OpEd – Layers of protection on changes in anti-corruption law

OpEd - Layers of protection on changes in anti-corruption law

Issue :-

  • The amendments to the Prevention of Corruption Act, 1988, adopted recently by both Houses of Parliament.

Background :-

Moves to make changes in this law, aimed at combating corruption in government, were initiated during the UPA’s second term in office and largely centred on the misuse of one provision — Section 13 (1)d. which states that Criminal misconduct by a public servant if he —

  • (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage
  • (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage
  • (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

 

Criticism :-

  • Former Prime Minister Manmohan Singh had criticised this section, under which public servants are culpable for securing a pecuniary advantage for another “without any public interest”, for ignoring a foundational principle of criminal law: mens rea.
  • Due to this many honest officials being prosecuted even when they gained nothing and merely exercised their power or discretion in favour of someone.

PCA Amendments 2018 done to PCA, 1988 :-

  • It is more concise and restricts criminal misconduct to two offences :- misappropriating or converting to one’s own use property entrusted to a public servant or is in his control, and amassing unexplained wealth.
  • By making citizens liable for offering a bribe to a public servant, the anti-corruption law has been brought in line with the UN Convention Against Corruption. The only exception to this rule is when one is forced to give a bribe. This exception kicks in only when the fact that one was forced to pay a bribe is reported to a law enforcement authority within seven days.

Criticism of PCA 2018 Bill :-

  • Introduction of a prior approval norm to start an investigation though a prior sanction requirement exists in law for prosecution, it is incomprehensible that the legislature should create another layer of protection in the initial stage of a probe.

What Legislative measured do we need to protect Public Servants ?

  • Penal provisions
  • Create an ombudsman in the form of a Lokpal or Lokayukta
  • Assure citizens of time-bound services and whistle-blower protection.

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