contrary to what critics believe, the amendments have broadened the ambit of what is to be considered corruption by criminalising bribe-giving and also providing for companies to be made parties to graft cases. The definition of bribes , as in the past, includes the official trying to obtain benefits for “any other person” like, say, a family member.

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