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CHAPTER – V

LIMITATIONS OF THE PREVENTION

OF CORRUPTION ACT

5.1. INTRODUCTION

Law is an essential instrument to ensure the smooth working of society. It is the

purpose of law to provide crimeless society. Though, it is difficult to achieve this

object in real sense, yet law may prove to be useful in controlling crimes significantly.

The Prevention of Corruption Act, 1988 is the prime legislation dealing with the

instances of corruption done by the public servants. The success of anti-corruption

drive rests upon the efficacy of the Prevention of Corruption Act. An effective

legislation may reduce the instances of corruption considerably. Though the

Prevention of Corruption Act, 1988 is a well drafted legislation, yet there is not a

single legislation in the world which we can term as perfect to eliminate the instances

of corruption perfectly. Hence, there might be some shortcomings within the

legislation prompting the wrongdoers to go ahead with their evil motive and to

commit acts of bribery and corruption. In present Chapter, we are going to discuss

about the shortcomings and limitations of the Prevention of Corruption Act, 1988. An

analysis of these shortcomings or limitations may guide us to suggest necessary

amendments into the Act.

5.2. PURPOSE OF THE ANALYSIS

The purpose of the analysis of the shortcomings or limitations of the Prevention

of Corruption Act is useful and vast. Through this analysis we may be able to find

loopholes into the legislation leading to lack of implementation of anti-corruption

laws. The presence of loopholes or shortcomings into the legislation encourages the

wrongdoers to commit such crimes without any fear of punishment or law. The

punishment may not be equivalent to the proceeds of crime prompting them to commit

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the crimes fearlessly. Similarly, the lethargic attitude of the police and other

investigation agencies also adds to the grim situation. It is the purpose of the law to

activate the anti-corruption machinery for the betterment and development of the

society. Society should not suffer at the cost of laziness of the investigation agencies

and ineffectiveness of the legislation. The law shall force the investigation agency to

work in an efficient way to control the ever-growing evil of corruption. The purpose

of analysis of shortcomings of the anti-corruption legislation is to suggest necessary

changes or amendment into the law so as to provide sound teeth to the legislation

enough to catch hold of all cunning criminals forcing the poor people to remain poor

by snatching opportunities from them. The purpose of this chapter is to establish

accountability and responsibility of the investigation agencies to book all the criminals

and to conduct transparent investigation into the offences to attain higher conviction

rate establishing the Rule of Law and Social Justice – the noble aims sought by the

framers of the Constitution.

5.3. CONSTITUTIONAL PERSPECTIVE

In this part, we are going to discuss the limitations and shortcomings of the

Prevention of Corruption Act of 1988 through constitutional perspective. Till now; we

have discussed the causes, effect and consequences of the evil of corruption through

penal laws i.e. Indian Penal Code, Indian Evidence Act, the Code of criminal

Procedure, the Prevention of Corruption Act etc. But now we are going to discuss it

under the shadow of the Constitution of India. Constitution is the supreme law of the

land and all other law find their strength from the Constitution. They have attained

their recognition and force from the provisions of the Constitution. Various provisions

like liberty, equality, fraternity and social justice etc. are the guiding lamp for other

legislations to attain these noble objectives of a modern democracy. Corruption, being

a crime is dealt with criminal law which we have mentioned above. The study of

corruption through constitutional perspective can be very important and useful to deal

with this evil in a better way. The politico-legal mechanism in India is based upon the

Constitution and hence it may prove to be quite useful to examine various provisions

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of the Constitution which act against the evil of corruption and provide necessary help

in dealing with this problem.

One of the reasons having a written constitution is to subject administrative

power to the Rule of Law. There are written directions or guidelines for the

administration and a departure from these guidelines shall be treated as ultra vires to

the Constitution. Along these lines executive is educated by established principles of

democracy like equality, reasonableness, arbitrariness and fairness of administrative

actions judicial review of administrative actions. These qualities can be implemented

expediently through fair administration and judicial review of administrative actions.

Part III of the Constitution can be very useful in attaining a system equipped with

effective administrative values necessary to attain good governance. Such a quality

administration will have no choice however to be free from corruption.

5.3.1. PROVISIONS OF CONSTITUTION CAN CURB CORRUPTION

INDIRECTLY

The direct method of curbing corruption is by invoking provisions of ant-

corruption legislation by giving punishment to the wrongdoers. But, even the

Constitution can prove to be an effective tool to control this evil; though indirectly.

Policy matters or administrative decisions which are tilted in favour of corrupt persons

may be challenge in the Court of law by taking help of measures provided within the

Constitution. These corrupt administrative decisions or actions ate characterized with

misuse or abuse of discretionary powers by the executive. Such corrupt actions or

decisions may be challenged on the ground of equality or equal treatment of law under

Article 14 of the Constitution and are subject to judicial review. The government has

to act non-arbitrarily while dealing with public welfare schemes. It was held in

Ramana Dayaram Shetty v. The International Airport Authority of India and Others419

that the discretion of the Government has been held to be not unlimited in that the

Government cannot give or withhold largess in its arbitrary discretion or at its sweet

will. Thus the government actions or decisions regarding largess are not immune from

the consideration of the courts. Prof. Reich has explained various aspects of the 419 AIR 1979 SC 1628.

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government largess with great elaboration which Court also took notice of420

in the

present case. Article 14 in addition with public interest litigation has reformed this

area and has put brakes upon the sweet will of the executive in giving government

largess to the persons related with the persons holding key positions in government.

Another perfect example of constitutional help in cases of corruption is Vineet

Narain v. Union of India421

popularly known as Jain Hawala case where directions

were issued by the Hon‘ble Court under paragraph 58 (I). The Hon‘ble Supreme court

of India has given strict directions to the central Bureau of Investigation and the

investigation of the case involving high rank politicians was guided by the Court. The

Court criticized the role of Central Bureau of Investigation and directed that the

Central Vigilance Commission should be given supervisory over it. The Court went

on to monitor the complete investigation process and the investigation officers were

ordered to submit periodical development into the investigation made by them. The

Court also went on to prescribe functional and structural changes into the investigation

agencies. But, the inaction and non-compliance of law by the Central Bureau of

Investigation were the main flaws in this case as established by the Court. As a result,

a number of accused were acquitted on the ground of lack of evidences422

. Hence it is

the need of the hour to bring Central Bureau of investigation and other Central and

State investigation agencies out of control of the government so that a fair

investigation may be brought out and the culprits may be punished as per the

provisions of law.

Similar directions were issued by the Hon‘ble Supreme Court in Union of India

and Others v. Sushil Kumar Modi and others423

(popularly known as Bihar Fodder

Scam Case). The Court said that the nature of proceedings in the present case are

similar as are in Vineet Narain v. Union of India424

and Anukul Chandara Pradhan v.

