Report No. 179

Chapter III

Eradication of Corruption and whistle Blowing

In this Chapter, we shall deal with methods of punishing corrupt public servants and the means available for obtaining information regarding corruption and the need for whistle blowers.

(A) Methods employed for taking action against corrupt public servants:

(a) Departmental actio.- One of the methods for arresting corruption is by way of initiation of departmental proceedings under the disciplinary rules. There are rules made by the Central Government as well as State Governments and Public Sector Undertakings to conduct preliminary enquiries and then if a prima facie case is made out, to frame charges and to conduct a regular enquiry observing principles of natural justice and then to pass orders of punishments including dismissal, removal, compulsory retirement and so on.

(b) Criminal Prosecution under the Prevention of Corruption Act, 1988 read with relevant provisions of the Indian Penal Code, 186.- Apart from departmental action, the other method is for the employer to take action against the public servant under the provisions of the Prevention of Corruption Act, 1988 read with relevant provisions of the Indian Penal Code (Act 45 of 1860). The Prevention of Corruption Act contains elaborate procedure for prosecution of corrupt public servants.

(c) Confiscation of properties illegally acquired by corrupt means.- The Law Commission in its 167th Report suggested enactment of a law for forfeiture of property of Corrupt Public Servants and a 25 Bill titled 'The Corrupt Public Servants (Forfeiture of Property)' is annexed with the report. The report is pending consideration by the Government from Feb. 1999. Sub-section (1) of the relevant provision states that as from the date of the commencement of the Act, it shall not be lawful for any person to whom the Act applied, to hold any illegally acquired property either by himself or through any other person on his behalf. The relevant provision of the Bill further provides as follows:

"where any person holds any illegally acquired property in contravention of the provisions of sub-section (1), such property shall be liable to be forfeited to the Central Government in accordance with the provisions of the Act".

The provisions of the proposed Act regarding confiscation are in addition to the provision relating to conviction for a minimum period of seven years, which may extend upto fourteen years. The provisions of the proposed Act apply not only to the public servant but also to every person who is a "relative" of the public servant or an "associate" of such person or the holder of any property which was at any time previously held by the public servant, unless such holder proves that he was a transferee in good faith for adequate 26 consideration.

The provisions also apply to any person who has deposited any amount or other moveable properties in any bank or any other concern outside the territory of India, or has acquired any properties outside the territory of India without the requisite permission of the appropriate authority. The proposed Act also contains the definition of 'relative' referring to various relations of the public servant and also a definition of 'associate' referring to various types of persons associated with the public servant.

The Bill making the above provisions has not yet become law. Once it becomes law, there is no doubt, it will substantially put an end to corruption.

(d ) Benami Transactions (Prohibition) Act, 1988 and acquisition of held benami properties:-The Act was the result of the 57th report and the 130th report of the Law Commission and precludes the person who acquired the property in the name of another person from claiming it as his own. Section 3 of the Act prohibits `Benami transactions' while section 4 prohibits the acquirer from recovering the property from the benamidar.

Section 5 of the Act is important and permits acquisition of property held benami. It states;

"(1) All properties held benami shall be subject to acquisition by such authority, in such manner and after following such procedure as may be prescribed.

(2) For the removal of doubts, it is hereby declared that no amount shall be payable for the acquisition of any property under subsection (1)".

Unfortunately, in the last more than 13 years, rules have not been prescribed by the government for the purposes of sub-section (1) of section, 5 and the result is that it has not been possible for the government to confiscate properties acquired by the real owner in the name of his benamidars.

(e) Public Interest Litigation; judiciary enforcing rule of law "Vineet Narain" cases :- One of the methods by which inaction or delay on the part of the concerned departments or police agencies is sought to be remedied is by resorting to public interest litigation in the High Courts or in the Supreme Court. . The scope of such public interest cases has been laid down by the Supreme court of India in a series of cases, entitled Vineet Narain v. Union 28 of India :- 1996 (2) Scale (SP) 42, 1996 (2) SCC 199, 1997(4) SCC. 778, 1998(1) SCC 226, 1998 (8) SCC. 661.

In these judgments, the Supreme Court has directed the Central Bureau of Investigation and the Revenue authorities to fairly and properly conduct and complete the investigation expeditiously against every person involved, irrespective of position and status. The Supreme Court observed that it is the bounden duty of the judiciary to enforce the rule of law and to see that investigation into corruption "is conducted in accordance with law and is not scuttled by anybody". (see 1998 (1) SCC 226)

The Court observed:-

"the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly investigated and the offender against whom a primafacie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. 29 It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law".

Adverting to exposure of corruption by the media and public interest litigation, the court observed:-

"The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. It also has adverse effect on foreign investment and funding from the International Monetary Fund and the World Bank who have warned that future aid to under developed countries may be subject to the requisite steps being taken to eradicate corruption, which prevents International aid from reaching those for whom it is meant. Increasing corruption has lead to investigative journalism which is of value to a free society. The need to highlight corruption in public life through the medium of public interest litigation invoking judicial review may be frequent in India but is not unknown in other countries".

(e) The Lok Pal Bill, 2001.- One other law which has been envisaged over a long period for eradication of corruption is the 'Lok Pal and Lok Ayukt Bill'. The first draft of the Bill was prepared by the 30 Morarji Desai Committee in 1968, the Bill was introduced in Parliament but was not passed on account of the dissolution of the then Lok Sabha. Thereafter, we have had number of draft Bills in the last 32 years namely in 1971, 1977, 1983, 1989, 1996, 1998, 2000 and the latest in the year 2001. We shall revert back to these bills in Chapter 7.