Unwarranted changes in Prevention of Corruption Act that may weaken anti-corruption efforts

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This is one thing where I honestly wish I am proven completely wrong in the coming days. Because, to say the least – it is shocking. It is sad that such a crap has been passed by the Parliament in order to drastically amend the Prevention of Corruption Act.

Yes, you are reading it right. I am really shocked that the Prevention of Corruption (Amendment) Bill has finally been passed by the Parliament (on 24 July 2018).

Before I write further, let me state with all humility at my command that I have some basic credentials to write on this topic. It is necessary to clarify it, given the type of opinion I am writing. I am the author of a 2200+ pages book on Prevention of Corruption Act (you can see the image of the book in my profile), published by the best Indian law publishers. Its last edition was in 2009 (next edition taking time). I have worked in CBI and also worked twice in Maharashtra ACB (Anti-Corruption Bureau). In these postings, I have handled thousands of corruption cases. Thereafter, as an advocate, I have handled about 200+ cases on behalf of CBI in the Supreme Court as a Special Counsel of the Government of India – some of them high profile cases too. Of course, as an advocate, I have handled many cases on behalf of accused persons as well. For last few years, I have been regularly delivering lectures at CBI training programmes and CVC-sponsored CVO conferences.

Well, after this background note, let me emphatically state that the amendments being made in the Prevention of Corruption Act will completely change the existing law on corruption. It is not amendment, but a complete rewriting of the law; and, unfortunately, not in the positive direction.

The legal principles and legal terminology relating to corruption that were well-established for last about 158 years (since the IPC inception days in 1860), will be completely unsettled, since these amendments use completely new, vague and untested provisions. Almost all important ingredients are being changed with new and unestablished terms. Some existing important provisions in the law are being dropped. These new terms will take decades for getting their interpretations from the Supreme Court. All this has been done, when it was not needed, being completely unnecessary.

These amendments to PC Act were initially proposed during the Congress rule in 2013, but Congress lost power before they could be passed. The BJP Government proposed some changes in 2015 in these (2013) amendments. There was a Rajya Sabha Select Committee report on these amendments. There is also a Law Commission report on these amendments. Surprisingly and shockingly, all these 4 proposals were defective (even in basic legal language, forget the objective and logic of proposed changes) and yet pursued with vigour.

I see lobbies with vested interests behind such moves. Both BJP and Congress are culprits here. And, so is higher level bureaucracy.

Let me tell you emphatically that all these institutions have completely failed to understand that what is being done in the name of amendments to the Prevention of Corruption Act is a disastrous exercise, completely unsettling the existing laws, blindly borrowing unproved provisions from a foreign land. The name of a UN Convention is being used to camouflage the changes. This amendment will not help eradicate corruption, rather it may perhaps weaken the fight against corruption.

It is not that I am writing all this today, i.e., after the Parliament has passed the amendments. I have been opposing these amendments since they were first proposed way back in 2013 by the Congress-led UPA Government.

Sometime in 2014-15, when these amendments were referred to the Rajya Sabha Select Committee, an NGO had approached me for appearing before this Committee. I was given to understand that the Hon’ble Chairperson of this Rajya Sabha Committee (at that time, Shri Bhupendra Yadav, BJP Rajya Sabha MP) had agreed to give us time. However, later I came to be told that the said Rajya Sabha Committee closed its proceedings and submitted its report without giving time to us. Even Dr. Subramanian Swamy, who also opposed these recommendations, was not taken seriously in this report. It was a faulty report with defective provisions getting recommended.

The Law Commission chaired by Justice A.P. Shah also completely erred in giving defective recommendations about these amendments in its report. Some of their recommendations about the provisions did not meet even the basic legal test of a coherent drafting. It was a rare thing from a professional body such as the Law Commission of India.

Sometime in September 2016, I had been invited to participate in a seminar on these proposed amendments in the National Law School of India University (NLSIU), Bangalore. I had made my detailed submissions in this seminar as to how these amendments were not required. Other experts at the seminar were kind enough to agree with me. It was decided to submit a report to the Government / CBI; however, unfortunately, till date, I have never got any draft report from the NLSIU as had been agreed.

I am a completely apolitical person. Yet, in public interest, I got associated with some persons to persuade the Chief Minister of a BJP ruled state to write a letter to the Prime Minister on this issue. We gave detailed inputs for this letter. That Chief Minister was kind enough to write a detailed D.O. letter to the Prime Minister Narendra Modi as to why these PC Act amendments were not desired.

Last year, in 2017, during my address at a training programme of the Hon’ble Special Judges for CBI in the Delhi Judicial Academy, I had expressed similar concerns about the PC Act amendments.