Union of India425

and hence same measures will have to be adopted by the High

420 Charles A. Reich, ―The New Property‖ 73 YLJ 733-787 (1964). 421

(1998) 1 SCC 226. 422 Available at: http://indiatoday.intoday.in/story/jain-hawala-case-acquittals-of-advani-shukla-bring-cheer-

to-other-chargesheeted-politicians/1/275697.html (visited on June 6, 2016). 423 1997 (4) SCC 770 424 1996 (2) SCC 199 425 1996 (6) SCC 354

287

Court. The Court maintained that it has to be kept in mind that the purpose of these

proceedings is essentially to ensure performance of the statutory duty by the CBI and

the other government agencies in accordance with law for the proper implementation

of the rule of law. Hence, rule of law is the prime objective which has to be followed

by the investigation agencies. In Sushil Kumar Modi and Others v. State of Bihar and

Others426

, the Hon‘ble Patna High Court directed the Central Bureau of Investigation

to enquire and scrutinize all cases of excess drawls in the Department of Animal

Husbandry, lodge cases where the drawls were found to be fraudulent and take the

investigation to its logical end, as early as possible; preferably, within four months.

The Court observed that the Director of the Central Bureau of Investigation was

interfering into the investigation. It ordered that no officer concerned into the

investigation shall be shifted without the prior approval of the Chief Justice of the

Patna High Court. The position was further cleared by the Hon‘ble Supreme Court in

appeal which we have already discussed.

This indirect method of quashing arbitrary administrative actions or decisions

has its limitations. It has a narrow application. By judicial review biased actions or

decisions of the executive are struck down but the persons who were behind taking

those decisions or actions are not punished generally. Thus the judicial review is only

a temporary measure to combat the evil of corruption and the courts do not go behind

such actions or decisions of the administration to find out the real motive or corrupt

intent. In this way, only the actions or decisions relating to policy-matters are quashed

by the courts and the policy makers do not get punished for their bad decisions related

to policies. That is why it is termed as an indirect method to control the evil of

corruption.

5.3.2. CORRUPTION AND VIOLATION OF FUNDAMENTAL RIGHTS

The evil of corruption has affected all the aspects of life. It is pervasive in all

domains of life along with the polity and administration. The violation of basic

principles of human rights by the policies or actions of executive or administration has

resulted into violation of fundamental rights of people. The right to equality, equal 426 1996 (2) BLJR 869

288

treatment and protection of law are the cardinal principles of the Indian Constitution.

But these principles are violated by the executive actions made for enriching evil

motive of the policy-makers. Under civil law as well, the public servants are not

immune from liability and if they do anything outside their duty is met with liability.

An unavoidable injury resulting out of a lawful action is not subject to liability. But an

act committed with negligence is not exempted from liability. Common Cause a

Registered Society v. Union of India427

is a remarkable case in this regard where the

Hon‘ble judges stated that: ―We are of the view that the legal position that exemplary

damages can be awarded in a case where the action of a public servant is oppressive,

arbitrary or unconstitutional is unexceptionable. The question for consideration,

however, is whether the action of Capt. Satish Sharma makes him liable to pay

exemplary damages. In view of the findings of this Court in Common Cause Case -

quoted above - the answer has to be in the affirmative.‖ In this case also the matter

was brought before the Hon‘ble Supreme Court through public interest litigation by

invoking provisions of the Constitution.

5.3.3. CONSTITUTIONAL BASIS OF THE POWERS OF THE APEX COURT

Public interest litigations have emerged as a great constitutional weapon to deal

with the instances of violation of fundamental rights. The Hon‘ble Supreme Court has

given tremendous response to the public interest litigations filed for curbing the evil of

corruption. It has activated the machinery of the State for the welfare of general

public. For example; in Bihar Fodder Scam and Hawala case it has given directions to

the Central Bureau of Investigation to carry out investigation in a proper way as

directed by the Supreme Court as it was not obliging its duties properly. In addition, it

has also passed strong comments upon their working. In Coal Scam case428

also,

Justice R.M. Lodha has reiterated the need and stressed upon bringing Central Bureau

of Investigation out of the control of the government. There are many more examples

of such actions taken by the Hon‘ble Supreme Court in corruption cases to provide

427 AIR 1996 SC 1619 428 Venkatesan, J., ―We should liberate CBI from interference, says Supreme Court‖, Available at:

http://www.thehindu.com/news/national/we-should-liberate-cbi-from-interference-says-supreme-

court/article4669746.ece (visited on June 8, 2016).

289

justice. But, there is a debate upon these directions in context of Judicial-Activism.

Some argue that it a transgression of powers of the executive which is a fake argument

citing constitutional affiliation provided to the Court through various provisions in this

regard.

The Hon‘ble Supreme Court entertains the petitions of the public spirited

individuals under Article 32 of the Constitution to protect fundamental rights of the

individuals. Similarly, the High Courts are also equipped with the same powers (even

more) under Article – 126 of the Constitution. In addition, there are various other

provisions enshrined into the Constitution which support this Judicial Activism. The

laws declared by the Supreme Court are binding upon all other courts in the

country429

. Under Article 142 it is provided that the Court may pass any order or

decree for providing ―complete justice‖ in a case pending before it. In addition it is

also provided that such order or decrees passed by the Supreme Court of India are

enforceable throughout the territory of India. Article 144 of the Constitution of India

is also important in this regard. According to Article 144, all the civil and judicial

authorities within the territory of India shall act in aid of the Supreme Court of India

and provide all assistance in this regard.

Every public office is endowed with certain power and functions to be executed

for the sake of public welfare as a duty of welfare State. This power has to be applied

only for this purpose as they are holding these powers under the trust of general

public. But sometimes the holders of these powers use these powers arbitrarily for

their personal benefits. Any deviation from proper application of power will amount

to breach of trust and the wrongdoer shall be held liable accordingly. It is the

obligation of the judiciary to avoid disintegration of the principles of law. The Court

has to evolve methods or procedures to deal with this problem and for that purpose it

is equipped with necessary powers under the Constitution as we have discussed. These

powers have the backing of law and are not arbitrary or unjustified.

429 The Constitution of India, art. 141.

290

5.4. LIMITATIONS OR SHORTCOMINGS OF THE ACT

In Chapter – IV, we have discussed about various salient features of the Act.

There is a fine mechanism to book the accused persons under the Prevention of

Corruption Act, 1988. The investigation agencies are equipped with vast powers

regarding summon, arrest and other related actions regarding the investigation of

offence under the Act. The accused persons are dealt with punishment, if they are

found guilty. There are provisions regarding Special courts and Special Judges. There

are also provisions regarding fine and attachment of ill-gotten properties. In spite of

the existence of all these provisions; there are some loopholes or limitations within the

Act because of which it has been very difficult to cope with the problem of bribery

and corruption which is manifest from the increasing instances of bribery and

corruption. Following are some of the examples of these loopholes which we are

going to discuss later in detail:

i. Insufficient punishment;

ii. Act applicable only upon public servants;

iii. Act does not cover corporate or private bribery;

iv. Act not applicable upon foreign public officials;

v. Act does not have extra-territorial application.

As a result of existence of these loopholes the corrupt persons do not have any

fear of law. That is why, it has become the need of the hour to remove or mitigate the

effect of these loopholes or shortcomings for attaining effective implementation of the

Act. In this part, we are going to discuss the causes, effects and possible solutions to

these limitations or shortcomings.

It is a well-known saying that ―Prevention Is Better Than Cure‖. The purpose

of a Penal statute is not only to punish the wrong doers but also to deter the possible

wrongdoers to get involved in such acts in future. Even the short title of the Act

suggests the same. The evil of corruption is impossible to eradicate, hence the word

‗prevention‘ is used by the legislators to control this. Prevention of an offence restricts

the expanse of that particular offence in future and provides a better place to live in.

