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Corruption in India: Existing Laws and Provisions in India to tackle Corruption

(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.

CONCLUSION

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. Corruption is still one of the biggest impediments to extending the benefits of development and progress to the poorest of the poor. The Indian criminal justice system is facing many problems and challenges in its fight against corruption. At present, there is no law to deal with corruption in the private sector, which has grown in leaps and bounds in last two decades, as envisaged in the UNCAC. 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. Furthermore, fighting corruption requires more than government policy, laws, tools and legal system; it requires awareness of our social responsibility, moral values, excellence in our daily work, etc. We need role models, campaigns, debates, and many different approaches to educate our people, to inspire our young generations, to change the mindset of corrupt people and to tackle with every cause. Moreover it need willingness, commitment and active participation of media, civic associations, voluntary groups, teachers, students, social workers, etc. 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.

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