The Bona Fide Bureaucrat-----BY Bibek Debroy
Source : 13.12.2013 Economic Times
There is a Prevention of Corruption (Amendment) Bill 2008. It was introduced and passed in the Lok Sabha in December 2008.It hasn’t been passed by Rajya Sabha. Therefore, it hasn’t yet become legislation. The original Bill had a rather innocuous sounding clause. “In section 13 of the principal Act, in sub-section (1) in clause (d), subclause (iii) shall be omitted”.
In the 2013 version that is pending before Rajya Sabha, we have, “For sub-section (1) of section 13 of the principal Act, the following shall be substituted, namely, (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 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 and, 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.” Serious matters are buried in this legalese.
Corruption is a crime. But there is no absolute definition of “crime”. The Second Administrative Reforms Commission (ARC) had a report, which gives a useful summary of the history of India’s laws against corruption.
In the beginning, there was nothing but the Indian Penal Code (IPC) of 1860 and Sections 161 to 165 dealt with offences by public servants. Sections 169 and 409 of IPC also deal with other offences by public servants. We next had the Prevention of Corruption Act (PCA) of 1947. Other than offences already included under IPC, the 1947 PCA introduced a new kind of offence – criminal misconduct in the discharge of official duty. The Criminal Law Amendment Acts of 1952 and 1964 brought more refinements, as did additional amendments to IPC in 1964.
What is Corruption?
The 1947 PCA, the Criminal Law Amendment Acts and the IPC provisions were consolidated into PCA (Prevention of Corruption Act) 1988, post-Bofors. Lest we forget, Benami Transactions Prevention Act (1988) and Prevention of Money Laundering Act (2002) also apply in a tangential kind of way. Contrary to what one might think, PCA doesn’t actually define corruption, perhaps because it is too difficult to pin down. Indeed, other than in the title of legislation, the word “corruption” isn’t used at all. Instead, we have the expression “criminal misconduct”.
The PCA defines criminal misconduct by a public servant and covers instances of personal gratification, fraudulent misappropriation and abuse of position as a public servant to obtain pecuniary advantage, the mala fide strands. In addition, Section 13(1)(d)(iii) also defines the following as criminal misconduct –”while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest”.
Protect the Honest
Bureaucrats are public servants. Any decision taken by a bureaucrat tends to benefit a third party and ex ante, it is impossible to predict consequences of a decision. “Public interest” is a vague expression and is difficult to pin down. The existence of something like Section 13(1)(d) (iii) makes any public servant risk averse. In legal parlance, there is an expression called “mens rea”. Unfortunately, even now, law, lawyers and judges are very fond of Latin.
Thus, here is the relevant Latin. “Actus non facit reum nisi mens sit rea”. This means that an act is not culpable unless there is a guilty mind that goes along with it. Notice that no such mens rea test is required for Section 13(1)(d)(iii). Some sections of the PCA shift burden of proof to the accused. This creates problems in ensuring culpability of dishonest civil servants and protecting honest ones. Both have been flagged in the 1964 Committee on Prevention of Corruption. I am highlighting the protecting honest bit.
The refrain in Delhi now is that no bureaucrat takes a decision. This is linked to the inability of ministers to cushion bureaucrats from consequences of decisions. The Central Vigilance Commission (CVC) is the primary channel for inquiries under PCA, at least so far as the Union government is concerned. The number of cases referred to CVC from within the government system hasn’t increased much. It used to be a little less than 5,000 in 2008 and is around 5,500 now.
But if you include all complaints received by CVC, the number has shot up from around 10,000 in 2008 to almost 40,000 in 2012. Transparency is welcome, but if you don’t protect the bona fide, decision making will collapse. Let’s also remember bureaucrats who have retired. More than one report of the ARC examined the issues. But other than Supreme Court, the executive and legislature don’t seem to be particularly concerned.