By Sudhir Deshpande
On this Earth, there is enough for everyone’s need but the prime Act that deals with corruption in India. The investigation is carried out in corruption cases under the Code of Criminal Procedure, 1973. If the case if handled by the CBI then the Delhi Police Establishment Act, 1946 comes into play. However, the scope of PCA also falls short when we hear of newer forms of corruption invented by the corrupt people to remain out of the purview of the PCA. Corrupt officers have become expert by their clever skills and nefarious means, pollute the national fabric and create atmosphere congenial for corruption. This observation by Dr. Aloke Kumar Chakraborty and Dr. Rathin Bandyopadhyay is an eye-opener. Technology will play an important role in India’s fight against corruption. But technology cannot prove to be effective if it occurs in a vacuum, and merely applying technology will not help. Bibek Debroy and Laveesh Bhandari’s technology based approach is no doubt an effective remedy but that may not be the panacea on the malady of corruption. In the past, there was a perception that people would be doing corruption for getting some illegal things done. But today a stage has reached when the citizens have to bribe the public servant even for getting legitimate demand satisfied. Out of the hundred crore people in India, may be five crore are corrupt and 95% are not. have heard cynical people say that the 95 crore people may not have got an opportunity to be corrupt. Once you give them opportunity, they may also become corrupt. Surprisingly, this has come from N. Vitthal, the former Chief Vigilance Commissioner of India. ‘India is amongst the most corrupt countries of the world with a score of only 3.4 out of 10. It ranks 84th amongst 180 countries (Corruption Perceptions Index 2009, India is worse than many countries in Asia and Africa such as Botswana, Ghana, Namibia, Taiwan, Korea, Bhutan, and China’, To prevent corruption, we must design the system so that the right decisions will be taken at every stage and there will be aminimum, if not nil, scope for corruption. An article on says ‘some of the Indians have received income earned abroad and deposited itin the offshore entities to avoid tax. Some have opened a bank account to keep pay-offs in government contracts, or held proceeds of crime or property bought with money made illegally on Trusts/Foundations”. In Niranjan Hemchandra Sashittal v. State of Maharashtra, Hon‘able ~Supreme Court has commented that corruption is not to be judged by The prevention of corruption Act, 1988 (PCA) is not for their greed.”
– M.K. Gandhi
degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance.
Hypothesis:
The present legislation is insufficient to encompass the new & innovative forms of corruption.
Objectives:
- 1. Toidentify new forms of corruption that do not fall under the definition of the PCA; 2. Tostudy the scope of the new forms of corruption; 3. To suggest ways to bring under control the identified new forms of corruption.
Scope:
Present study is limited to the newer forms of corruption in India. The study will have an insight into the rising menace of innovative forms of corruption vis-a-vis the shortcomings of the present legislation.
Methodology:
All the secondary data in the form of topical books, Acts and internet websites have been used.
Statement of the problem:
Researcher of this paper wants to study the new forms of corruption and to suggest the ways to curb those.
Corruption and its new forms:
It is pertinent to note that corruption is not always give and take of hard cash. By now it has assumed various new techniques and innovative modes of transfer of benefits so that it cannot be traced out through the available methods of catching it under the name of prevention of corruption. It is not about petty bribes (‘bakshish’) any more but scams to the tune of thousands of crores that highlight a political/industry nexus which if not checked could have a far reaching impact’. Let us see some newer forms of corruption. .
– Crony Capitalism
The term ‘crony’ connotes close friend. This is a form of economy in which greater profitability in business is achieved through close ‘friendships’ between the LawZ 27 September 2016
————— [: m perception business class and the bureaucracy. Recently a leading newspaper that had filed an RTI reported on the basis of the response, that 29 state-owned banks have written off a total of Rs 1.14 lakh Crore of bad debts of business houses, between the financial years 2013 and 2015.
– Electoral Corruption
In our country hundreds of elections take place in a year right from Grampanchayat level to the Loksabha and Rajyasabha. The criteria for ticket distribution is ‘elective merit’ and after all democracy and elections are ultimately a game of numbers. Right from distribution of utensils to transfer of crores of rupees to the voters is an open secret today. It depends upon the ‘economic size’ of the post for which the election is held. In broader sense of the term this is but corruption. In also includes voter suppression meaning a strategy to influence the outcome of an election by discouraging or preventing people from exercising the right to vote.
