This Article is written by Manvi Verma of The Law School, University of Jammu, an Intern under Legal Vidhiya
ABSTRACT
This article presents the background, research problem, aim, methodology, results/findings, and implications of a report on the need for a new law to combat public corruption in India. The background highlights the widespread public corruption and its severe impact on the state, country, and general welfare. The research problem is the inadequacy of existing laws to address corruption. The aim is to recommend the implementation of a new bill to combat corruption effectively. The methodology involved the Law Commission preparing a Working Paper based on observations and feedback from various stakeholders. The findings emphasize the negative impact of corruption on governance, welfare programs, and the justice system. The report recommends the implementation of a new bill that allows for the seizure of assets obtained by holders of public office. The implications include the need for strict measures to combat corruption and the importance of government action in implementing the new legislation.
KEYWORDS:
public corruption, law, assets seizure, Law Commission, governance, India, legislation, public trust, accountability, international standards.
INTRODUCTION
The commission took up the topic on its own initiative. Considering the fact that widespread public corruption has ingrained itself deeply into our society, notably its administrative structure, and is severely harming the state, the country, and the general welfare. A law allowing for the seizure of assets obtained by holders of “Public Office” is desperately needed. It is indisputable that the current legislation, the Prevention of Corruption Act, 1988, is insufficient because it allows for the forfeiture of public employees’ assets above their known sources of income only after they have been found guilty of the necessary offences.
In the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1997 (SAFEMA), Parliament acknowledges the suggested strategy. Along with the report comes a bill titled “The Corrupt Public Servants (Forfeiture of Property) Bill” that aims to implement the commission’s recommendations. The commission believes that the suggestions it makes will provide the State with a strong and efficient tool to combat corruption, which is major threat to our economy as well as the security and integrity of our State.[1]
BACKGROUND
The appellant cited the fourth report of the Administrative Reforms Commission (ARC), which included recommendations for the implementation of the Benami Transactions (Prohibition) Act 1988 and a bill titled Corrupt Public Servants (Forfeiture of Property). He requested information on the actions taken by the government to implement the Benami Transactions (Prohibition) Act, the Corrupt Public Servants (Forfeiture of Property) Bill, and the inspection of all related files. The appellant was notified by the Public Information Officer (PIO) that the proposed revision to the Benami Transactions Act does not pertain to the enactment of the Bill and falls outside the purview of this division. Additionally, the PIO refused access to files under RTI Act section 8(1), stating that they were related to a delicate legislative matter that is currently being worked on and would negatively impact the sovereign’s economic and strategic interests.[2]
EMERGENCE OF THE REPORT
The Law Commission had prepared a Working Paper and distributed it to all political parties, the media, the bar, and other organizations and bodies interested in the public good based on the observations made in and the law declared in the aforementioned judgment. Numerous suggestions and comments from a diverse range of society have been received by the Law Commission, and all of these have been considered in the preparation of this report.
166TH LAW COMMISSION REPORT[3]
The 166th Law Commission Report of India, focused on the “Corrupt Public Servant Bill”. This proposed legislation aimed to address the growing concern of corruption within the public service sector in India.
The bill focuses on the comprehensive measures to tackle corruption by public servants, recognizing the detrimental impact that such practices had on governance, public trust, and overall socio-economic development. The proposed legislation sought to redefine and expand the scope of corruption-related offenses, ensuring a more robust framework.
One of the key aspects of the bill was the definition of a “corrupt public servant,” including anyone holding a public office, whether elected or appointed, who misused their position for personal gain. The bill also emphasized the need for preventive measures, such as mandatory disclosure of assets and liabilities by public servants, to promote transparency and accountability
NEGATIVE IMPACT OF CORRUPTION[4]
A crucial prerequisite for effective governance is the nonexistence of corruption. Unfortunately, corruption has permeated every aspect of our society, including the government. There are dishonest people at every level of government, whether in the federal government or in the states, who are seriously harming the state, the country, and the general welfare. The administrative machinery of government-owned businesses, public sector organizations, and local governments has gotten worse. When a public servant receives a bribe of, let’s say, one lakh rupees, it is done so because the payer stands to gain at least tenfold, if not more, in exchange for the loss of the people and the State.