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Curbing corruption has been a key development issue in India in wake of various

scams and frauds have been coming out regularly. It was top most agenda of the

political parties in recent parliamentary elections. The erstwhile government suffered

badly into the elections because of failing to curb the instances of corruption during its

term. The people showed their urge, demand and anger against the evil of corruption.

Hence, it should be the prime objective of the present government to control this evil

by providing sound teeth to the present legislations and by enacting new, if needed.

The presence of various lacunas, defects or shortcomings into the legislation is

proving to be a boon to the corrupt public servants. They are using these lacunas for

their personal gain. Because of these lacunas they are fleeing away from the hands of

law freely without any hiccups. They are using machinery of the State for their own

purposes and hindering the way of development to the cost of common man. It is a

very difficult situation for a developing country like India which is seeking to become

a Global Guru in various aspects of economy. In addition, there is lack of

coordination and understanding between various enforcement and investigation

agencies. This lack of coordination is resulting into opportunities for the corrupt

people to get indulged into malpractices.

The cobweb of corrupt politicians and public officials is resulting into great

loss of economy to the nation and poor people have not been able to take benefits of

government schemes because of this. They are diverting the funds meant for the

welfare of lower and middle class to themselves causing inequality and chaos into the

society. Moreover, the higher officials of these investigation agencies are appointed

by the government on the basis of deputation, recommendations etc. giving enough

scope to both of them to get involved into corrupt practices. It is an irony that the

corrupt personnel get profitable jobs while the honest officials are kept sidelined

because they may hamper the corrupt activities of the corrupt politicians and

bureaucrats.

There are several lacunas within the Act like – punishment system is not

effective. Punishment awarded to the wrongdoers is very less as compared to the acts

committed by them. Provisions are not effectively enacted and there are some inherent

292

lacunas which we are going to discuss next. The requisite of taking sanction from the

proper authority is also an impediment to book criminals under the Act. This

protection to the public servants is against the concepts of Equality before Law and

Equal Protection of Law. The corrupt public servants are using this protection at the

cost of common man and taxpayers. The provisions of sanction are in themselves

against the basic features of the Constitution i.e. the Principle of Equality. These

provisions have to be looked about by the legislature in wake of urging demand

against the evil of corruption from all the quarters of society and necessary changes

and amendments have to be carried out to solve this problem by keeping in mind the

interests of general public and public servants as well.

The modus operandi of the corrupt public servants is very typical. In the

absence of Citizen‘s Charter there is no binding duty upon them to perform their

functions within a prescribed period of time. They use these lacunas of administration

to harass common man by deliberately delaying their functions. In this way the

general public is forced to offer bribe to them to get their work complete in time. They

only have the option to complain to their higher officials who also happened to be

involved into those corrupt activities. There are no clear provisions about attachment

of properties of the wrongdoers. Daily we come to know about the huge wealth

accumulated by the public servants who are employed even on third or fourth category

of jobs. It is only because of incompetency of the investigation officers and faulty

legal provisions. They do not fear going behind the bars for the sake of properties of

high value and huge amount of money.

The government is also wary of the defects or lacunas of the Prevention of

Corruption Act, 1988 and hence a bill was introduced into the Parliament but was not

passed because of various reasons. Similarly, the Lokpal and Lokayuktas Act, 2013

(No. 1 of 2014) was also passed but was not implemented as there are some

amendments which are needed to be executed first in this context. Rather refining the

provisions of the Prevention of Corruption Act, 1988, the Lokpal and Lokayuktas Act

has created various confusions which we are going to discuss later on. The Prevention

293

of Corruption (Amendment) Bill, 2013 is based upon the report430

submitted by the

Law Commission of India. It has suggested various amendments into the Act which

are in the pipeline for a long time which should be implemented soon keeping in mind

the severity of the problem of corruption.

The problem is that there has been no appointment of Lokpal under the Lokpal

and Lokayuktas Act, 2013 (No. 1 of 2014). The government says that there were some

amendments which could be brought in to improve the effectiveness, transparency and

also smoother functioning of the Lokpal Act431

. It also contended that the appointment

of chairperson and members of Lokpal will happen soon after a report is received

from a Parliamentary Committee which is examining certain amendments in the anti-

corruption law432

. These changes into the anti-corruption legislations should be

implemented with the immediate effect.

Law is for the society which has to adapt itself to the new changes emerging

into the society as change is the fundamental feature of the society. Criminals are

evolving new methods every time to fly away from the clutches of the law. Law has to

bring all those activities within its ambit to control the crimes it is dealing with. There

is not a single legislation complete or perfect in itself. Like any other law, there may

be some shortcoming within the anti-corruption legislation. In present context we are

going to find out and discuss about these shortcomings or limitations, if they exist.

The next step will be to give suggestion about removing those shortcomings which are

proving to be obstacles to good governance. In present context, following are the

loopholes or shortcomings of the Prevention of Corruption Act, 1988 which have to be

dealt with accordingly:

5.4.1. LOOPHOLE IN PROVISIONS RELATING TO PUNISHMENT

A criminal legislation without provisions of punishment is like a mouth without

teeth which cannot serve any purpose. Punishment is the sine qua non of an effective 430

Report No. 254, ―The Prevention of Corruption (Amendment) Bill, 2013‖ submitted by the Law

Commission of India on February 12, 2015. 431 ―Lokpal, CVC, CIC appointments in due course: Jitendra Singh‖, Available at:

http://www.thehindu.com/news/national/lokpal-cvc-cic-appointments-in-due-course-jitendra-

singh/article6799026.ece (visited on June 1, 2016). 432 Supra note 431.

294

legislation to punish the wrongdoers and to restrain possible wrongdoers to do such

illegal activities in future. Hence, the system of punishment serves the dual purpose of

controlling crime into the society and punishing the criminals. A near perfect criminal

justice system is equipped with sound provisions to control crimes. Effective

provisions relating to punishment of the crimes are thus essentials of an effective

criminal justice system.

The criminal justice system loses its relevance if the provisions regarding

punishment provide punishment for a lesser term than need to be given. Similarly, a

less severe punishment also loses its deterrent effect in cases where the gains seem to

be more satisfying than going behind the bars. So there has to be an effective system

of awarding punishment keeping in mind the vulnerability and effect of the offence in

concern. Bribery and corruption should be treated effectively because these are crimes

against the nation and encourage inequality by defeating the noble purpose of social

justice. In this part, we are going to discuss about the loopholes within the provisions

providing for punishment under the Prevention Act, 1988.

5.4.1.1. INSUFFICIENT PUNISHMENT NOT PROVING TO BE A

DETERRENT TO COMMIT CRIME

First of all, there are no provisions under the Prevention of Corruption Act,

1988 providing punishment for longer terms. The duration of imprisonment under the

Act seems to be insufficient citing huge amount of money involved into a number of

instances. The criminals do not mind to go behind the bars for some years in return of

such a huge amount which can serve many of his future generations. We have seen in

recent years that big fraudsters have made good fortune without any fear of

punishment or law. They are finding it a good bargain to get involved into corrupt

transactions than to go behind the bars for a few years. One of the most notorious out

of them has been Subrata Roy, the founder of Sahara who was imprisoned in 2014

after failing to comply with a Supreme Court order to return money raised under

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deposit plans later declared unlawful. The court has asked Sahara to give back $5.4

billion to depositors in those forbidden activities433

.

