This article is written by Shruti Sharma of 5th semester of The Law School, University Of Jammu, an intern under Legal Vidhya.
ABSTRACT
Corruption is a cancer that causes huge loss to the society’s ability to grow. Every nation has been facing the problem of corruption since time immemorial. India has been no exception to this. In India, one major law that deals with the corruption is the ‘Prevention of Corruption Act, 1988’. The 15th Law Commission of India detected some shortcomings in the existing law and then submitted a report on this matter. Through this article, I’ve tried to do a thorough study of the report and the bill and have tried to analyze the report in its entirety. This article mainly dwells into the discussion of the 166th Law Commission report and makes a submission for the legislation of a law against corruption.
KEYWORDS
Corruption, property, forfeiture, laws, report, authority.
INTRODUCTION
Good governance is every government’s important characteristic and this kind of governance must be free from any kind of corruption or like ill practices. However, it is a known fact that corruption has become a usual practice in the public as well as the private domains of any government or similar functional authorities. Corruption has been able to enter into the grass root levels of our society, be it at the central level or at the state level, there are various corrupt elements causing immense loss to the nation and its interests. In India, there are various laws to fight this evil in the society. One such law is ‘The Prevention of Corruption Act, 1988[1]’. This law was enacted to curb and control corruption. However, there are various lacunas in this act, due to which the act has not been able to deliver the results that were expected by the lawmakers. Thus, in order to overcome the drawbacks of the act of 1988, The 15th Law Commission in the year 1999 presented a report on the concerned matter and also presented a bill in the corruption domain having the title ‘The Corrupt Public Servants (Forfeiture of Property) Bill’. This report was presented to provide the lawmakers with an additional push towards enacting a law to tackle the problem of growing corruption in an efficient manner. The report explained that how corruption has become a problem for the society and what all effects it has on the administration and functioning of a state. It further explains about the inadequacy of the existing laws and then makes its own recommendations by keeping all the essential matters in mind.
THE 15TH LAW COMMISSION
The 15th Law Commission was established in the year 1997 and it remained in the office till the year 2000. In these years, it presented 18 reports on various subject matters. The 166th report was also presented by the same law commission in the year 1999. This report was presented by the law commission with the aim of enabling the law makers to formulate some serious provisions against Corrupt Individuals. The report was presented by the chairman of the 15th law commission, Justice BP Jeevan Reddy.
THE REPORT: THE CORRUPT PUBLIC SERVANTS (FORFEITURE OF PROPERTY) BILL
As already discussed, this report dealt with the matter of corruption and related legislation. In order to have an in-depth understanding about the content of the report it is imperative that we have knowledge about the background of the report and the reasoning for its presentation. So, before we get into the main content of the report, let us take a look into the background of the report.`
Background of the Report
The report formed its basis on the decision of the Supreme Court in the landmark case of Delhi Development Authority V. Skipper Construction Company (P) ltd.[2] .In this case, the apex court gave some major remarks on the need of a law that would actuallybe detrimental to the corrupt people. The court said that it was really the time to have a law that would cause fear in the mind of the corrupt people and would lead them to part ways with corruption. It was also mentioned by the court that such a law must be enacted which would allow the confiscation of the properties of the spouse, Children and other relatives of the corrupt person as well and not just the properties of the corrupt person alone. In short, the court appealed to the Parliament to enact much stricter law just like the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976[3] (SAFEMA).
On the basis of this judgment, the law commission prepared a working paper which was then circulated among various organizations and public bodies including the political parties, media etc. All these bodies gave different opinions which were kept in mind while presenting the report. Thus, the given judgment and the opinions of the aforementioned bodies formed the background of this report.
Drawbacks in the existing Laws
In this report, the inadequacies of the existing laws was also explained and it was also mentioned that how the new law can bring in reformative changes in this field. The report elaborated as to how the Prevention of Corruption Act of 1988 wasn’t efficient enough as it allowed the confiscation of the property only after the person was finally convicted under this act and not before that. There are several other laws also that have failed to be productive.
Simply said, there is no strict law in India that allows the forfeiture of the ill-gotten property of the holders of the public offices that could make them feel hesitant to continue with this ill practice. For such people, a trip to the jail won’t be as hurtful as the confiscation of their ill-gotten assets would be.
This demand for a new law was further supported by the similar approach as in the SAFEMA which allowed the confiscation of such properties. The report also mentioned as to how the Supreme Court had approved the SAFEMA in one of its decisions. Thus, the stand and the demand of the commission were crystal clear and the demand was for a stringent law to eradicate the problem of corruption from the grass root level of our society.
Salient Features of the Proposed Bill
While drafting the bill and formulating the provisions, the law commission considered the aforementioned facts. The bill was mainly drafted to provide a weapon in the hands of the authorities to attack against the practice of corruption. The bill contained in it various sections and provisions. Some of the major features of the proposed bill are:
- In order to make it easier for the competent authority to gain any information regarding the illegally obtained properties of the corrupt persons, in India or elsewhere, this bill proposed to make the very holding of such property an offence. This provision would allow the competent authority to forfeit and also seize such properties even when they are kept under the title of some other person.
