No reason for Bureaucrats to shirk decision-making now

The Prevention of Corruption (Amendment) Bill, 2018 was passed by Lok Sabha on Tuesday, 24th July, 2018, it having been cleared by the Rajya Sabha earlier. The Bill, which was introduced in the Rajya Sabha on 19th August, 2013 during the erstwhile UPA Government, thus inched towards becoming law. Notwithstanding the nearly 5-year tortuous journey, it is still quite surprising that the Bill is finally on verge of being made a part of the statute, given the loud and cacophonous discourse on corruption that started with the Lokpal movement.

It had been argued by many Civil Service bodies, including the Central IAS Association, as well as senior, retired bureaucrats that the Prevention of Corruption Act, 1988 (PC Act) was unhappily worded and that a public servant could be convicted of “criminal misconduct” even when there was no element of any direct or indirect quid pro quo if some pecuniary benefit was shown to have passed on to a third party without “any public interest” [Section 13(1)(d)(iii)]. This not only lead to policy decisions and other bona fide actions being questioned many years, or even decades, later with none but the Investigating Officer to decide as to what was and what was not in public interest. The relevant extract of the existing section is reproduced below for the facility of ready reference:

13. Criminal misconduct by a public servant.—(1) A public servant is said to commit the offence of criminal misconduct,—

(a) ***

(b) ***

(c) ***

(d) if he,—

(i) ***

(ii) ***

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

***

No doubt Section 19 of the existing PC Act, 1988 provided a kind of safety net in terms of the prior sanction for prosecution by the appointing authority of the public servant being mandatory. However, this protection did not extend to a civil servant after retirement, even if the alleged offence took place while he was in active service. Thus, the investigating/ prosecuting agencies could merely wait for an officer to retire and thereafter, the challan could be submitted to Criminal Court after the officer superannuated.

Similarly, under Section 6A of the Delhi Special Police Establishment Act, 1946, the CBI could not initiate either an inquiry (PE=Preliminary Enquiry) or a formal investigation (RC=Regular Case; FIR) against a serving officer of the rank and status of and above a Joint Secretary in the Government of India (JS), without the specific order of the Central Government. However, this was not a mandatory requirement where such an officer had retired.

The Amendment Bill makes it mandatory to obtain sanction of prosecution even in case of retired public servants. Similarly, even if a JS rank officer has retired, the CBI shall not be able to unilaterally commence a PE or register an RC, without the previous approval of the Central Government. This would be a major relief for the retired officers, since there is no limitation whatsoever prescribed under law for taking cognizance of offences under the PC Act, 1988, read with the CrPC.  Adequate safeguards have also been inserted in the statute where the sanction of prosecution is being sought by a private person/ complainant, rather than the investigating agency of the appropriate Government. This shall save a public servant from vexatious prosecution by private persons.

As regards the contentious Section 13(1) of the existing Act, the new one has been substituted as under:

13. Criminal misconduct by a public servant. — (1) A public servant is said to commit the offence of criminal misconduct,—

(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or

(b) if he intentionally enriches himself illicitly during the period of his office.

Explanation 1.—A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office,  been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for

Explanation 2.—For the purpose of this section,”known sources of income” means income received from any lawful source

Thus, after the amendment, it is necessary to demonstrate that the public servant has dishonestly or fraudulently misappropriated property entrusted to him or has allowed any other person to do so. Thus, while the nebulous and draconian provision of the existing section 13 (1)(d)(iii) has been omitted, the onus to protect public property or monies from misappropriation or usurpation by “any other person” remains. Thus a criminally negligent public servant cannot plead that there was no quid pro quo as long as a third person has misappropriated public property under his watch and supervision.

The new Amendment also removes the draconian provisions regarding “disproportionate assets”. Now, “intentional and illicit enrichment” has to be demonstrated and that too while he was in office. Similarly, disproportionate assets must relate to any period during his period in office. This is a major relief for retired officers, in respect of whom the sanction of prosecution was not previously required thus their personal financial affairs could be probed very intrusively long after their superannuation.

By the amendment of Section 20, presumption of wrongdoing has been curtailed. Under the existing Act, when it is proven that a public servant has accepted any advantage for himself or another, then it shall be presumed that he did so in return for the improper performance of his public function. This applies to offences related to taking of a bribe, transactions including business proceedings and criminal intimidation. The Bill changes this provision to include the presumption of wrongdoing for the offence of taking of a bribe only. This is a far more balanced provision of law.

There are many other features of the Bill, notably that of giving a bribe being made a substantive offence; earlier it was only in the nature of an abetment of an offence. Offences relating to bribing of a public servant by a commercial organization have also been made more stringent and an entirely new chapter on “Attachment and Forfeiture of Property” has been introduced.

The proposed amendments are fair, just and equitable. While they are stringent qua the wilful and intentional participants in corruption, whether public servants or private individuals and organizations, they are protective of bona fide actions and decisions of public servant where no quid pro quo, direct or indirect, has been established. The Bill also provides the much-needed relief to retired public servants. When this Bill becomes the law, the bureaucrats would no longer have any reason to blame the PC Act for their own delays and indecision and at the same time, the enforcement agencies would have a more effective framework to go after the offenders who are polluting the socio-economic environment and thwarting good governance. The stage is set for implementing the “Zero Tolerance” agenda towards corruption.

The Author is an IAS officer of 1984 batch of Punjab cadre. The views expressed are his own. He can be reached on kbs.sidhu@gmail.com or @kbssidhu1961 or https://www.facebook.com/kbs.sidhu

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