I was hoping that the Prevention of Corruption (Amendment) Bill will be allowed to lapse and will not be pressed. But, 2-3 days back, I saw a last-line casual mention in a news report that Rajya Sabha had passed these amendments on 19 July, and now this information has come that Lok Sabha has also passed these amendments on 24 July.

What are these negative provisions or what is the negative effect of these amendments? Well, for last two years, I was thinking of writing it in detail, about 100-200 pages’ booklet, but could not get sufficient time for such project. What is the purpose of writing this now?

It is already a fait accompli now. The PC Act will now stand amended in next few days, once the President gives his assent and the Bill is notified in the gazette.

However, let me just give one example. The provision of the PC Act that was used for dealing with corruption in high places (ministers, senior bureaucrats) where direct evidence of bribe would not be forthcoming, now stands deleted!!! Yes, I am talking about Section 13(1)(d) of the PC Act, 1988. It had 3 sub-clauses. The bureaucracy used to oppose the sub-clause (iii) of it. However, now even the non-controversial sub-clauses (i) and (ii) also stand deleted, since Section 13(1)(d) itself stands deleted in full!!! It is no solace that efforts have been made to introduce an alternative in Section 7, but that is vague and untested legal provision, which will take decades for being interpreted by Supreme Court, given the speed at which the wheels of justice move in India. So, CBI’s most used weapon has gone, at least for now. Without any reason.

I feel sorry and helpless. But, what can I do? As an individual? I have no voice. Or, may be, my voice was lost in the huge noise of vested interests. Both Congress and BJP are equally responsible. So is the bureaucracy.

And, the nation does not know that in the name of improvement in the corruption laws, or in the name of implementing a UN convention, undesirable provisions are being introduced and certain useful provisions are being deleted from the existing law on corruption. People and media are feeling as if the corruption laws are being strengthened. Alas!!!

The irony is that during my interactions with officers in CBI and State ACB’s, I generally found that even senior officers are not aware of the extent and consequences of the proposed amendments. They are not prepared, is what I can say.

I have given up my fight. Let the nation learn by experience. Of course, as I said at the outset itself, I’ll be happy if I am proven wrong in my analysis of the amendments being made. If I am proven wrong, the nation wins. But, the nation loses if I am proven right in my analysis of the amendments. So, I am only wishing that I should be proven wrong!!! It may perhaps be possible through purposive interpretation from courts. But, I am not sure.

Till that time, I would call it a black day. I know it is my lone voice in the wilderness at this stage.

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Update (25 July 2018): Since some esteemed readers have asked me to give some details, let me briefly add some of the issues:

(1) The existing Prevention of Corruption Act, 1988, can be seen online here. And, the Amendment Bill that was passed by Rajya Sabha can be seen online here.

(2) Sections 7, 8, 9 and 10 of the existing Act have been deleted and replaced by completely new provisions, with completely new definitions and words. This will completely unsettle the 158-year old well-established legal expressions relating to bribery and corruption. Even though it was not required since there was no confusion. It may now take decades before the new provisions are properly interpreted and settled by judiciary.

(3) The most important provision under Section 13(1)(d) has been deleted. This is the provision which is used for involving senior bureaucrats and ministers in corruption cases, since direct acceptance of bribe by them was generally not possible. A part of this provision (not full) is supposed to be brought back in new Section 7, but through Explanation, which will complicate the things (offences are not supposed to be defined through Explanation but in the main body of the defining section). Further, the maximum punishment for this would now be only 7 years imprisonment as against the existing punishment for 10 years.

(4) Prior permission of the Government or the competent authority will now be required for registering certain corruption offences. Previously, the provision for taking such permission was quashed and set aside by the Supreme Court in 2014 in a writ petition filed by Dr. Subramanian Swamy. This permission will give immunity to corrupt Government officers. Moreover, now the requirement of this prior permission has been extended to all categories of public servants; while previously, it was limited only to Joint Secretary and above level officers. Please note that this is in addition to the existing provision of requiring sanction of prosecution of corrupt public servant.

(5) In addition, even sanction for prosecution of corrupt public servants would now be needed even after their retirement, giving them one more level of immunity or protection. [At present, it was not needed after retirement.]

(6) The offence of disproportionate assets under Section 13(1)(e) has been made much more difficult to prove and has been diluted. The ingredient of mens rea (“intentionally”) has been added to the definition of offence, which did not exist earlier. Moreover, the definition of “known sources of income” has been diluted, giving benefit to corrupt public servants.

(7) It is being spread in the media that the bribe-giver would also be punished now after the amendment (or that bribe-giver would also get equal punishment). But, this provision was already there in the existing law (see, Section 12).

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers.

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