Friday, February 13, 2009

Extending impunity under Prevention of Corruption Act

In the last Parliamentary session, the Lok Sabha passed an amendment to the Prevention of Corruption Act, 1988. the amending Bill is due to be presented in the Rajya Sabha in this session. One of the provisions that this Bill seeks to extend is the requirement of prior governmental sanction to prosecute a public servant under section 19 of the Act to former public servants as well. The amendment seeks to undo the decision of the Supreme Court in Badal v. State of Punjab, where the Court held that section 19 protection is not available to former public servants.

The general requirement of sanction for prosecuting public servants is contained in s 197 of the Code of Criminal Procedure. Our blog has previously described how this provision is the main reason for impunity in mass crimes. This absence of sanction under this provision was the reason why the Calcutta High Court recently quashed criminal proceedings against a police officer in a custodial death case. In a recent decision in a case filed by the Andhra Pradesh Civil Liberties Committee, the AP High Court has directed that all encounter deaths should be treated like murder. I haven't seen the text of the judgment yet, but given that police officers are usually involved in enounter death cases, one wonders if the judgment specifically creates an exception to s 197.

The statement of Objects and Reasons in the Prevention of Corruption (Amendment) Bill says:

'The purpose of section 19 of the said Act is to provide a safeguard to a public servant from vaxatious prosecution from any bonafide omission or commission in thedischarge of his official duties. Presently, this protection is not available for a person whohas ceased to be a public servant. The said section is being amended to provide the saidprotection to the persons who ceased to be public servants on the lines of section 197 of theCode of Criminal Procedure, 1973.'

The fear of vexatious prosecution shows that the government does not trust its own police and prosecution agencies (there is relatively little scope for citizen-driven prosecution under the Code of Criminal Procedure, without cooperation from the state). If the prosecution agencies allow vexatious prosecution, surely that is a reason to reform them. After all, why is it ok to allow such prosecution of private citizens but not public servants? Dicey's insistence that rule of law requires that every person be governed by the same law before ordinary courts has an important lesson - if the powers-that-be are equally affected by ordinary laws, they will have a vested interest in fixing its problems. This impunity makes sure that there is a separate system for public servants, and gives them no incentive to fix our criminal justice system.

In any case, even if there is a case to be made for screening out cases for vexatious prosecution against public servants, surely the screening should be judicial rather than political. Experience leaves us in no doubt that this political screening has been done arbitrarily. It is perhaps time to challenge the constitutional validity of these provisions under Article 14. In the meantime, Rajya Sabha will do well to refuse to pass the amendment.
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