- Through the proposed bill, the competent authority would be empowered to call upon a public servant who is believed to have acquired any such property by means of corruption or like practices. And such a public officer could also be called upon to provide the information regarding the particulars and the whereabouts of such property situated in India or in foreign.
- The proposed bill also allowed the competent authority to ask any person including the officer, bank, authority or any other organization to provide information about a person upon whom this act applied and in case of failure, any refusal or false information was made punishable under the act.
- The proposed bill also vested the competent authority with the powers of a civil court. This was intended to enable the authority to function efficiently.
- The competent authority was also to be allowed to attach the properties pending the proceedings, to order any inquiry or investigation and may also be allowed to get any help it requires.
- Another salient feature of the bill was that it was majorly based upon the provisions mentioned in the SAFEMA, 1976. This decision was taken as the constitutional validity of the SAFEMA had already been established in the Supreme Court of India.
- Another feature of the bill was that it also barred any kind of injunction on the competent authority by the courts. Although this was a matter of debate, the Law Commission gave its own arguments to support this fact.
In short, we can say that the proposed bill tried to provide all those provisions which seem necessary for the effective as well an unhindered functioning of the competent authority. The law commission had in mind the aim to eradicate the evil practice of corruption from the grass root levels of Indian society and that was the reason that this bill and the report were submitted by it. From the above-mentioned features of the bill, we can get an idea about the bill and the intention behind it. However, a closer look into the other provisions of the bill would enable us to have a thorough understanding of the bill and the report.
THE BILL AND THE PROVISIONS
This bill annexed to the 166th report of the Law Commission focused on providing the provisions for the confiscation and seizure of such properties that were acquired by the holders of public offices through ill practices. Even the opening of the bill annexed to the report meant the same and stated that the proposed bill would provide for the forfeiture of the illegally acquired properties and assets of the corrupt public servants. The bill explained as to how corruption has a deadening effect on the administration and the development of the society. It also went to explain that how the procedure under other was becoming either difficult or inadequate.
The bill further contained various sections including the title, application and the definition section. The bill explained about the acquisition of property by ill means and also explained about the competent authority, its powers, its role etc.
As per the bill, notice must be served for the forfeiture. Not only this, the bill contained several provisions regarding the effective forfeiture of the property. The bill also mentioned that the Central Government could make rules to carry out the provisions of this act.
ANALYSIS OF THE REPORT
An in-depth study of the report has made me to say that it was indeed a really important report made for the welfare of the society at that point of time. Corruption has been a problem for all kinds of societies and it has touched the root levels of our administration and the government. Corruption is practiced at various levels and the public servants are often caught taking bribes. The Law Commission understood the problem and in order to tackle the ever-growing problem of corruption, it presented the 166th Report on the bill dealing with this issue. Even the ending note of the main report stated that the Law Commission trusts the Government to take sufficient action upon this report and introduce a legislation based upon the proposed bill to fight the corruption which poses a very serious threat to the economy of the nation.
However, it is a matter of grave concern that this bill has been kept in cold storage for the past 24 Years. Recently, in a case in Supreme Court this issue was raised. In this case, government officials or the police officials had made certain allegations of huge corruption upon each other. While the pronouncement of the judgment, the court explained how corruption has become even more deep-rooted and is growing even more recently. The esteemed offices of IAS, IPS and Judges are also not spared from corruption.
In the judgment, Justice Subramaniam underlined various salient features of the bill and stated how imminent it has become for the Parliament to look into the ill-effects of the corruption and consider the bill that was submitted in the year 1999.
Overall, the report and the bill were presented to curb the corruption in society. But the lack of action by the government in this aspect has been something that doesn’t deserve to be appreciated.
CONCLUSION
To sum it up, we can say that the report in itself was progressive and the bill also tried to take the nation towards to state with least corruption. As we all know that corruption has always been a problem and it has caused great loss to the society as a whole. In the present-day scenario as well, it has become very important to have stringent laws to curb the evil practice of corruption. The government and the legislators must play an active role in this matter and consider the proposed bill of 1999 and also enact a law to fight against corruption.
REFERENCES
- Wikipedia: https://en.wikipedia.org/wiki/Law_Commission_of_India
- AdvocateKhoj: https://www.advocatekhoj.com/library/lawreports/index.php
- 15th Law Commission: https://lawcommissionofindia.nic.in/report_fifteenth/
[1] Prevention of corruption act, 1988, Act no. 49, 1988 (India)
[2] Delhi Development Authority V. Skipper Construction Company (P) ltd., 1996 SCC (4) 622
[3] Smugglers and Foreign Exchange Manipulators (forfeiture of property) Act,1976, Act no. 13, 1976(India)
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