The Lokpal and Lokayuktas Act, 2013 (No. 1 of 2014) has made some reforms

by enhancing the duration of the imprisonment to some extent. Though the Act has

increased the duration, yet it has left some provisions untouched viz. Sections 10 and

11. There has been no extension of duration within these two sections and the

minimum and maximum sentence still remains at six months and five years

respectively. The acts of corruption are crimes against nation so it should be

popularized as a national crime which should be met with very harsh punishment. A

corrupt person is hindering the welfare activities of the State aimed for the welfare of

taxpayers and poor people. He should be awarded life imprisonment with fine for

cases of corruption. If he is involved in embezzlement of huge money; the punishment

should be rigorous imprisonment. So the punishment provided under the Act should

be harsh upon the wrongdoers for serving the purpose of the law.

5.4.1.2. INCONSISTENCY REGARDING PUNISHMENT BETWEEN

SECTION 13 AND 14

The Lokpal and Lokayuktas Act, 2013 (No. 1 of 2014) has made some reforms

by enhancing the duration of the imprisonment to some extent. Though the Act has

increased the duration, yet there is a lacuna within the provision which was also there

before the amendments made by the Lokpal and Lokayuktas Act, 2013. Now, we are

going to analyse the relevant provisions of the Act in this context which are:

13. Criminal misconduct by a public servant

(1) A public servant is said to commit the offence of criminal misconduct,-

(a) if he habitually accepts or obtains or agrees to accept or attempts to

obtain from any person for himself or for any other person any gratification

433 ―Govt plans legislation to crack down on Ponzi schemes‖, Available at:

http://timesofindia.indiatimes.com/business/india-business/Govt-plans-legislation-to-crack-down-on-

Ponzi-schemes/articleshow/52501270.cms (visited on May 31, 2016).

296

other than legal remuneration as a motive or reward such as is mentioned in

section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to

obtain for himself or for any other person, any valuable thing without

consideration or for a consideration which he knows to be inadequate from any

person whom he knows to have been, or to be, or to be likely to be concerned in

any proceeding or business transacted or about to be transacted by him, or

having any connection with the official functions of himself or of any public

servant to whom he is subordinate, or from any person whom he knows to be

interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise

converts for his own use any property entrusted to him or under his control as

a public servant or allows any other person so to do; or

(d) if he,-

(i) by corrupt or illegal means, obtains for himself or for any

other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for

himself or for any other person any valuable thing or pecuniary

advantage; or

(iii) while holding office as a public servant, obtains for any

person any valuable thing or pecuniary advantage without any public

interest; or

(e) if he or any person on his behalf, is in possession or has, at any time

during the period of his office, been in possession for which the public servant

cannot satisfactorily account, of pecuniary resources or property

disproportionate to his known sources of income.

297

Explanation.-For the purposes of this section, "known sources of

income" means income received from any lawful source and such receipt has

been intimated in accordance with the provisions of any law, rules or orders

for the time being applicable to a public servant.

(2) Any public servant who commits criminal misconduct shall be

punishable with imprisonment for a term which shall be not less than four

years but which may extend to ten years and shall also be liable to fine.

And Section 14 of the Act is also relevant to study which states that:

14. Habitual committing of offence under sections 8, 9 and 12

Whoever habitually commits-

(a) an offence punishable under section 8 or section 9; or

(b) an offence punishable under section 12,

shall be punishable with imprisonment for a term which shall be not less than

five years but which may extend to ten years and shall also be liable to fine.

Here, we can analyse that the punishment under Section 13 is minimum four to

ten years of imprisonment and under Section 14 is minimum five to ten years. The

minimum punishment under Section 13 shall also be extended to five years as the

nature of offences under Sections 13 and 14 is similar both punishing the acts of

habitual offenders which is evident from the use of word ―habitually‖ under the

provisions. Earlier, before the passing of the Lokpal and Lokayuktas Act, 2013 (No. 1

of 2014), the term of punishment was ―one year minimum and seven years maximum‖

under Section 13 and ―two years minimum and seven years maximum‖ under Section

14.

It is also interesting to note here that there is no limit as to number of instances

to establish the ―habit‖ of the accused. It is necessary to establish a number of

instances of bribery spread over a reasonable period of time. It was held in

298

Biswabhusan Naik v. State434

that the legislature has not imposed any limit as to the

number of instances or the period to be covered as being sufficient or necessary for

proof, which it might well have done.

5.4.1.3. ABETMENT OF OFFENCE COMMITTED UNDER SECTION 11 IS

PUNISHED WITH MORE SENTENCE THAN THE OFFENCE

ITSELF

Another lacuna left within the legislation is concerned with Section 11. Section

11 punishes the public servants obtaining valuable thing, without consideration from

person concerned in proceeding or business transacted by such public servant. The

offence is punishable with imprisonment for a term which shall be not less than six

months but which may be extended up to five years, in addition with fine. But, Section

12 of the Act punishes the abetment of offences committed under Section 7 and 11.

The punishment given for that purpose shall not be less than three years which may be

extended up to seven years of imprisonment, along with fine (as amended by the

Lokpal and Lokayuktas Act, 2013). Here we can analyse that the acts constituting

punishment given for the abetment of offence (under Section 12) committed under

Section 11 is punished with more sentence than the offence itself under Section 11.

Same is the fate of Section 10 which punishes the abetment of offences

committed under Sections 8 and 9. Under Section 10, the minimum punishment

provided is six months which may be extended up to five years of imprisonment in

addition with fine. While, under Sections 8 and 9 which punishes the offence the

minimum punishment is three years which may be extended up to seven years of

imprisonment with fine. It is against the basic principle of punishment provided under

the Indian Penal Code which contemplates same punishment for the abettor as is

provided for the wrongdoer, but here it is less. We hope that the Lokpal and

Lokayuktas and other related Law (Amendment) Bill, 2014 which was first

434 AIR 1952 Ori. 289.

299

introduced435

in Lok Sabha on December 18, 2014 by the Minister for Personnel,

Public Grievances and Pensions will come with removing all these shortcomings.

5.4.1.4. NO AMENDMENT IN SECTION 10 AND 11

As we have discussed there were certain amendments made into the Prevention

of Corruption Act, 1988 by the Lokpal and Lokayuktas Act, 2013 (No. 1 of 2014).

The Act was enacted citing the demand of strong anti-graft machinery efficient

enough to deal with the evil of corruption at all levels. The Act has amended certain

provisions of the Prevention of Corruption Act, 1988. Mainly, it has extended the

duration of the punishment provided for the offences committed under the Prevention

of Corruption Act, 1988. But some lacunas were left by the amending Act. One of

such lacuna is non-amendment of Section 10 and 11. While the duration of other

offences was extended by the Act, Section 10 and 11 were left untouched which has

resulted into confusion. The result of non-amendment of Section 10 is that abetment

of offences committed under Section 8 and 9 is punished with lesser sentence than the

offence itself, which appears absurd.

Similarly, no changes were made into Section 11 as well. The result of which is

that the public servants obtaining valuable thing, without consideration from person

concerned in proceeding or business transacted by such public servant is still

punishable with lesser punishment as compared to other provisions of the Act. Here,

he is punishable with a minimum imprisonment of six months which may be extended

up to five years of imprisonment along with fine. Wherever, by evaluating other

provisions of the Act we can easily find that minimum punishment provided is three

years of imprisonment which may be extended up to seven years of imprisonment, in

addition with fine.