– Kickbacks
If bribe is taken prior to doing any official favour, kickback is paid once the official job is done in a favourable manner. Kickback can range from a ticket to a small tour to a huge payment made directly in the Swiss Bank. Such kickbacks are obviously very hard to trace out and equally difficult to trap, for they are ‘sent’ after the ‘performance’ is done and not ‘before’ that. So many defences are available to the culprit to hush up the ill-gotten favours.
– Political Scandals
Political scandal is a kind of political corruption that is exposed and becomes a scandal, in which politicians or government officials are accused of engaging in various illegal, corrupt, or unethical practices. Cash- for-vote is the best example of this form of corruption. Apart from this the political scandals do encompass within then a lot many activities that are carried out by political parties either to gain roots orto annihilate the opposition.
– Regulatory Capture
Regulatory capture is a form of political corruption that happens when a Regulatory Agency, created to act in the public interest, instead advances the commercial or political concerns of special interest groups that dominate the industry or sector it is charged with regulating. Regulatory capture creates an opening through agencies are called “captured agencies”.
– Invisible Hand Corruption
This is a term coined by the researcher to indicate the corruption done by a public servant ‘through’ any subordinate or a private person as ‘acceptor’ of the bribe amount. Such acceptor is protected by his master from the clutches of the law by adopting every possible mean3to weaken the evidence during the trial in criminal Court. In such cases Narco Test must be legally conducted on the acceptors. If the acceptor does not consent to the Narco Test then efforts should be made to make him an approver.
– Present Legal Framework
After having taken a look at the newer forms of corruption let us now see the present legal framework to cope with it. Presently the Prevention of Corruption Act, 1988 is the main & special Act to take care of issues relating to corruption. Let us see what are the penal provisions under the PCA.
The Prevention of Corruption Act, 1988
The Prevention of Corruption Act, 1988 (PCA)
stipulates the following provisions for capturing corruption – Section 7 of the PCA deals with public servant taking gratification other than legal remuneration in respect of an official act. ‘ Technology will play an important role in India’s fight against corruption. But technology cannot prove to be effective if it occurs in a vacuum
Section 8 is about taking gratification, in order, by corrupt or illegal means, to influence public servant. Section 9 is about taking gratification, for exercise of personal influence with public servant, Section 10 provides punishment for abetment by public servant of offences defined in section 8 or 9. Section 11 concerns with public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant. Section 12 provides punishment for abetment of offences defined in section 7 or 11. Section 13 deals with criminal misconduct by a public servant.
The Foreign Exchange Management Act, 1999
Overseas money transfer is generally done through middlemen and such transaction are generally terms as hawala transactions. The agents are called as hawala agents. These hawala agents take commissions for transferring ill-gotten money in foreign currencies, claiming it to be the proceeds of some business abroad. This Act has the authority called Directorate of Enforcement, India which investigates and prosecutes all such principals and their agents under the said act.
Prevention of Money Laundering Act, 2002
This is another Act which takes care of the issue of money laundering. Dictionary meaning of laundering is clean, cleanse, rinse, wring, flush, full, wipe, mop. Section 3 of this Act provides for the offence of money-laundering which says ‘whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untaintod property shall be guilty of offence of money-laundering’. Section 4 provides punishment for money-laundering like this: ‘whoever commits the offence of money- laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine’, The proviso to this Section Now people are paying bribes but not only in cash but in many other invisible forms. Corruption is getting institutionalised day by day india & Corruption says that: ‘provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words “which may extend to seven years”, the words “which may extend to ten years” had been substituted.
Conclusion:
The newer forms of corruption if not contained and curbed shall have their heavy toll on the overall economy of our country. The definition of ‘corruption’ should now be extended to the private entities as well. The Act should be made applicable to the private Corporates too. A huge mass of corruption has remained out of the purview of the PCA because of its narrow definition of corruption and its applicability only to the public servants. If a Personnel Manager demands bribe from an applicant for service, there is no Act at present to trap such ‘private’ individual. It is to be understood that generally whenever any government official is caught red- handed he generally and in most cases happens to be class-three or class-four employee. These higher ups do never come forward to accept bribe.