Corruption in India – laws, organisations, and measures to improve accountability and enhance anti-corruption efforts – PCA, RTI, Lokpal, CVC

Corruption is a form of dishonest or unethical conduct by a person entrusted with a position of authority, often to acquire personal benefit. Excessive and complex regulations, opaque bureaucracy and discretionary powers with inadequate accountability provide ripe environment for corruption.

Several international reports and surveys indicate high degree of corruption in India – in government as well as in the private sector. The Corruption Perceptions Index, published by Transparency International, ranks India at 78th position among 180 countries with a score of 41/100 (2018 data). The index published annually ranks countries by their perceived levels of public sector corruption, as determined by expert assessments and opinion surveys. Denmark and New Zealand are perceived as the least corrupt countries in the world. The Global Corruption Barometer is another such exercise undertaken by Transparency International and is the largest survey tracking public opinion on corruption across the world.

Research suggests that corruption is present across all sectors among all income groups – including top high income groups, implying that low income is not the cause of corruption, rather there is a lack of moral values regarding corruption as bad.

Anti-corruption laws:

The Prevention of Corruption Act, 1988

The Prevention of Corruption Act 1988 was enacted to combat corruption in government organisations. It provides for punishment to public servants, and those who help him, involved in corruption or bribery. The law gives a very broad definition of “a public servant”, covering any authority that is funded by the government or is tasked in execution of a government directive. Crimes punishable under the law include: accepting gifts from a person with whom they have a business or official relationship without paying them, accepting money or gifts to favour a person, etc.

Section 19 of the Prevention of Corruption Act 1988: Courts shall not take cognizance of an offence under this law without govt sanction. This means that, as interpreted by the Supreme Court in 2013, a prior government sanction is required before investigation of a corruption case under this act. Read more about the concept of Prior Sanction.

Right to Information Act, 2005 (RTI)

Under the Right to Information Act 2005, any citizen of India may request information from a ‘public authority‘, which is required to reply expeditiously or within thirty days. The law also established the Central Information Commission (CIC) to look into grievances and to effect the implementation of the law. The CIC has powers of a civil court, and can ask a public authority to appoint a Public Information Officer to provide information to citizens. There is a “national security” exception clause in the law which enables the government to deny any information that can negatively affect the national security.

The term ‘public authority’ includes government as well as non-government bodies controlled or substantially financed by the government. It, however, excludes the following:

  • Political Parties and their offices.
  • Offices of Individual Ministers.
  • Organisations related to national security: Central Bureau of Investigation (CBI), National Investigation Agency (NIA), NATGRID
  • Directorate General of Income Tax Investigation.
  • Supreme Court of India. Office of the Chief Justice of India.

“RTI integral, says Supreme Court but refuses to come under it.” – The Hindu, February 15, 2019.

The Lokpal and Lokayuktas Act, 2013

The Lokpal and Lokayuktas Act 2013 provides for an anti-corruption body and an ombudsman to look into corruption allegations against all current and former public functionaries, including administrators and legislators (including ministers and the Prime Minister), except armed forces. The corruption ombudsman is called Lokpal at the Centre, and Lokayukta at the state-level.

The Lokpal has jurisdiction to inquire into allegations of corruption against anyone who is or has been Prime Minister, a Minister in the Union Government, a Member of the Parliament (MP), officials of the union government (including Group A, B, C, D). It also covers any corporation, society or trust that is wholly or partly financed by the government of India or has received a foreign contribution above Rs 10 lakh. To aid in its inquiries, the Lokpal has been given powers of superintendence and direction over all investigation agencies, including the Central Bureau of Investigation (CBI). It also has the powers to sanction prosecution of a public servant.

The Lokayuktas in the states are appointed under provisions of the respective acts enacted by the states. There is no uniformity across the states in the powers and jurisdiction of the Lokayukta. Some states have not passed a lokayukta law, while others have not passed/amended their law in consonance with the Lokpal and Lokayuktas Act 2013. Maharashtra was the first State to introduce the institution of Lokayukta in 1971, but this Lokayukta was given weak powers; the chief minister is exempted from its purview. Among the States, Karnataka has the most powerful institution of lokayukta.