5.4.2. ACT APPLICABLE ONLY UPON PUBLIC SERVANTS

One of the major drawbacks of the Act is that it is applicable upon public

servants and does not cover other persons. Section 2 of the Act gives a categorical list

435 Available at: http://www.prsindia.org/billtrack/lokpal-and-lokayuktas-and-other-related-law-amendment-

bill-2014-3503/ (visited on June 2, 2016).

300

of the persons who are deemed to be public servants for the purpose of the Act. The

Preamble of the Act states that it is an Act to consolidate and amend the law relating

to the prevention of corruption and for matters connected therewith. It is nowhere

mentioned into the Preamble that it is an Act to implement prevention of corruption

among public servants. And on 23rd

February 2016, this very fact was utilized by the

Hon‘ble Supreme Court to extend the meaning of the term ―public servant‖ in a recent

judgment wherein it was held by the Court that every chairman who is appointed on a

whole-time basis, managing director, director, auditor, liquidator, manager and any

other employee of a banking company shall be deemed to be a public servant for the

purposes of the Indian Penal Code436

.

In this particular case, i.e. Central Bureau of Investigation, Bank Securities &

Fraud Cell v. Ramesh Gelli & Others437

and Ramesh Gelli v. Central Bureau of

Investigation through Superintendent of Police, BS & FC & Anr.438

, the Court has

taken help from the views expressed by Lord Atkin in McMillan v. Guest439

, that the

expression ‗office‘ to be referable to a position which has existence independent of the

person who fills up the same and which is required to be filled up in succession by

successive holders.

But this judgment of the Hon‘ble Supreme Court is applicable only where there

exists ―office‖ dealing with a ―public duty‖ and not under all circumstances. Thus the

judgment of the Court has a narrow application irrespective of the pro-active role

played by the judiciary. It is not the function of the judiciary to legislate and that is

why the legislature shall take notice of these developments and should adopt a

universal approach in dealing with the evil of corruption and should bring more and

more persons within the ambit of the legislation. The legislature should adopt a

broader approach to cover various new categories of person under the purview of the

Act. A broader approach is necessary in the light of the facts that the modern welfare

436

Hemant K. Batra, ―The Private Bankers are deemed Public Servants‖, Available at:

http://speakingthreads.org/2016/02/26/the-private-bankers-are-deemed-public-servants/ (visited on May 30, 2016).

437 Supra note 323. 438 Supra note 324. 439 (1942) AC 561

301

State is engaged in a number of activities. The State may not have sufficient funds,

resources or money to implement various welfare schemes for the people. Thus it has

to engage various persons or agencies by delegating ―public duty‖ to them. Various

new avenues have arrived like ―public-private participation‖ (PPP) and delegation of

powers by the executive have made the situation critical. So the legislature has to

come forward to deal with the evil of corruption in the changed scenario by making

necessary changes or amendment into the anti-corruption legislation. In addition, there

is urgent need of pro-active role to be played by the judiciary by adding more and

more persons to the list of public servants. The collective effort of the legislature

along with pro-active approach taken by the judiciary may be very helpful in bringing

some positive results in context of prevention of corruption.

5.4.3. DOES NOT PUNISH INSTANCES OF CORPORATE OR PRIVATE

BRIBERY

The Prevention of Corruption Act, 1988 punishes the wrongful corrupt

activities of public servants who are mentioned under Section 2 (c). The Act nowhere

punishes the corrupt activities which come under the domain of corporate bribery.

Neither the cases of private bribery are covered under the Act. There are only a few

instances (under Section 8 and 9) where the acts of private persons are punishable, and

that too in context of public servants. Otherwise there are no provisions with the help

of which the Court may punish wrongdoers for the acts of bribery and corruption.

Under Section 8 an agent or, any other person, receiving illegal gratification on behalf

of a public servant is covered it is provided that:

Whoever accepts or obtains, or agrees to accept, or attempts to obtain,

from any person, for himself or for any other person, any gratification

whatever as a motive or reward for inducing, by corrupt or illegal means, any

public servant, whether named or otherwise, to do or to forbear to do any

official act, or in the exercise of the official functions of such public servant to

show favour or disfavour to any person, or to render or attempt to render any

service or disservice to any person with the Central Government or any State

Government or Parliament or the Legislature of any State or with any local

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authority, corporation or Government company referred to in clause (c) of

section 2, shall be punishable.

In other words, we can say that the persons who is agent or, receives bribery on

behalf of public servant is covered under this Section. While, under Section 9 the

persons who take gratification for exercising their influence with public servants are

covered. These are stray instances where persons other than public servants are

punished under the Act.

While discussing Preamble of the Act we can find that it is an Act to

consolidate and amend the law relating to the prevention of corruption and for matters

connected therewith. It is nowhere stated into the Preamble that it is an Act to

implement prevention of corruption among public servants only. A significant

development came on 23rd

February 2016, when the Hon‘ble Supreme Court, in

Central Bureau of Investigation, Bank Securities & Fraud Cell v. Ramesh Gelli &

Others440

and Ramesh Gelli v. Central Bureau of Investigation through

Superintendent of Police, BS & FC & Anr.441

, extended the meaning of the term

―public servant‖. In this judgment it was held by the Court that every chairman who is

appointed on a whole-time basis, managing director, director, auditor, liquidator,

manager and any other employee of a banking company shall be deemed to be a

public servant for the purposes of the Indian Penal Code442

. This judgment may be

called an effective development into the field of anti-corruption when it comes to

cover cases of corporate bribery.

But ironically, this judgment of the Hon‘ble Supreme Court is applicable only

where there exists ―office‖ dealing with a ―public duty‖ and not under all

circumstances. Thus the judgment of the Court has a narrow application irrespective

of the brave step taken by the judiciary. The judgment is not sufficient enough to

cover all instances of private bribery and has limited application as it is related with

private banking company only. The requisite remedy is not with the judiciary as it

440 Supra note 323. 441 Supra note 324. 442 Supra note 436.

303

cannot legislate in such a broad manner. The matter rests with the legislature and it is

incumbent upon legislature to cover instances of private bribery under the application

of anti-corruption mechanism. The functioning of welfare State has prompted us to

look into the matter with broader outlook so as to cover all instances of private

bribery. So the legislature has to come forward to deal with the evil of corruption in

the changed scenario by making necessary changes or amendment to the anti-

corruption legislation. In addition, the pro-active role of judiciary is also desirable in

bringing more and more persons to the list of public servants.

5.4.4. DOES NOT COVER CORRUPTION OF FOREIGN PUBLIC

OFFICIALS

As we have discussed corruption is a universal phenomenon having

multidimensional attributes. It is not restricted to domestic sphere only. It has many

other dimensions and is prevalent internationally. In establishing and maintaining

international cooperation and relations a number of foreign public officials are

employed by respective countries. These foreign public officials may also be involved

into corrupt practices. Currently, there is no domestic legislation in India which can

punish the acts of international bribery i.e. the acts of bribery committed by foreign

public officials443

.

There is lack of consensus among the nations about corrupt criminal conduct.

