What is Corruption ?
The U. N. Convention against Corruption (adopted 9 December 2003, entered into force 14 December 2005) GA Res 58/4 defines ‘Corruption is an insidious plague that has a wide range of corrosive effects on societies.
It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organised crime, terrorism and other threats to human security to flourish’. In spite of its prominence through the ages, corruption remains difficult to define.
A multifaceted concept, there is no universally accepted definition of ‘corruption’ and there has been disagreement as to what specific acts constitute corruption as a construct.
As per the Transparency International (TI); Corruption is operationally defined as the misuse of entrusted power for private gain or the use of public office for private gain. In other words, use of official position, rank or status by an office bearer for his/her own personal benefit.
Therefore the corrupt behaviour would include, bribery, fraud, stealing the public resources, partialit/favouritism, seizure of public assets for private use, etc. Transparency International (TI) further differentiates between “according to rule” corruption and “against the rule” corruption. Facilitation payments, where a bribe is paid to receive preferential treatment for something that the bribe receiver is required to do by law, constitute the former. The latter, on the other hand, is a bribe paid to obtain service. India is amongst the most corrupt countries of the world with a score of only 3.4 out of 10. It ranks 84th amongst 180 countries (Corruption Perceptions Index 2009, India is worse than many countries in Asia and Africa such as Botswana, Ghana, Namibia, Taiwan, Korea, Bhutan, and China. In the world competitiveness scoreboard, which is the assessment of several factors, e.g. Government system, Business efficiency, infrastructure, etc., it is dragging only at 31st position.
Main cause of corruption
Although there are many causes of corruption but based upon several research, surveys and studies, the following are most common causes in most of the governments and societies:
– Lack of rules, regulations, transparency and accountability in public sectors.
– Lack of control, supervision and auditing.
– Lack of articulated Code of Conduct for public servants and politicians.
– Attitudes or circumstances that make average people disregard the law.
– The change in the value system and ethical qualities of people. The moral and ethics have declined and most people give more importance to money than excellence.
– Bribe may provide a convenient means of getting work done or avoid any punishment.
– Bad incentives, such as any employee not earning enough to live on; so he supplements his income with bribes.
– Tolerance of people towards corruption.
– Absence of strong public forum or civil society to oppose corruption, etc.
LAWS AND PROVISIONS IN INDIA TO TACKLE CORRUPTION
(i) The Prevention of Corruption Act, 1988 The Prevention of Corruption Act 1988 (hereinafter referred to as “the Corruption Act”) was enacted to consolidate different anti-corruption provisions from various pieces of legislation under one umbrella and to make them more effective. The Corruption Act, inter alia, widened the scope of the definition of a “public servant”; enhanced penalties provided for offences in earlier laws; incorporated the provisions of freezing of suspected property during trial; mandated trial on a day-to-day basis, prohibited the grant of stay on trial; etc. The Corruption Act is the main law for dealing with offences pertaining to corruption in India, however many avenues of corruption cannot be dealt with under the Prevention of Corruption Act, 1988.
(ii) India and the United Nations Convention against Corruption 2003 (UNCAC)India has welcomed the UNCAC, which provides for international co-operation and mutual legal assistance in investigating cases of corruption and recovery of assets. India signed the UNCAC in December 2005. By signing the Convention India has reiterated its resolve to strengthen international co-operation as envisaged in the Convention. It is in the process of enactment of requisite enabling legislations by the concerned Ministries or Departments before ratifiying the Convention. Once ratified, the Convention will boost India’s effort and commitment to fight corruption at both domestic and international level.
(iii) The Prevention of Money Laundering Act 2002 (Article 23 of the UNCAC)Many public servants are able to hold their ill-gotten wealth in foreign countries, which they subsequently transfer to their homeland through money laundering, disguising them as funds, apparently from a legal source. This Act empowers the Directorate of Enforcement, India, and Financial Intelligence Unit, India, both agencies of the Government of India, to investigate and prosecute such persons under the said Act.
(iv) The Foreign Exchange Management Act 1999
Middlemen or touts, who take huge commissions for brokering deals pertaining to purchases from foreign suppliers, often transfer such money in foreign currencies, claiming it to be the proceeds of some business abroad. This Act empowers the Directorate of Enforcement, India to investigate and prosecute such persons under the said act.
