Friday, October 21, 2011

Do Kiran Bedi's refund claims amount to corruption?

As someone who is pleased with the unprecedented attention that Anna's movement has brought to the issue of corruption in our public discourse, but critical of certain tactics of the movement which I fear can cause lasting damage to democratic institutions, and also of some of the provisions of the JanLokpal Bill, I have watched the 'revelations' about the members of Team Anna with interest. Some of it is indeed in the nature of a witch-hunt, and underscores the need for a strong anti-victimisation law to protect whistle-blowers and activists. Some attention obviously comes with being prominent in public life.

It was easy for liberals to condemn the attack on Prashant Bhushan for holding controversial views on Kashmir. Whatever the merit of his proposals, social censorship by vigilante groups has become a huge problem in India and we are still groping for a legal response.

The case of Kiran Bedi's inflated reimbursement claims for air travel to give lectures is less clear cut. Bedi seems not deny the facts, but has two defences:
1. Business class travel fare is an entitlement (almost contractual entitlement which is agreed upon by her acceptance of the invite), and in any case claimed with the knowledge ('deemed consent'?) of the organisers.
2. That the 'savings' have been used for a good cause (i.e. by her Trust for educating children).

I think it will be an interesting exercise to see whether this would amount to 'corruption' under the Jan Lokpal Bill. I must enter the caveat that I have no expertise in contract law except what I remember from the first year in law school, and much of the analysis to follow may depend on a good understanding of contract law. Nor have I looked at case-law to see how judges have interpreted the relevant legal provisions. I hope a wiser reader will show how I have completely misunderstood the law. So, I am just thinking aloud and not committed to these views:

The definition clause of the Jan Lokpal Bill borrows the definition of 'corruption' from the Prevention of Corruption Act 1988, with a proviso which is not relevant for this analysis.
The most directly relevant provision of the 1988 Act seems to me to be section 11:

Whoever, being a public servant, accepts or obtains or agrees to accept or attempts to obtain for himself, of or any other person, any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

Prima facie, this definition applies only to public servants, and since Bedi was not acting as a public servant, she would be exempt. It is also not clear whether the people who invited her to give lectures would qualify as the relevant givers of the 'valuable thing'. But for our purposes of discovering whether Bedi has practised what she preaches, these technical exemptions based on the identity of the people involved in the transaction must be ignored for the moment (they do have a bearing on the question, to which I will return later). First we must focus on the substance of the offence of corruption in this provision (which I have highlighted in bold in the provision).

The provision demands that the accused by obtain 'any valuable thing without consideration, or for a consideration which he knows to be inadequate'. Presumably, the concept of 'consideration' is borrowed from contract law.

It seems clear to me that there was indeed some consideration (Bedi was after all taking a flight in order to provide a service in the form of a lecture). I am not a contract lawyer, but it does appear to me that the consideration in this case was indeed inadequate, and Bedi herself appears to accept this. The question is whether her two defences - consent and good purpose - apply.

That the organisers knew about inadequate consideration seems to be irrelevant since the law does not appear to accept consent as a defence. So, Bedi's first defence falls. The provision makes no reference whatsoever to the 'purpose' for which the valuable thing was obtained, so Bedi's second defence that it was for a good cause would be quite irrelevant in the eyes of the law.

Now we return to the fact that Bedi is not a public servant. Indian contract law, as far as I can recall, does not require adequacy of consideration, only that there must be some consideration. Thus, private citizens are indeed allowed by law to enter into transactions where one party gets too little consideration for what they have put in (except in some extreme cases of unfairness). The PCA 1988 modifies these rules in the special context of a public servant, and demands that consideration must also be adequate, and in fact attaches criminal liability to inadequate consideration. If Bedi had done what she has done as a public servant, her actions would most probably amount to corruption. As a private citizen, it is not illegal. Of course, if NGOs are covered by the LokPal, a suggestion that 'Team Anna' has opposed, and similarly stringent rules were applicable to NGO functionaries as they are to public servants, then Bedi may well have committed the offence of corruption.

I must reiterate that I have no personal knowledge of this case beyond what has been reported in the cited links, and I do not know enough to be able to tell whether Bedi's motives were benign. It appears from reports that her motives were indeed benign (again, no defence under this provision). This is just a technical analysis of applying a legal provision to some reported facts. Perhaps the law should take motives and purposes into account. But surely politicians deserve the benefit of this nuanced approach to corruption as much as Bedi?