To resolve this, the United Nations Convention against Corruption, 2003 (UNCAC)

was introduced to establish clarity on the criminalization of corrupt conduct that is

acceptable for all the nations. As of today, 176 countries have signed and ratified the

UNCAC and guaranteed to include its provisions into their national law444

. India is

one of such countries and it has signed the United Nations Convention against

Corruption on December 9th

, 2005. As per the provisions445

of the Convention it is

necessary for a State Party to incorporate the provisions relating to bribery of foreign

443 Report No. 258 of Law Commission of India on ―Prevention of Bribery of Foreign Public Officials and

Officials of Public International Organisations—A Study and Proposed Amendments‖ 01, submitted on

August 27, 2015. 444 Ibid. 445 The United Nations Convention against Corruption, 2003 (UNCAC), art. 16.

304

officials within their domestic law. Under Article 16, States Parties are required to

penalize the offer and acceptance of an undue advantage to, and by, a foreign public

official or an official of a public international organization for acts and omissions that

are contrary to his official duties. For this purpose the Prevention of Bribery of

Foreign Public Officials and Officials of Public International Organizations Bill, 2011

was introduced in the Lok Sabha on March 25, 2011 by the Minister of State for

Personnel, Public Grievance and Pensions446

. The Bill lapsed because of dissolution of

16th

Lok Sabha. We hope that the Bill will be reintroduced by the present Lok Sabha in

near future so as to comply with international obligations.

5.4.5. THE PREVENTION OF CORRUPTION ACT, 1988 DOES NOT HAVE

EXTRA-TERRITORIAL APPLICATION

There are certain countries which have anti-corruption and anti-bribery statutes

that have extra territorial jurisdiction extending to the actions of associate companies

in foreign dominions. In the United States of America, there is Foreign Corrupt

Practices Act, 1977 (FCPA) which can possibly extend to a US investor‘s investee

company abroad. The Foreign Corrupt Practices Act, 1977 is efficient enough to

expose the investor‘s management in the United States to penal liabilities if such

abroad investee company has been involved in giving bribe or unjustifiably

persuading a public official. The United Kingdom has also enacted the Bribery Act,

2010 with effect from July 2011. The UK Bribery Act of 2010 has also momentous

extra territorial application. The Act criminalizes the act of giving bribes to foreign

public officials and private bribery as well in foreign jurisdictions which may not have

any relation to the investor‘s business in UK447

.

As compared to these legislations, we find the Prevention of Corruption Act,

1988 incompetent to deal with such instances. For removing this difficulty the

Prevention of Bribery of Foreign Public Officials and Officials of Public International

446 Available at: http://www.prsindia.org/billtrack/the-prevention-of-bribery-of-foreign-public-officials-and-

officials-of-public-international-organisations-bill-2011-1601/ (visited on June 3, 2016). 447 ―The Viewpoint – Issues relating to bribery and corruption in MampA transactions A legal insight‖,

Available at: http://barandbench.com/viewpoint-issues-relating-bribery-and-corruption-mampa-

transactions-legal-insight/ (visited on June 3, 2016).

305

Organizations Bill, 2011 was introduced in the Lok Sabha on March 25, 2011 by the

Minister of State for Personnel, Public Grievance and Pensions448

. The Bill lapsed

because of dissolution of 16th

Lok Sabha. We hope that the Bill will be reintroduced by

the present Lok Sabha in near future for controlling corrupt practices of foreign public

officials.

5.4.6. NEED OF SANCTION – UNNECESSARY BURDEN UPON

PROSECUTION

Under Section 19 it is provided that there is need of obtaining prior sanction

from the relevant authorities in instances of corruption. No Court can take cognizance

of the offences committed under the Act if this requirement is not complied with by

the prosecution. The prerequisite of taking sanction before taking cognizance is

mandatory to the court. This prerequisite cannot be avoided in any case. We have seen

in a number of instances that there is unnecessary delay in prosecuting public servants

because of this provision. Equality before law and Equal Protection of Law are the

cardinal principles of natural justice. But by making prior sanction necessary has

attacked these principles considerably.

There are some reasons in favour of making sanction necessary. The main

reason behind making sanction mandatory is the object of protecting an innocent

public servant against unwarranted and mala fide prosecution. They should be given

some protection to follow their duty without any fear of malicious or frivolous

prosecution. The Hon‘ble Supreme Court has also maintained the validity of the

Section 19 many times. The most recent case is Manzoor Ali Khan v. Union of

India449

where the Supreme Court has established the validity of the Section. Other

important instances where the Hon‘ble Supreme Court has established the validity of

Section 19 are450

:

448 Supra note 446. 449 (2015) 2 SCC 33. 450 Ashok Dhamija, ―Is requirement of sanction under Prevention of Corruption unconstitutional?‖

Available at: http://tilakmarg.com/news/is-requirement-of-sanction-under-prevention-of-corruption-

unconstitutional/ (visited on June 4, 2016).

306

i. Vineet Narain v. Union of India451

In this case, the Court held that the requirement of sanction for prosecution

being provided in the very statue which enacts the offence, the sanction for

prosecution is a pre-requisite for the court to take connivance of the offence.

ii. Subramanian Swamy v. Manmohan Singh452

The Hon‘ble Supreme Court has established that it is incumbent upon the

sanctioning authority to follow the guidelines of Vineet Narain Case. The Court said

that ―At the same time, we deem it proper to observe that in future every Competent

Authority shall take appropriate action on the representation made by a citizen for

sanction of the prosecution of a public servant strictly in accordance with the direction

contained in Vineet Narain v. Union of India453

and the guidelines framed by the

CVC.‖

In Manzoor Ali Khan v. Union of India454

, the Hon‘ble Supreme Court has

established the validity of the prerequisite of sanction. The Court held that:

―Requirement of sanction has salutary object of protecting an innocent public servant

against unwarranted and mala fide prosecution. Undoubtedly, there can be no

tolerance to corruption which undermines core constitutional values of justice,

equality, liberty and fraternity. At the same time, need to prosecute and punish the

corrupt is no ground to deny protection to the honest. Mere possibility of abuse cannot

be a ground to declare a provision, otherwise valid, to be unconstitutional.‖

The problem is that this Section is used as a shield to protect corrupt public

servants from prosecution. The connivance of corrupt public servants with politicians

is harming the object of the Act badly and some guidelines are needed in this regard

by the Hon‘ble Court. There are many instances where the accused got undue benefit

of this provision and were left outside the reach of law and due process. The petitioner

in Manzoor Ali Khan v. Union of India455

has given reference of following cases

where many persons holding key top most positions in government were indicted even

451 (1996) 2 SCC 199. 452 (2012) 3 SCC 64. 453 (1998) 1 SCC 226. 454 (2015) 2 SCC 33. 455 Ibid.

307

by the Supreme Court, but yet they could not be prosecuted because of non-approval

of sanction for prosecution:

i. Common Cause v. Union of India456

ii. Shiv Sagar Tiwari v. Union of India457

iii. M.C. Mehta v. Union of India458

(Taj Corridor Case)

iv. Prakash Singh Badal v. State of Punjab459

v. Lalu Prasad @ Lalu Prasad Yadav v. State of Bihar and Others CBI

(AHD) Patna460

vi. K. Karunakaran v. State of Kerala461

vii. Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi462

Thus, we have encountered with the defects of this provision a number of

times. This provision is proving to be a big hindrance in booking the criminals under

the Prevention of Corruption Act. It is the cardinal principle of Criminal Justice

system that once a crime is committed, the accused shall be booked and prosecuted,

and to be punished if proved guilty. But the prior requirement of sanction is defeating

the object of this principle. No special privilege or liberty should be given to the

public servants in this context. Rather some other measures may be introduced like

non-suspension from the services until proved guilty etc.; and that too in rare

instances. Sometimes the process is so pathetic that creates the effect of acquittal even

without holding any trial because of non-grant of sanction by the concerned authority

because of various reasons. Another fallacy of the Act is that no proper guidelines or

measures are provided under the Act about the process of sanction. There is urgent

need of deleting this provision of the Act, if not; introduction of proper guidelines or

measures is the prime need in this context.