(v) The Right to Information Act 2005
It is a well-known fact that too much secrecy in public administration breeds corruption. The Right to Information Act aims at ensuring efficiency, transparency and accountability in public life. This Act requires all public authorities, except the ones that handle work relating to national security, to publish all information about their functioning at regular intervals through various means of communication, including the Internet. Now any person can seek any information from the concerned public authority just by filing an application at almost at no cost. The public authority has to reply to the application compulsorily within 30 days. If the information sought is denied, the applicant has a right to agitate further before the appellate authorities under this Act. This can indeed be described as a revolutionary step towards the eradication of corruption from public life.
(vi) India and the United Nations Convention against Corruption 2003 (UNCAC)
India has welcomed the UNCAC, which provides for international co-operation and mutual legal assistance in investigating cases of corruption and recovery of assets. India signed the UNCAC in December 2005. By signing the Convention India has reiterated its resolve to strengthen international co-operation as envisaged in the Convention. It is in the process of enactment of requisite enabling legislations by the concerned Ministries or Departments before ratifiying the Convention. Once ratified, the Convention will boost India’s effort and commitment to fight corruption at both domestic and international level.
(vii) Cases referred by the Central Vigilance Commission (CVC) and the Chief Vigilance Officers (CVOs) of other Government Departments
The Central Vigilance Commission is a statutory body which monitors corruption in governmental departments. It supervises the work of Chief Vigilance Officers of all the departments of government and issues guidelines to them. The CVC also receives complaints from the general public about corruption. It refers such complaints to the CBI for verification and investigation if found to contain verifiable allegations. The CVOs are in-house supervisors of government departments who monitor the conduct of personnel and enquire into complaints against them pertaining to corruption. If upon enquiry they conclude that a criminal case under the Corruption Act appears to have been made out, they refer the case to the CBI for investigation.
(viii) Use of Telephonic/Electronic Surveillance
The legal provisions relating to telephonic or electronic surveillance under the Indian Telegraph Act 1885 are effectively used by the CBI to gather accurate information about corrupt activities of the public servants. After ascertaining details about various phone numbers and email identifications used by the public servant, permission of the competent authority is taken to put the same under surveillance. Information gathered during such surveillance has been successfully used in exposing big scams.
(ix) Freezing, Seizure and Confiscation of Properties – The Criminal Law (Amendment) Ordinance, 1944 (Article 31 of UNCAC)
This is an important law on freezing, seizure and confiscation of properties which are proceeds of crime, including offences under the Corruption Act. Such properties identified during investigation can be frozen under this law. Properties can remain frozen till disposal of the case by the court after completion of the investigation. If the alleged offence is proved in the court of law and the property is proved to be the proceeds of crime, the court will order its confiscation.
(x) Criminal Procedure Code 1973 together with Mutual Legal Assistance Treaties (MLAT) in Criminal Matters and Extradition Treaties
Sec. 166 A and 166 B of the above code empower the crime investigation agencies of India to make requests to other countries as well as to entertain requests from other countries to render assistance in the investigation of crime registered in the respective countries. Such letters of request are popularly known as Letters Rogatory. Such Letters Rogatory are executed on the basis of Mutual Legal Assistance Treaties and Extradition Treaties India has signed with other countries. To date India has Mutual Legal Assistance Treaties in Criminal Matters with 20 countries and Extradition Treaties with 25 countries. The Mutual Legal Assistance Treaties invariably have a chapter on asset recovery and sharing the same. With other countries, international co-operation is sought on the basis of guarantee of reciprocity.
PROBLEMS AND CHALLENGES
Despite adequate laws to fight corruption in the public sector, it is still one of the biggest menaces Indian society is facing today to tackle corruption prevalent in our society. The Indian criminal justice system has been facing many problems and challenges in its fight against corruption, some of which are highlighted below:-
(a) No Law to tackle Corruption in the Private Sector
The Prevention of Corruption Act 1988 is the existing law in India dealing with offences relating to corruption. This law, however, was essentially enacted to take care of corruption cases in the public sector and by public servants, whereas in fact, there is widespread corruption in the private sector also which seriously hampers the overall growth and development of the country.After the liberalization of the Indian economy in the early 1990s, the private sector has expanded greatly. T he problem of corruption in the private sector is increasing with the expansion of the private sector. Today it has assumed alarming proportions. It has become the single biggest menace to Indian society. Efforts areunderway to enact laws to deal with corruption in the private sector as envisaged in the UNCAC.
