July 19, 2018
Sukhendu Sekhar Roy speaks on The Prevention of Corruption (Amendment) Bill, 2013
Thank you, Sir. So far this Bill is concerned it was introduced in Rajya Sabha on August 19, 2013 and we are discussing this on the July 19, 2018. So, almost five years have been lost. The previous Government introduced this Bill in a situation when most of the entire country was engulfed in an anarchical situation. So, many people said that the previous Government introduced the Bill in this House under duress. The Bill was rightly forwarded to the Standing Committee, which submitted its report when the new Government took over. Thereafter, the recommendations of the Law Commission were sought for and after that this Bill was again sent to the Select Committee.
So, with this background, I am happy that at least this Bill has got the scrutiny of both the Standing Committee and the Select Committee, which is the normal procedure or practice of the Indian Parliament. All important Bills should be scrutinised by either the Standing Committee or the Select Committee or both.
Now, Sir, referring to the Bill – I am not in a mood to go for a public speech, I am concentrating on this Bill only – in Clause 2, the word ‘gratification’ has not been defined. “Gratification’ has not been defined also in the parent Act of 1988. Here it says in the explanation to Clause 2 (D) that for the purposes of the word ‘gratification’ is not limited to pecuniary gratifications or to gratification estimable in money that is there in the parent law also. If it is not limited to pecuniary gratification, or gratifications estimable in money, then what are the other elements of gratification? That should be spelt out; otherwise in absence of proper definition, the authorities concerned may misuse this provision of the Law. This is my first point.
Sir, the second point, that I would like to refer, in Clause 7 (C). It says that any public servant who performs improperly or dishonestly a public duty in anticipation of or in consequences of accepting an undue advantage from any person, shall be punishable, which shall not be less than three years, but which may extend to seven years, but is also liable to fine. So the minimum (punishment is) three years (and the) maximum (punishment is) seven years, and if necessary fine also (will be imposed). It is in the case of a bribe-taker that has been provided for in Clause 7 (C).
If you look at Clause 8 (1)(I)(i); what will be the punishment in case of the bribe receiver? Here it is said that any person who gives or promises to give an undue advantage to another person, shall be punishable with imprisonment with charge which may extend to seven years or fine or both. Here the minimum term of three years is not applicable. So, the punishment in case of a bribe-giver is up to seven years. In case of the bribe-taker, the minimum punishment is three years. However, what did the DOPT say before the Select Committee? They said that both the bribe-giver and the bribe-receiver are equal partners in the offence of corruption.
This is the version of the DOPT before the Select Committee of Parliament. Therefore, if the bribe-giver and the bribe-receiver are equal partners of the offence, then there should not be any discrimination between the two on the quantum of punishment. Therefore my submission through you to the government, Sir, is that this point should be taken care of and there should not be any discrimination. The same punishment which has been proposed for the bribe-giver, the bribe-receiver should also get the same quantum of punishment. That is my suggestion.
The next point, Sir, is regarding the commercial organisations. Much has been talked about and dealt with by many distinguished colleagues who are in the committee. They suggested so many things and these were incorporated after thorough deliberations that commercial organisations should also have the vicarious liabilities if the offence is committed.
Now Sir, here also in Clause 10 (1), where an offence under Section 9 is committed by a commercial organisation and such offence is proved in the court to have been committed with the consent or connivance of any director, manager, secretary etc, he shall be liable to be prosecuted against and shall be punishable for a term, which shall not be less than three years but which may extend to seven years and also liable to (pay a) fine. So here also, the quantum of punishment is minimum three years, maximum seven years and fine is also included. I’m mentioning all these things because there is discrimination between the bribe-receiver and the bribe-giver.
Now Sir, (I want to make) another point, rather an interesting point of law. Under Clause 18 (A)(1) and Clause 18 (A)(2), this Bill has taken shelter of Criminal Law Amendment Ordinance, 1944, although it is still subsisting, in view of the provisions of the Constitution that I will refer to. In view of Article 372(1) and Article 295 of the Constitution, the Indian Independence Act of 1947 and such ordinances which were passed by the British Government during Emergency period in 1944, that is still subsisting. We have taken refuge to those provisions of ordinances. According to me this is not fair.
And what did CBI say to the Committee with regard to this?
The CBI said and I quote, “With respect to attachment of property, the Director submitted that the Law Commission in its 249th report had recommended to repeal Criminal Law Amendment Ordinance, 1944, being obsolete. He was of the view that the provisions of the Odisha Special Force Act, 2006 and Bihar Special Force Act, 2009 are better suited for the purpose of attachment and forfeiture of property, which has gained currency in USA, UK, Australia, Canada and other European countries.”
So this was the recommendation of the Law Commission which was cited by CBI before the Select Committee, which has not been adhered to by the Government for reasons better known to it. I am of the view that the Government should take note seriously of the suggestions made by the CBI that Criminal Law Amendment Ordinance, 1944, which has become almost obsolete, should not be taken into consideration. Rather, the Odisha Special Force Act, 2006 and Bihar Special Force Act, 2009 should be adhered to.
Now Sir, even before the CVC came before the Select Committee, we raised so many questions and there is no answer so far in this Bill. For example, here it has been stated in this Bill, that the trial should be completed initially within two years, if it is not possible then it can be extended up to four years. It has been suggested in this Bill that it should be extended every six months. The question is if within four years the trial is not completed, then what will be the consequences? Nothing has been said in this Bill.
Should willful default (as rightly pointed out by Shri Anand Sharma Ji and other members) in cases of loans taken from Public Sector Banks be included as offences covered under Prevention of Corruption Act 1988 as the Public money has become NPA by way of bank fraud?
There is a monumental corruption in the PSU Banks and we have seen and witnessed in the recent years what has happened. They are taking money amounting to thousands of crores of rupees and running away from the country and taking shelter in countries with whom we do not have any extradition treaty, so that they cannot be deported to India. So it is a very serious situation. The poor entrepreneurs, who have taken two or three lakh rupees for starting a small scale industry or a small business, are being chased like anything and people who have plundered thousands of crores of rupees, are roaming around and no action can be initiated against them.
The entire government, the entire Opposition, the entire Parliament, the entire judicial system are looking helpless. This situation is not at all warranted. Therefore, those who have taken money from the banks and wilfully defaulted in spite of their ability to repay, must be covered under the Prevention of Corruption Act. This is my demand before this Government.
With these words I conclude. Thank you so much, Sir.