The more important factor is not so much the size of the bribe as it is the extent of the people’s losses and the moral degradation it causes. Many in the administration don’t even think twice about using public funds; they are the money of nobody. The corrupt are willing to inflict any degree of harm on the people and the State in exchange for a tiny personal gain. Many welfare programs, such as those aimed at advancing Scheduled Tribes and other marginalized groups, are unable to produce the desired outcomes due to corruption. Indeed, as one former prime minister noted, only roughly 16% of the money designated for the welfare of the Scheduled Tribes reached them, and that the remaining 84% was taken up by politicians, bureaucrats, and other intermediaries. We now live in a state where corruption is endangering the state’s own security and safety. Corruption occurs during the project’s implementation, contract awarding, purchasing, issuing licenses and permits, making appointments, holding elections, and so on. Corruption permeates almost every aspect of life in our society.[5]
It’s shocking, actually, that the corrupt elements no longer feel any guilt or shame. There is essentially no social penalty. The unscrupulous elements are ostentatiously showing off their illicit gains. Corruption frequently involves enormous sums of money. Many foreign powers are trying to topple our government and destroy our economy, and the dishonest people in charge of our administration are all too eager to follow their lead in order to benefit themselves. Therefore, corruption in our nation today needs to be dealt with harshly because it is not only morally repugnant and shameful but also anti-social and anti-national. The Prevention of Corruption Act has not been able to stop corruption in any way.
The number of prosecutions and, more importantly, convictions under the aforementioned Act are absurdly low, despite the fact that India is among the most corrupt nations in the world. Under the Act, corrupt ministers and high-ranking public servants are rarely prosecuted, and even when they are, the prosecution rarely gets far in its case. These will be writs and revisions at every turn to delay and undermine the prosecution. Prominent attorneys are in engagement.[6]
The true goal of the criminal prosecution is defeated when a point is brought up and the case drags on indefinitely. Regretfully, courts have also begun to value procedure more than the underlying principle Sections 460 to 465 of the 1973 Code of Criminal Procedure state that only violations that cause prejudice may be used as justification for challenging a final order; otherwise, any infraction of procedural provisions does not invalidate the decision made.
It is undeniable that this nation’s criminal justice system has proven to be completely ineffectual, especially when it comes to dealing with the wealthy, powerful, and influential. If it works at all, it works only against the defenseless, impoverished, and destitute. However, since corruption is so pervasive and plays such a harmful role in our political system, we do not believe it is necessary to emphasize this point further. It is an undeniable fact.
INADEQUACY OF THE EXISITING LAWS AND PROPOSED MEASURES TO TACKLE THE EVIL OF CORRUPTION
The current legislation is insufficient to combat corruption, and the proposed measures are not up to par. The Prevention of Corruption Act, 1988 does allow for the forfeiture of a public servant’s assets exceeding their known sources of income. However, this can only occur following the public servant’s conviction for the relevant offence [section 13(1)(e)] under the Act. Another pre-independence law that is currently in effect is the Criminal Law Amendment Ordinance (38 of 1944), which permits the attachment of a public servant’s assets in the event that the employee is charged with corruption.[7]
Only when corruption is proven to have occurred can the confiscation take place. The Prevention of Money Laundering Bill, 1998, which was recently introduced in Parliament, takes a similar stance. According to the Bill, “money-laundering” refers to the ownership, possession, or other dealing in “proceeds of the crime,” and the only way to seize proceeds of crime is if a person has been found guilty of any of the offenses listed in the Bill’s Schedule.[8]
A few of the offenses established or acknowledged by the Prevention of Corruption Act are listed in Part V of the Schedule; however, it is noteworthy that the offense of possession of disproportionate assets, which is covered by clause (e) of sub-section (1) of section 131, is not included in the Schedule. Perhaps the aforementioned offense was outside the purview of the Bill.[9]
But the fact remains that no legislation, comparable to SAFEMA, is in place in this nation permitting the forfeiture or confiscation of the ill-gotten gains or properties of public office holders. Merely locking up those who hold corrupt public office is neither a cure nor a solution. They are not severely harmed. Corruption will not be effectively addressed unless their unlawfully obtained assets are returned to the government. Thus, the suggested action is required.[10]
SALIENT FEATURES OF THE BILL
When drafting the accompanying Bill, the Law Commission of India took into consideration the aforementioned facts and laws. The act criminalizes the mere act of holding or possessing unlawfully acquired properties in order to facilitate the Competent Authority’s acquisition of information regarding the properties and assets of corrupt public servants, including ministers and former members of parliament, whether they are located in India or overseas.[11]
Even in cases where they are stored in numbered accounts or under pseudonyms, declaring their holding or possession to be unlawful and a crime justifies their forfeiture and the taking of action to identify and seize them. The Competent Authority has the authority to demand that any public servant who is suspected of having unlawfully obtained property, either in India or abroad, provide an affidavit detailing the specifics of the assets he, his family members, and associates own. Additionally, the Competent Authority has the authority to summon any authority, officer, bank, or other organization to provide information about an individual to whom this Act applies, and that individual will be required to do so.[12]
It is illegal to withhold information or to provide false information. To facilitate his efficient operation, the Competent Authority is also endowed with certain pertinent Civil Court powers. It also has the authority to order any inquiry, investigation, search, and seizure through whatever authorities he deems appropriate, attach properties while the Act’s proceedings are ongoing, and request assistance from any authority. All of these powers are used for the same purpose. In other words, everything required for the Competent Authority to operate efficiently and without interference has been covered. Additionally, no injunction against the Competent Authority may be granted by the court according to the accompanying Bill.[13]
MEASURES TO REDUCE CORRUPTION[14]
The need for strict measures and the steps the OECD (The Organization for Economic Co-operation and Development) and other countries are taking to combat corruption. It is incorrect to assume that Indians tolerate corruption. People’s inability to turn out in the numbers needed for elections is evidence of their lack of trust in the tools of government. People might not have much patience. A number of governments, including those in Brazil, Indonesia, Italy, Pakistan, and Zaire, have collapsed due in part to political corruption.