(b) Inherent Delays in the Criminal Justice System
The system is painfully slow and punishments are not swift. As explained earlier, sec. 19 of the Corruption Act requires prior permission of the authority competent to remove a public servant from his or her post before launching prosecution against him or her in court. This often delays the launch of a prosecution. Upon receiving reports from the investigating agencies seeking approval for a prosecution, the concerned authorities often take considerable time to grant such permission. Also, permission is sometimes denied onpolitical and other grounds. The Corruption Act provides for trial of corruption cases under the act exclusively by the Special Judges. The number of Special Judges is highly insufficient compared to the number of corruption cases filed in their courts. As a result, these courts are overburdened and there is a large discrepancy in the number of cases disposed by the investigating agencies and the number of cases disposed by the courts, adding to the backlogeach year. During trial of offences, adjournments are often taken or granted on various grounds. Further, the proceedings in the trial court are challenged at various stages by parties filing petitions in the same court as well as in higher courts. Appeals and revisions filed in higher courts against the order of the trial court often take years to be concluded.
(c) Hostile Witnesses
In order to convict a corrupt public servant, the prosecution has to prove its case beyond doubt. This is a strict legal requirement as per the Indian Evidence Act, the general law on evidence in India. There is no exception to this requirement even for corruption cases. Prosecution has to depend heavily on the testimony of witnesses to prove its case beyond doubt. However, witnesses often do not support the prosecution case because of influence, allurement and intimidation from the other side. There is no witness protection scheme, nor are there provisions for quick and effective action against witnesses who become hostile. As a result, witnesses frequently become unco-operative and spoil the prosecution case. Punishments are, therefore, not swift and effective under the Corruption Act and don’t deter corrupt public servants.
(d) Ineffective Asset Recovery
Though there are legal provisions for confiscation and recovery of property acquired as proceeds of crime, such recovery is not easy. Corrupt public servants often acquire properties with the proceeds of crime in the names of their friends, relatives, family members and other acquaintances. Therefore, it is not easy to prove in court that such properties are the proceeds of crime. Such properties are quite often held offshore under strict privacy laws and it is not easy to trace and recover them, especially in the absence of desired international co-operation.
Corruption is found to be one of the most damaging consequences of poor governance and poverty, classified by lack of efficiency, transparency and accountability. Corruption diminishes investment and suppresses economic growth and development and also reduces the effectiveness of public administration. It diverts the public resources towards corrupt politicians and officials and away from the needy and poor people. So, corruption can be considered anti-poor and anti-development. Though there are adequate laws in India to fight corruption, they have been made ineffective. Offenders take advantage of the very strict requirements of Indian courts to prove every point beyond doubt. The system suffers from inherent delays; as a result punishment is not swift.
Corruption is considered a ‘high profit-low risk’ activity by corrupt public servants. Recoveries of assets, which are proceeds of crime, remain a big challenge. Such assets are often held offshore and getting them back is a Herculean task, especially in the absence of desired international co-operation. Many people think that only government has responsibility for eliminating corruption and we often blame the government; however in view of the level of corruption and the existing framework that we have in India, it is very clear that government alone cannot stop corruption. Civil society institutions too have a responsibility and duty to fight against corruption and take some actions to promote honesty and integrity.
In addition to the ongoing initiatives such as Citizens’ Charters, RTI Act, social audit, e-governance, lokayukta, etc., which needs some improvement and harmonized approach across all states? The central government is considering the introduction of a new “Lok Pal Bill” to put in place a mechanism to tackle corruption. Currently, public servants (such as government employees, judges, armed forces, police) can be prosecuted for corruption under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. However, the Code of Criminal Procedure and the Act require the investigating agency (such as CBI) to get prior sanction of the central or state government before it can initiate the prosecution process in a court. The ‘Lok Pal Bill’ was introduced for the first time in 1968 but it lapsed with the dissolution of the Lok Sabha. It was introduced seven more times in Parliament, the last time in 2001. However, the Bill lapsed each time except in 1985 when it was withdrawn. At the state level, so far 18 states have created the institution of the Lokayukta through the Lokayukta Acts but loopholes in the “Lokayukta’ Act and the threat of strong punishment for “frivolous” complaints have discouraged people from stepping forward to report corruption and made these institutions helpless.