Appointment: The Lokpal is appointed by the President of India on recommendation of a five member panel comprising of the Prime Minister, the Speaker of Lok Sabha, the Leader of the Opposition, the Chief Justice of India, and an eminent jurist. In March 2019, more than five years after the enactment of the law, Justice Pinaki Chandra Ghosh was appointed as the first Lokpal of India.

Whistleblowers Protection Act, 2014

The Whistleblowers Protection Act 2014 aims to protect whistleblowers – anyone who exposes alleged wrongdoing in government bodies, projects and offices. The law has not been operationalised yet – as no rules as promulgated to operationalise the law.

The Whistleblowers Protection (Amendment) Bill 2015 aims to dilute the 2014 law. It seeks to seeks to remove the clause which ‘safeguards whistleblowers from prosecution under the Official Secrets Act (OSA) 1913 if they make a disclosure under the Whistleblowers Protection Act 2014’.

Official Secrets Act 1913 is a british-era anti-espionage law that provides for upto 14 years of imprisonment. It was enacted to punish those who help an enemy state against India. The law has witnessed instances of abuse, and subsequently its powers have been watered down through several interpretations by the Supreme Court of India.

Laws against black money: Benami Transactions (Prohibition) Act, 1988, Prevention of Money Laundering Act, 2002. See more here: Administrative and Legal Infrastructure to Tackle Black Money.

Anti-corruption bodies:

Directorate General of Income Tax Investigation

The Directorate General of Income Tax Investigation is the law enforcement agency under the Ministry of Finance responsible for investigating violations of tax laws, including fraud, evasion and money laundering.

Central Vigilance Commission (CVC)

CVC is an autonomous body, set up in 1964 on the recommendations of the Santhanam Committee on Prevention of Corruption, and given statutory status by the CVC Act 2003. It coordinates and monitors all vigilance activity under the government. It is also the nodal agency to obtain sanction for prosecution of government employees.

CVC is an advisory body. Government departments are free to accept of reject its advice. It is not an investigative agency, and relies on disclosures by government departments and services of agencies such as CBI for its investigations.

Jurisdiction of CVC is very wide, and includes members of All India Services serving in connection with the affairs of the Union, Group A officers of the Central Government, Officers of rank of scale V and above in the Public Sector Banks, Officers in Grade D and above in RBI, NABARD and SIDBI, Managers and above in General Insurance Companies, etc.

Private sector banks are out of the CVC’s purview, but CVC can still probe private banks in relation to a case involving corruption. This was okayed by the RBI in 2017, following a 2016 ruling by the Supreme Court which said that the chairman, managing directors and other officers could be seen as public servants when it comes to Prevention of Corruption Act 1988.

Central Bureau of Investigation (CBI)

CBI is the premier investigating agency of India, and the nodal agency for inter-state and international cooperation in law enforcement. It was established in 1963, and derives its powers from DSPE (Delhi Special Police Establishment) Act, 1946. It is not a statutory organisation. The Director of CBI has been given a security of two-year tenure by the Central Vigilance Commission Act, 2003.

Prior Sanction in corruption cases:

The Code of Criminal Procedure (CrPC) provides for prior sanction by the state or central government before prosecution of a public official in any court. But in case of corruption cases, the government sanction is required even before the investigation – as per a 2013 SC interpretation of the Prevention of Corruption Act 1988.

Other new measures to enhance accountability:

Jurisdiction free assessment: It is a technology driven interaction that seeks to to minimise nexus between an authority (such as a tax official) and the public (such as local taxpayers) thereby minimising the scope of corruption and discretion.

Social Audit and local participatory governance: It enables people and civil society to audit government programmes. It can have benefits such as grassroots empowerment, feedback driven implementation and course correction of a scheme. However, it can also be abused by locally dominant groups to misappropriate benefits towards their community resulting in inequitable distribution.

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