Corruption can lead to a number of problems, including increased red tape, lower educational spending, a decline in foreign direct investment, and poor governance. Anti-corruption initiatives have garnered global interest. The Foreign Corrupt Practices Act was passed by the US government a few years ago. International financial organizations, like the World Bank and IMF, have been attaching conditions to aid to developing nations, such as good governance, in recent times.
About 29 OECD members have also ratified or signed an anti-bribery convention, which forbids them from bribing any foreign official in order to obtain or keep business or for any other “improper advantage.” It is anticipated that the convention will soon go into effect. Several global corporations are reportedly closely adhering to their code of ethics, which prohibits them from bribing public officials. It’s critical that Indian businesspeople update their codes of ethics to deter unethical behavior.[15]
An impartial and unafraid judiciary in India can make a significant contribution to guaranteeing that the corrupt are not spared at all costs. However, it cannot take the place of an honest, responsive government that genuinely cares about the welfare of its citizens and is committed to eliminating corruption. Don’t let the phrase “war on corruption” end there. The Law Commission dared to suggest the current legislation with the sincere hope that the current administration means business.
RECOMMENDATION FOR NEW LEGISLATIONS[16]
The Law Commission holds out hope and confidence that the government will move quickly to introduce and pass the accompanying Bill into law. The implementation of such legislation would provide the State with a potent and efficient tool to combat corruption, which is eroding the foundations of our society and threatening our economy, security, and integrity.
CONCLUSION
We can conclude that this report underscores the critical need for stringent measures to curb corruption, safeguard public resources, and enhance public trust in governance. It reflects a commitment to strengthening the legal framework against corruption in India. The report contends that such legislation is imperative for fostering a culture of accountability and deterring potential wrongdoers within the public service.[17]
Further, it highlights the importance on international best practices in combating corruption and suggests aligning the proposed legislation with global standards. This alignment aims to facilitate international cooperation in the fight against corruption and enhance India’s standing in the global community.
At last, it advocates for a balanced strategy that combines punitive measures with preventive actions, aligns with international standards, and ultimately seeks to restore public trust in the integrity of public service institution.[18]
REFERENCES
- https://www.rtifoundationofindia.com/steps-taken-implementation-corrupt-public-servants-2327
- http://www.bareactslive.com/LCR/LC166.HTM
- https://indiankanoon.org/doc/127230429/
- https://lawcommissionofindia.nic.in/
[1] https://www.rtifoundationofindia.com/steps-taken-implementation-corrupt-public-servants-2327
[2] http://www.bareactslive.com/LCR/LC166.HTM
[3] http://www.bareactslive.com/LCR/LC166.HTM
[4] http://www.bareactslive.com/LCR/LC166.HTM
[5] http://www.bareactslive.com/LCR/LC166.HTM
[6] http://www.bareactslive.com/LCR/LC166.HTM
[7] http://www.bareactslive.com/LCR/LC166.HTM
[8] http://www.bareactslive.com/LCR/LC166.HTM
[9] http://www.bareactslive.com/LCR/LC166.HTM
[10] http://www.bareactslive.com/LCR/LC166.HTM
[11] https://www.rtifoundationofindia.com/steps-taken-implementation-corrupt-public-servants-2327
[12] http://www.bareactslive.com/LCR/LC166.HTM
[13] http://www.bareactslive.com/LCR/LC166.HTM
[14] http://www.bareactslive.com/LCR/LC166.HTM
[15] http://www.bareactslive.com/LCR/LC166.HTM
[16] http://www.bareactslive.com/LCR/LC166.HTM
[17] https://lawcommissionofindia.nic.in/
[18] https://lawcommissionofindia.nic.in/
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