When Repeal Comes In Disguise Of An Amendment
In 1985 the Supreme Court upheld the right of a divorced Muslim woman to seek maintenance from her former husband in the much famous Shah Bano case. The Parliament, under the leadership of then Prime Minister Rajiv Gandhi, quickly responded to take away this minimal right by enacting a law which was ironically christened ‘Muslim Women (Protection of Rights on Divorce) Act, 1986’. The Prevention of Corruption (Amendment) Act, 2018, which has been notified last month after receiving presidential assent, presents an irony of similar proportions.
Criminal misconduct redefined:
The original statute defined criminal misconduct as the act of a public servant extending illegal pecuniary advantage to any person by abusing his official position. There was no stipulation that the official concerned should have drawn any undue advantage for himself in the transaction. The fact of violation of procedure to extend illegal pecuniary benefit to someone was sufficient to invite the charge of abuse of office. This provision, contained in section 13(1) (d), has been entirely reworked to limit criminal misconduct to acts involving misappropriation of property by public officials. In other words, unless there is evidence to show that a public official has been personally advantaged by an illegal action no crime is made out under the Act howsoever large may be the degree of illegality committed.
The abuse of office has, therefore, been entirely decriminalized in the amended Act. Given the fact that almost all of the big-ticket corruption cases are of the nature of undue favours to a businessman or middlemen by politicians and high ranking public officials, the amended Act is bound to eradicate corruption at these levels- at least theoretically: by legalizing it.
Consider, for example, any of the high-value corruption cases of the recent past. The coal blocks case, the NRHM scam, the Vyapam case, the Bihar fodder scam, the Haryana teachers recruitment scam, the PNB case, the Noida land allotment case or the illegal mining cases of Karnataka. In none of these cases, there is any allegation or evidence that the accused public servants took any personal advantage out of the irregularities committed by them. The trials in fodder, coal, Noida and Haryana cases have actually ended up in the conviction of senior public servants with prolonged imprisonment terms. All of the convictions are based on the fact that the public officials violated the prescribed rules and procedures and granted illegal benefits to individuals. Personal enrichment of the public servants was not the necessary ingredient of offence in any of these cases.
Under the amended Act none of the actions for which convictions have been awarded will qualify as an offence. To this degree, the amended Act will have the effect of excluding the entire segment of high-value political corruption from the purview of the Anti Corruption laws.
Prior permission provisions:
Another extraordinary feature of the amendment is that it reintroduces the controversial ‘single directive’ after being struck down twice by the Apex Court. The initial single directive was in the form of a memorandum by the Home Ministry that prohibited any inquiry or investigation by the CBI in respect of any officer of the rank of joint secretary or above without the sanction of the Central Government. This directive was struck down by the Supreme Court in 1997 in Vineet Narain case holding it violative of equality clauses of the Constitution. Undeterred, the NDA government reintroduced it in 2003, albeit through the legislative route, by amending the Delhi Special Police Establishment Act.
Section 6A was, therefore, introduced with the same formulation. Dr. Subramanian Swamy, then heading the Janata Party, moved to the Supreme Court against this clause and got it is struck down in a 2014 Constitution Bench judgment titled as Dr. Subramanian Swamy vs Director CBI. The Court held section 6A unconstitutional on the ground of unreasonable classification and being contrary to settled principles of criminal law. The Constitution Bench held that prior permission clauses were opposed to the foundational concept of criminal law that the police was bound to investigate every crime brought to its notice without requiring any permission to investigate. In the words of the court:
“The essence of police investigation is skilful inquiry and collection of material and evidence in a manner by which the potential culpable individuals are not forewarned. The previous approval from the Government necessarily required under Section 6-A would result in indirectly putting to notice the officers to be investigated before the commencement of the investigation. Moreover, if the CBI is not even allowed to verify complaints by preliminary enquiry, how can the case move forward? A preliminary enquiry is intended to ascertain whether a prima facie case for investigation is made out or not. If CBI is prevented from holding a preliminary enquiry, at the very threshold, a fetter is put to enable the CBI to gather relevant material. As a matter of fact, the CBI is not able to collect the material even to move the Government for the purpose of obtaining previous approval from the Central Government.”
