This is the second and final part of a series on bribery. The first part examined a variety of scenarios wherein Indian laws can be seen to be protecting and promoting bribery and corruption. You can read it here.

In March 2011, Kaushik  Basu, then chief economic advisor to the Government of India, penned a seminal paper. It is a document any concerned citizen should read. The document is important because it makes a very strong case for legalising the giving of bribes “for a class of bribes”.

The paper puts forward a small but novel idea of “how we can cut down the incidence of bribery. There are different kinds of bribes and what this paper is concerned with are bribes that people often have to give to procure things to which they are legally entitled. I shall call these harassment bribes.

Representational image. Reuters

“Suppose an income tax refund is held back from a taxpayer till he pays some cash to the officer. Suppose government allots subsidised land to a person but when the person goes to get her paperwork done and receive documents for this land, she is asked to pay a hefty bribe. These are all illustrations of harassment bribes.”

Basu makes a case that “the giver of a harassment bribe should have full immunity from any punitive action by the state”.

Basu points out that in almost all cases of (harassment) bribe-giving, “it is in the interest of the bribe-giver to have the bribe-taker caught. Since the bribe-giver will cooperate with the law, the chances are much higher of the bribe-taker getting caught. In fact, it will be in the interest of the bribe-giver to have the taker get caught, since that way the bribe-giver can get back the money he gave as bribe. Since the bribe-taker knows this, he will be much less inclined to take the bribe in the first place. This establishes that there will be a drop in the incidence of bribery.”

Thus, under the new law, every bribe-giver will try and keep some evidence — a witness, a voice recording, a photograph, a video — of the bribe being handed over. Once the work is done, the bribe-giver will then approach the authorities and seek redressal. He hopes for two things. First, to get some of his money back. Second, to penalise the person who demeaned him to a position of paying money to get something that was rightfully his.

At present, all incidents of bribery are covered by a 1988 legislation called the Prevention of Corruption Act, 1988. According to this law (Section 12), both the giver and the taker of bribe are guilty. Both, upon conviction, can be imprisoned for six months to five years. They may also be liable to pay a fine. A reason why the giving of bribes is considered a crime is that many lawyers believe that giving of a bribe is abetting the crime of bribery.

There is a small loophole for the bribe-giver.

Section 24 of the Prevention of Corruption Act 1988 allows for a “a statement made by a person in any proceeding against a public servant . . . . . that he offered or agreed to offer any gratification (other than legal remuneration) or any valuable thing to the public servant . . . . . (in that case, the bribe giver shall not be subjected to prosecution). ”

Unfortunately, the courts have muddied this intent. In a judgement of 2008 (Bhupinder Singh Patel versus CBI, 2008 (3) CCR 247 at p. 261 (Del): 2008 Cri LJ 4396) the court ruled that this ‘amnesty’ to the bribe-giver could be availed of only in cases where the bribe-giver could establish that the bribe was given unwillingly, or given in order to trap the government officer. But establishing this is difficult. And the moment you try to say that you wanted to trap the official, legal clauses relating to entrapment get invoked.

Remember how the case of “cash for votes” indicting Amar Singh took a bizarre turn a few years ago?  All the people who arranged to pay money to legislators for voting against the government were instead locked up under charges of entrapment.  The court did not pronounce a verdict.  The suspicion is that there was a private settlement.  Amar Singh was let off on “health grounds” and the people charged with  ‘entrapment’ were eventually released.

Since the courts are now beginning to take a fresh look at governance — it has ruled against discretionary giving away of public property, wireless bandwidth (remember 2G?), coal, minerals etc — there is a need to give Section 24 of the Prevention of Corruption Act 1988 more teeth.

Any citizen who feels that he is being harassed should be permitted to take shelter under this clause.

Only then will the incidence of bribe-taking reduce.

But many legislators who are believed to be big beneficiaries of bribes — along with some bureaucrats and court officials as well — are unlikely to push for a change in this law.  That is where non-government organisations (NGOs), public minded citizens and good lawyers will have a role to play.

The present bribery laws are a farce.

They actually encourage and nurture bribery.  They do not prevent such incidents. A change in law could benefit common citizens.  It would also prevent defence deals from being scuttled just because someone does not want to push the bribe-taker.