9 comments:

Neeraj said...

Your discourse is quite thought provoking. Albeit your arguments are based on the hypothesis whether or not this issue can be brought within the jurisdiction of the Lokpal Bill. However, this is besides the point. The media hype and censure stems from the observation that the torch bearers of the Jan Lokpal Bill (Team Anna) should themselves be (just like Caesar's wife) above suspicion. It is this character of the movement that stands blemished. The legal ramifications (if any) are immaterial.

Alok said...

Congress seems to be taking the "Jesus defence" here :)

He who hath not sinned shall be the first to throw a stone.

Except, it's a bit like saying that a murderer shouldn't be prosecuted by law because we all break traffic rules once in a while.

Being a public servant, with respect, makes all the difference in any talk of corruption. Companies,societies, trusts, et al have their own specific laws and regulatory authorities to deal with such problems of agency, but the worst damage is done, in my view, when such regulatory authorities and government officials themselves fail to uphold and obey laws for "consideration".

To conflate all kinds of illegal/unethical behaviour in any circumstance under one head of "corruption" is an obfuscation of the issue at hand, and the Congress is banking on the belief that a confused electorate will lose focus on governmental corruption and keep the status quo going.

captainjohann said...

Sab Chaltha hai. May be her answer.But she is 'ceaser's wife" As government servant I know persons who are dismissed for claiming first class fare while travelling third class and providing false claims.In fact after retirement I was tempted to do the same when the railway gives entitelemt certificate as per our basic pay while the actual cost was a bit lower.But still one fears.Kiran Bedi has no defense because the trust are controlled by her.

Kaushiki said...

Tarunabh,
Glad you wrote this article. Why should Kiran Bedi be held to a different standard from the MPs that she vilifies constantly? And on the same yardstick she is as guilty of corruption as anyone else. If she wanted donations for her NGOs, she could easily have asked them to donate the difference in fare to her NGO rather than do not in an underhand manner.

Rohit De said...

Great set of questions Tarunabh,

As you point out the Govt Bill expressly provides a clause to bring private trusts and societies under it's ambit.

Under Chapter 7, s. 17, its provided that "any person who is or has been a director, manager, secretary or any officer of any society, association or Trust, whether registered or not, which has been partly aided by government or received donations from the public, comes under the Lokpal purview"

I'm not sure what the implications of this are, as it would turn the Lokpal from being a government ombudsman into a parallel criminal authority (besides eating into the role of the Registrar for Societies and other bodies). Would the alternative be to read government supported NGOS as state under Art.12?

Tarunabh Khaitan said...

i think expanding the scope of article 12 will be a good idea generally, but i cannot see why that is relevant in this context? art 12 is only concerned with bodies which must abide by fundamental rights. a statute imposing a statutory obligation can surely select a wider or narrow group, or an entirely different group, to impose those obligations. it may or may not be a good idea to include ngos under lokpal, but am i missing something in failing to see a constitutional point on this issue?

Rohit De said...

Tarunabh

I didn't articulate my point well. I was trying to do a couple of things
1) what sort of precedent would this body follow in regulating both the public and the private sector,

2) Atleast in the Bill, the inclusion of certain NGO's as opposed to private corporations and private trusts is tied to state funding of some sort. The argument seems to be that these institutions are semi-public/or even public. This is usually the test that has been followed for Art 12 to bring PSUS and universities under the ambit of fundamental rights, but have not as far as I know been applied to NGOS.

Tarunabh Khaitan said...

but rohit, there is no reason to draw the public private distinction in this case. we usually draw this distinction when we think that the state or state like bodies have some greater moral obligations than private persons (perhaps, respecting fundamental rights is one of them). but duties not to engage in corrupt practices, not to torture, not to discriminate, not to dismiss an employee unfairly - these duties may apply differently to state and to private bodies (and certain freedoms of private persons may have an impact on the scope of these duties when they apply to them), but I don't see any reason in principle why private bodies should not also shoulder these duties. even the government bill does not go far enough in failing to cover all private companies (as, for example, the British Act does).

Arun Chhikara said...

This article and comments here show what I call negative side of democracy.
One person here is giving away a privilege available to her, mind you not taking anything not in her scope, she is just saving money by sacrificing her own comfort.
Motive may be anything but how can this be a crime.