Surprisingly the Amendment Act reintroduces the prior permission clause with much wider amplitude. While the original section 6A required a prior permission for ‘inquiry or investigation’ in respect of senior officials; the amended statute requires a prior permission for any ‘enquiry, inquiry or investigation’ for public servants of all varieties. The amended Act, thus, bars even an informal cross-checking of facts -an enquiry- necessary for deciding whether there is a case to conduct a proper inquiry or investigation. This leads one to an impossible situation. If no cross-checking of facts is allowed in the first place, on what basis can an investigation agency approach the government for a permission to cause an investigation?
One of the laudatory initiatives in the amended Act is defining bribe-giving as a distinct offence. This is not to say that giving bribes was not an offence in the original Act. In fact, giver of the bribe was prosecuted for abetment of the crime of receiving bribes by the concerned public servant as per the scheme of the original Act. With the amended Act in place the bribe giver and the public servant can be prosecuted and punished for distinct offences.
The exception to this is the situation where the bribe giver is coerced to part with the bribe. In such cases he can complain to the concerned agencies within seven days of the incident to claim immunity. This aspect may be problematic in surveillance based trap cases where both the bribe giver and the receiver are arrested on the spot at the time of the transaction. As per the scheme of section 8, the offence of bribery against the giver is complete only after seventh day of parting with the bribe if he does not report the same. At the time of delivery of bribe no offence is, therefore, made qua the giver. The CBI is sure to face enormous legal hurdles in dealing with surveillance based trap cases in the regime of the amended law.
Impact on Lokpal and Lokayuktas Act:
The Lokpal and Lokayuktas Act was enacted in 2014 after much furore from the civil society towards the need of an independent anti-graft body. Although the law is in place for the last four years, the institution hasn't been operational in the absence of appointments and other procedural frameworks. Under the Act, the Lokpal is empowered to order inquiry or investigation by its inquiry wing or by the CBI into complaints of corruption against public servants. The prior permission clauses in the amended PC Act do not expressly modify such provisions but will surely limit Lokpal’s powers to order CBI investigation into complaints of corruption.
Moreover, with the newly enacted definition of corruption being limited to undue enrichment, bribe or disproportionate assets, the entire segment of big-ticket corruption involving favoritism, willful violation of laid down procedures and breach of norms in decision making will fall outside the purview of Lokpal. This being the case, the institution of Lokpal, as and when operationalised, is likely to remain another paper tiger.
Impact on Prevention of Money Laundering Act:
The offences under the Prevention of Corruption Act qualify as predicate offences for the purpose of PMLA. This means in all cases of corruption where FIR is registered by the respective agencies a consequent investigation can be taken up by the Enforcement Directorate in respect of proceeds of crime. Such proceeds of crime can be confiscated during the investigation besides prosecution of the accused for a distinct offence of money laundering. With the watered-down definition of offence under the PCA the impact on corruption linked money laundering cases is going to be huge.
Law Commission’s stand:
The most surprising part of the entire episode is the silence of the Law Commission on this quasi-repeal. It is not the case that the matter wasn't referred to the Law Commission at all. In fact, the Amendment Bill of 2013, which contained the blueprint for all these amendments, was referred to the Law Commission by the UPA government. In response, the Commission submitted its 254th report in 2015 on the proposed amendments.
Surprisingly other than recommending criminalization of private bribery, the Commission actually agreed with the ‘prior permission’ clauses and decriminalization of ‘abuse of office’ with minor modifications.
Our commitments in the UN convention:
India is a signatory to the United Nations Convention Against Corruption (UNCAC). The original Act was introduced in 1988 by repealing the earlier 1947 statute to incorporate our commitments in the UNCAC. It was expected to have provisions criminalizing private bribery in the amendments. The amended Act disappoints on this is score too. That apart, the decriminalization of abuse of office is also contrary to what we agreed to in the UN convention.
To sum up, the amended Prevention of Corruption Act is a major setback to all that has been done to strengthen the anti-corruption framework in the past. The CBI, which earned the sobriquet of being a ‘caged parrot’, is likely to find itself a ‘flightless parrot’ in the coming days. That apart, the very nomenclature of statute - The Prevention of Corruption Act- is itself rendered ironical if not satirical.
The author is a Ph.D. (Law) scholar at the Indian Law Institute.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]