456 (1996) 6 SCC 593. 457

(1996) 6 SCC 599. 458 (2007) 1 SCC 110. 459 (2007) 1 SCC 1. 460 (2007) 1 SCC 49. 461 (2007) 1 SCC 59. 462 (1987) 1 SCC 227

308

5.4.7. SECTION 21 ALREADY EXISTS UNDER THE CODE OF CRIMINAL

PROCEDURE

Section 21 of the Prevention of Corruption Act establishes that the persons who

have been accused under the Act shall be competent witnesses in the eyes of law

under some specified circumstances. This provision was added to give fair opportunity

to the accused to defend his case. Hence, the provision favours the concept of natural

justice by providing an accused all opportunities to plead his case and he may act as a

witness for himself or any other persons accused under the same case. Under Section

21 of the Act, any person punishable under the Prevention of Corruption Act 1988

shall be a competent witness for the defence and may give evidence on oath in

disproof of the charges made against him or any person charged together with him at

the same trial. It is a welcome provision furthering the cause of natural justice and

there are no flaws within the section. But a limited technical flaw is that the wording

of the Section is the same as is given under Section 15 of the Code of Criminal

Procedure. Hence there was no need of incorporating this provision again within the

anti-corruption legislation.

5.4.8. DIFFICULTY IN IMPLEMENTING SECTION 3 AND 4 OF THE ACT

Though the Act contains certain significant provisions, yet there is problem or

difficulty in implementing these provisions. In this part, we are going to discuss these

practical difficulties in detail. Section 3 is about the appointment of special judges by

the Central or State government. It is provided that special judges should be appointed

by the concerned government to hear cases relating to corruption and bribery. It is also

provided that a person shall not be qualified for appointment as a special Judge under

this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or

an Assistant Sessions Judge463

. So minimum eligibility required for becoming a

special judge to hear cases relating to corruption is that the person should be a serving

or retired Assistant Sessions Judge. The practical difficulty lies into the fact of paucity

of qualified persons citing huge number of cases of corruption coming to the courts.

463 The Prevention of Corruption Act, 1988 (Act 49 of 1988), s. 3(2).

309

Moreover, one of the loopholes into the Act is that it provides for special

judges but does not provide for special kind of knowledge or expertise for becoming a

special judge. Special knowledge in the field of corruption is necessary to decide cases

of corruption. In addition there is a provision which necessitates the hearing of cases

of corruption on day-to-day basis464

. But, generally there is no such implementation of

the provision and the cases of corruption are met with multiple adjournments and

inordinate delay.

5.4.9. LACK OF COORDINATION BETWEEN DIFFERENT

INVESTIGATION AGENCIES

Lack of coordination between various investigation agencies is another

shortfall of anti-corruption legislation. An effective coordination among various

investigation agencies can lead to indictment of higher number of persons under the

anti-corruption laws which can lead to high conviction rate. The lack of coordination

results into acquittal of the accused. This lack of coordination along with other factors;

has resulted into inordinate delay in awarding justice and huge pendency of cases in

courts. It is an alarming situation as we know that ―Justice delayed is Justice denied‖.

The Law Commission of India has affirmed in its report465

that there are 1.90 crore

cases pending into the subordinate courts466

.

The purpose of report was to stress for expeditious investigation and trial of

criminal cases against influential public personalities. The people enjoying top key

positions in government try to bye-pass the effect of laws. They misuse their positions

to get out of prosecution or to delay prosecution. There is lack of co-ordination

between the police and public prosecutors. The assistance of concerned police officers

is not generally available to public prosecutors. In this situation they feel themselves

helpless in conducting prosecution effectively which seldom result into conviction.

Hence, there must be an environment favourable to different investigation agencies to

464

The Prevention of Corruption Act, 1988 (Act 49 of 1988), s. 4 (4). 465 Report No. 238, ―Expeditious Investigation and Trial of Criminal Cases Against Influential Public

Personalities‖, Law Commission of India, Submitted to the Supreme Court of India in W. P. (C) No.

341/2004, Virender Kumar Ohri v. Union of India & Others in March, 2012. 466 Table 4.9 and 4.13, Crimes in India, 2010 Statistics, published by National Crime Records Bureau,

Ministry of Home Affairs, Government of India.

310

work in an efficient manner to curb the evil of corruption. Proper coordination

between investigation agencies will serve the purpose of anti-corruption legislation by

convicting the accused persons with the help of evidences adduced for that purpose.

5.4.10. CONTROL OF GOVERNMENT OVER INVESTIGATION AGENCIES

The main aim of the Prevention of corruption Act, 1988 is to control the evil of

corruption. This can be implemented by punishing the wrongdoers and by adopting

measures to prevent similar instances in future. One of the main features of a sound

punishment system is that it plays an important role by deterring others to do the

similar crimes in future. People will be reminded of past punishments while doing

such criminal activities if there are strict provisions of punishment. A sound

mechanism of inflicting strict punishment gives a strong message to all possible

wrongdoers that they shall also be dealt with strictly under similar conditions. To

establish a sound punishment system leading to high conviction rate in corruption

cases; we need a strong, competent, expert and independent investigation agency

which does not exist in India. In India, the police, Central Bureau of Investigation and

other enforcement agencies are not free from the control of the government. This

effectively attacks their independence resulting into faulty investigation generally.

Even the highest court of justice has stressed upon the importance of

independence of investigation agencies numerous times and has given directions in

this regard, but the government is least concerned in bringing about this change

because of various reasons. The Hon‘ble Supreme court of India in Vineet Narain v.

Union of India467

popularly known as Jain Hawala Case has given strict directions to

the central Bureau of Investigation and the investigation of the case involving high

rank politicians was guided by the Court. The Court criticized the role of Central

Bureau of Investigation and directed that the Central vigilance Commission should be

given supervisory over it. Inaction and non-compliance of law by the Central Bureau

of Investigation were the main flaws in this case as established by the Court. As a

result, a number of accused were acquitted on the ground of lack of evidences468

. The

467 (1998) 1 SCC 226. 468 Supra note 422.

311

Central Bureau of Investigation is also aware about this problem and it has urged the

government to give functional autonomy to it469

. Hence it is the need of the hour to

bring Central Bureau of investigation and other Central and State investigation

agencies out of control of the government so that a fair investigation may be brought

out and the culprits may be punished as per the provisions of law.

5.4.11. NO PROVISION FOR EXPERT INVESTIGATION OFFICERS

Section 17 of the Prevention of Corruption Act, 1988 provides for the persons

who are authorized to conduct investigation of the offences committed under the Act.

It talks only about the ranks of such investigation officers and there is no provision

about having any kind of special knowledge or expertise into the field of corruption.

