Beyond punishment for corrupt

By Cleofato A Coutinho
12 September 2011 00:08 IST

In the season of making the government accountable and ridding the administration of corruption, the Himachal Pradesh Assembly passed a bill to confiscate illegally acquired property of public servants. The bill called Himachal Pradesh Special Courts (attachment and confiscation of property) Bill 2011. It provided for confiscation of ill gotten wealth in money and property and also providing for speedy trial in corruption cases were passed. The bill provides for “if the government is convinced that, prima facie, a public servant has amassed, wealth and properties by corrupt practices, an application to be made to the special court… any such property shall be confiscated”.

That approach looks correct.

Our country introduced the Prevention of Corruption Act in 1947 and replaced it in the year 1988. The law, though titled as Prevention of Corruption Act, was actually a penal law (not preventive!) brought in to deal with illegal gratification by public servants. A separate penal provision having ‘assets more than the known sources of income’ was also introduced. But it made no headway. In many cases, the ‘sanction to prosecute’ withheld prosecution. But generally the law failed to make its mark. On the criminal side our judicial system is quite poor. Generally the conviction rate hovers around 6% and on the corruption front it shall be still lower (may be below 1 %).

Even in those cases where there is conclusion of trial, the judicial process has been so slow that by the time the judgement is delivered, the result hardly matters, even to the public servant who is acquitted since time acts as a great healer and the result of   acquittal makes no impact whatsoever.

The government Lok Pal bill introduced in the Parliament and now before the standing committee of Parliament and the Jan Lok Pal bill have statutorily fixed time limits for investigation and trial. The government bill gives six months for investigation and one year for trial generally. As and when Lok Pal institution is brought into being, the said time frame shall go a long way in dealing with the issue of delay in trials. All Lok Pal drafts speak of corruption as a crime, to be dealt with an iron hand through speedy trial.

Some days back the CBI informed the Supreme Court that they are unable to show the money trail in the matter of Unitech in the 2G scam. Justice Santosh Hedge was in a position to name and nail the Chief Minister of Karnataka B S Yedurappa only due to the fact that trusts run by his sons and son-in-law received huge sums from the mining companies. Proving the money trial becomes an extremely serious issue in criminal prosecution since the corruption offences are based upon receipt of illegal gratification. In case the money trial cannot be proved criminal, public servant goes scot free. The misfortune of Raja and Kanimozhi is that the transactions and shares transfers are recorded and the money trial can be proved. But in most cases proving a crime is difficult.

We follow a great principle of criminal law of ‘proof beyond doubt’ in criminal cases. It is this great principle that lets criminals go scot free in most cases, but we cannot afford to dilute that principle of criminal prosecution as that is part of civilized criminal jurisprudence. Even Ajmal Kasab had to be proved guilty beyond doubt! Such principles enhance our standing as a nation following the Rule of law.

Now that all versions of the Lok Pal bill are before the ‘standing committee,’ it may be worth exploring whether in addition to criminal prosecution of the corrupt public servants, it is possible to confiscate properties of public servants through a system of attachment and confiscation of properties which are part of ill gotten wealth.

Prosecution and the punishment is required to deal firmly with the menace. But in dealing with the menace, an old recommendation of the Law Commission of India made in the beginning of this century for attachment and confiscation of property of public servants is worth giving a serious consideration in addition to criminal prosecution. Corruption, as a white collar crime, may not meet ‘proof beyond doubt’ standard. In case the money trial cannot be proved, it shall be difficult to prove a corrupt act despite all strict and speedy measures advocated by the ‘civil society ‘.

Under the government version of Lok Pal and under the Jan Lok Pal, the public servant ought to make good the loss to the state, if convicted. The state will not get compensation if there is no conviction. And who says the convicted shall have means to compensate the state?

Attachment and confiscation of property by civil action could be additional method to proceed against the corrupt. The Lok Pal ought to be empowered to order attachment and confiscation of ill gotten money and property   which is more than the known sources of income. If such attachment is made, the burden of proof ought to be on the public servant to prove the source of the said ill gotten money and property. The burden of proof in civil action like the confiscation of illegally felled trees or adjudication under the Customs Act is always lighter then that of criminal action.

 Having assets more than the known sources of income, though a penal offence and despite high ranking officials and public men having ill gotten wealth in money and property, there is hardly any conviction. That is due to the investigating agency being unable to prove the guilt beyond reasonable doubt.

As the nation debates and the standing committee scrutinizes the various versions of the Lok Pal bill, it is also worth considering the proposal whether the institution should be given a constitutional  status and/or whether in addition to the criminal prosecution seizure and confiscation of ill gotten wealth in money and property should be seriously considered. No doubt with the anti-corruption crusade coming into centre stage, the Lok Pal courts shall come but may not help dilute the rot. The fear of attachment in non-criminal proceedings shall dry up the desire for accumulation of assets by foul means. Making corrupt act a civil wrong is worth trying. 

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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Previous Comments

I guess like all newly enacted Bills, the Lok Pal Bill will need to be "finely tuned" over a period of time and after a few Cases have been tried & tested.No doubt the 40 Goan MLA`s are also "finely tuning" their defence and deceptions.

It has been noticable recently, that the Money Laundering MLA`s are not making many Private visits abroad to dump their loot.Traffic to Dubai seems to have slowed down.It is also becoming apparent that some MLA`s are making extremely large Prize donations to Church Lotteries and other schemes.I guess the "hot money" must be causing an itch.The coming Elections, predicted to be in Feb /March will also be an eye-opener for the Public,to note which MLA`s have something to hide, if the Lok Pal is enacted.Guilt will change ones behaviour.

- N.Fernandes, London | 22 nd September 2011 00:14

 

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