https://www.moneycontrol.com/news/india/opinion-how-the-new-corruption-law-protects-the-corrupt-and-why-some-bribes-should-be-legal-2802741.html

The government protects bribe takers

The amended law does nothing of this kind. Instead the only amendment it makes is extending the prison term to a maximum of seven years.

RN Bhaskar –  Aug 03, 2018

Parliament’s latest attempt to curb corruption actually creates a law that allows more bribe-taking.  It may not appear to be the case at first, but a closer look shows how deceptive, and disappointing, the Prevention of Corruption (Amendment) Act, 2018 is.

Take the revised law first.  On July 31, the President of India gave his assent to the piece of legislation under which bribe-givers can now be punished with a jail term of a maximum of seven years. The law earlier provided for imprisonment up to five years

The government has decided 26 July, 2018, as the date on which the provisions of the Act shall come into force. The amendments also added that “No police officer shall conduct any enquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval.” But the law also says that such permission shall not be necessary for cases involving on the spot arrest of a person on the charge of accepting or attempting to accept any undue advantage for himself or for any other person.

What the law actually protects

First, on-the-spot convictions of bribery are very rare.  In most cases, the bribe is paid to an intermediary, who could be a lawyer or a shopkeeper.  It will be difficult to show the nexus; the only way it can be established is by first taking recordings of conversations (the voice samples may be disputed in court, or may be held inadmissible as it was done clandestinely, or could be thrown out on grounds of “entrapment”, the grounds on which the cash-for-voters case got scuttled by the courts, and the whistle-blowers were sent to jail instead).

In most cases, the officer just refuses to clear a file till the right amount has been paid.  Cautious officers will ask the money to be paid to a third party.  On confirmation that the stipulated sum has been received, the work gets done.

The file may relate to a matter that is perfectly legal, and no favours are being sought. But without the officer’s approval, the file cannot be cleared.  It may relate to vehicle inspection, or building plan approval or just an income tax assessment. It could be an application for a birth or death or marriage certificate. These demands are always extortionate in nature.  And the only chance that the bribe-giver has of exposing the bribe-taker is by going to the police.

The new law tacitly warns him not to go and complain.  Should he complain that he has given a bribe, he will land in prison first, because bribe-givers can now be imprisoned for a maximum period of seven years.  The result, no bribe-giver will ever dare to register a complaint. Consequently, the new law protects the bribe-taker, because nobody can move against a public servant till permission is obtained from an appropriate authority.

As a result, the bribe-giver will prefer to keep silent; the bribe-taker is emboldened to ask for more money because he may want to share a percentage of the spoils with the intermediary.

What should the solution be?

The government needn’t have looked very far for a solution to the vexatious problem of bribery.  It could have just read the seminal paper prepared by Kaushik Basu, former Chief Economic Advisor to the government of India (http://www.asiaconverge.com/2016/06/how-to-minimise-bribery-in-india/) .

Basu authored the paper in 2011 (http://www.kaushikbasu.org/Act_Giving_Bribe_Legal.pdf) titled “Why, for a Class of Bribes, the Act of Giving a Bribe should be Treated as Legal”.  It is a document that every civic minded person ought to read, and it should be made compulsory reading for legislators whose job is to frame laws. It is a document for our judges as well, because it shows how feel-good laws actually turn out to be some of the most rotten ones. 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,” explains Basu.

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.

Shut up, and pay up

The amended law does nothing of this kind.  Instead the only amendment it makes is extending the prison term to a maximum of seven years.  The earlier law provided for five years.  It was just a waste of legislative time.  It was an attempt to show to people that the government was tightening the laws, when actually it actually makes it more difficult for bribe-givers to come forth and lodge complaints against bribe-takers.

Even in the past bribe-givers did not come forth with evidence.  Now too, there will be few takers for this law.  Moreover, the protection bribe-takers get – of not allowing law officers to proceed against them unless sanction is given by competent authorities – will embolden bribe-takers, unless of course they fall foul of these in power.

Thus the new law ensures two things.  First, it will encourage the bribe-taker to share his booty with those in power.  That will ensure that permission to prosecute will not be forthcoming.  Second, it will give the bribe-taker the comfort that no bribe-giver will dare complain.  The bribe-giver goes to jail rightaway.  The bribe-taker goes to jail only after consent to investigate is given by the competent authorities.

Did someone talk about zero tolerance for corruption? Hah!