Now days, the scope of crimes related to corruption has enlarged to a great extent.

Criminals, now days are involved into corrupt activities executed under high secrecy

and they camouflage their transactions without giving any hint of such activities. They

use highly updated technical devices to commit such crimes. Use of Credit and Debit

Cards, Online transactions, plastic money, internet banking and other cyber activities

are executed by them in a very secret way. On the other hand the officers investigating

such crimes are not well equipped with such knowledge which results into acquittal of

the accused persons on technical ground of lack of evidences. The acts of the accused

have to be proved beyond any reasonable doubt and they get benefit of lack of

knowledge of investigating officers. There should be proper provisions about training

and expertise of the investigation officers. They should be trained in cyber law,

forensic science and cyber knowledge should be imparted upon them. Anti-Corruption

Bureaus (ACB‘s) shall be equipped with adequate staff trained in forensic science and

cyber-crimes along with Chartered Accountants, Company Secretaries etc.

5.4.12. NO PROPER MECHANISM FOR TRAP CASES

In corruption cases, there are secret dealings between the briber giver and bribe

taker. These dealings are executed in a very secret way to accomplish their corrupt

469 Somesh Jha, ―Autonomy to prosecution wing: new CBI chief writes to Centre‖, Available at:

http://www.business-standard.com/article/printer-friendly-version?article_id=115010201056_1 (visited

on March 18, 2016).

312

objectives. That is why it becomes very difficult to book such corrupt parties because

of secret nature of dealings. The investigation agencies have to act in a different way

considering the peculiarity of the instances. The investigating agencies, thus, arrange

for traps to take hold of such persons. Some persons are arranged to approach corrupt

public servants. The corrupt persons are trapped red-handed while receiving money

from such persons. These are the practical methods to trap corrupt public servants, but

there is no mechanism or procedure provided under the Act in this regard. It resulted

into rejection of evidences on technical grounds resulting into acquittal of the accused

public servant. So there must be a proper mechanism secured by the provisions of the

Act to accomplish the real object of the legislation.

5.4.13. NO CLEAR PROVISIONS ABOUT ATTACHMENT OF PROPERTY

We can easily observe that there are no clear provisions within the Prevention

of Corruption Act, 1988 providing for the attachment of the property of accused or

convicted person. It is clear from the nature of the offences that acts of bribery or

corruption are committed for the purpose of attaining material gains. These are one of

the main offences of the category White Collar crimes. The corrupt people have no

fear of punishment because of high amount of monetary or property gain. They do not

mind going behind the bars for some years if their ill-gotten wealth is safe with them.

The fear of losing property will act like a deterrent for them to commit bribery and

corruption. Hence there must be specific provisions within the Prevention of

Corruption Act to attach property of the accused persons.

In addition, there must also be provisions regarding attachment of the property

of the persons related to the accused because they tend to transfer their ill-gotten

property to their relatives or agents to camouflage their transactions from the eyes of

law. Moreover, their personal property shall also be attached and made available for

compensating the loss made to the nation by the corrupt practices. Since now, the

property of the wrongdoers is attached by the order of the Court through other

legislation e.g. the Criminal Law Amendment Ordinance, 1944. Now, the Lokpal and

313

Lokayuktas Act, 2013 (1 of 2014) has introduced various significant provisions470

for

the attachment of property obtained through corrupt means.

5.4.14. NO PROTECTION FOR WHISTLEBLOWERS WITHIN THE ACT

A thorough study of the Act is sufficient to explain that there is no provision

within the Act giving protection to the whistleblowers. To make an effective anti-

corruption legislation, there is urgent need of introducing such provisions. Without

protecting whistleblowers and witnesses we cannot expect the fulfillment of the

objectives of the Act. The people involved into corrupt practices are generally very

powerful and people do not want to come forward to give statements against them

about the alleged crimes. Absence of such protection to the whistleblowers or other

witnesses results into non production of evidences which consequently results into

acquittal of the accused. High acquittal rate of persons accused of having crimes

related to corruption is a cause of concern and necessary safeguards are needed in this

direction. Such protection was available to the whistleblowers even during ancient

times as we have discussed in Chapter-II. But it took us hundreds of years to

reincorporate those provisions within our anti-corruption legislation which is very

disheartening. We have just enacted Whistleblowers‘ Protection Act, 2011 in May

2014 and until then there was no such protection available to them within the Act or in

any other legislation.

5.4.15. POLICY MATTERS ARE OUTSIDE THE SCOPE OF THE ACT

As we have observed, the prevention of Corruption Act, 1988 punishes the acts

declared to be culpable under various provisions of the Act. The acts of giving,

offering, receiving, demanding bribery are made punishable. There are no provisions

under the Act which can scrutinize the policy making process. In our country,

corruption is committed not only by the pervert acts of public servants but also by

making policies as well. Policies are made which are best suited for industrialists and

businessmen. The common man does not get even little consideration in this context.

These policies are intended to give sufficient profit to the big businessmen as there is

470 The Lokpal and Lokayuktas Act, 2013 (1 of 2014), ss. 29-31.

314

collusion between public servants holding high position in government and them.

These policies fall within the executive domain and are not scrutinize by the Courts

generally. All this has resulted into undue favour to big businessmen. We have

observed that there have been various policy flaws e.g. Coal-block Allocation, 2-G

Spectrum etc. where natural resources of immeasurable wealth were allocated to the

near and dear ones. There have been various such instances since from the

independence. Not only this, these bad decisions or policy flaws exist at lower level of

administration as well. We can generally see that the roads which are in adequately

good condition are made again by giving tender to the persons close to the decision

maker or policy maker. It is an ironic situation and the provisions shall be

incorporated within the Prevention of Corruption Act to deal with such situations of

bad decisions or policy flaws.

5.4.16. APPOINTMENT OF LOKPAL IS PENDING

The introduction of the Lokpal and Lokayuktas Act, 2013 (No. 1 of 2014) has

brought considerable changes into the Prevention of Corruption Act, 1988. It has

introduced new procedure to carry out investigation of the offences of corruption and

bribery. Earlier there were provisions within the Act providing for the investigation of

such offences. Now there are Director of Prosecution and Director of Inquiry in this

context. But the real problem is that there has been no appointment of Lokpal because

of several reasons. A bill seeking amendments into the provisions of the Lokpal and

Lokayuktas Act, 2013 is pending in the Parliament. A search committee responsible

for giving assistance in selecting chairperson and other members for the Lokpal will

be constituted after the passing of this bill by the Parliament. A parliamentary

committee is examining the Lokpal and Lokayuktas and Other Related Law

(Amendment) Bill, 2014, which was introduced in Lok Sabha on December 8 last

year471

. It was also cleared that the appointment of chairperson and members of

Lokpal will happen soon after a report is received from a Parliamentary Committee

471 ―Search committee to be constituted after amendment in Lokpal Bill‖, Available

at:http://www.dnaindia.com/india/report-search-committee-to-be-constituted-after-amendment-in-

lokpal-bill-2057924 (visited on June 1, 2016).

315

which is examining certain amendments in the anti-corruption law472

. This

shortcoming is because of a practical problem which is of temporary nature. We are

hopeful of getting adequate solutions to this problem by the government and

legislature. Only after that we can be able to discuss the merits or demerits of these

amendments made into the anti-corruption laws.

472 Supra note 431.