CORRUPTION: MISUSE OF AUTHORITY, AN ISSUE WITH SOCIETAL AND LEGAL IMPLICATIONS. BY - DR. SHWETALI S. PATIL
CORRUPTION: MISUSE OF AUTHORITY, AN ISSUE WITH SOCIETAL AND LEGAL
IMPLICATIONS.
AUTHORED BY - DR. SHWETALI S. PATIL
i/c Principal – St. Rock’s Degree
College of Law: Borivali (w), Mumbai
ABSTRACT
Corruption occurs when individuals
misuse the power entrusted to them for personal gain. It hinders a nation’s
economic growth, exacerbates poverty, and deepens inequality. The origins of
corruption in India can be traced back to the British colonial era. In
contrast, Denmark, Finland, New Zealand, and Sweden rank among the least
corrupt countries globally. This paper examines the varying healthcare
responses to the pandemic, highlighting how differing levels of corruption
across nations influenced these outcomes. It is crucial that both Union and
state governments had proactively managed the corruption risks that arose from
the significant imbalances between demand and supply during the pandemic.
Corruption within prison systems,
particularly among staff, is prevalent worldwide. Although the substantial authority
guards hold over inmates makes such issues predictable, the problem is
exacerbated by the low salaries guards typically receive. Inmates often
supplement guards' incomes with bribes in exchange for contraband or
preferential treatment. This paper introduces the issue of corruption within
prisons in the context of varying healthcare responses in the United States.
This article primarily explores the
various forms of corruption, including relevant legislative measures such as
The Prevention of Corruption Act, 1866, The Indian Penal Code, 1860, and The
Benami Transactions (Prohibition) Act, 1988. Additionally, it delves into
corruption in jails, types of corruption, prevention strategies, and other
related topics.
KEYWORDS: corruption, transaction, offence,
prevention,
punishment.
INTRODUCTION
Corruption is when
one misuses power entrusted to them for personal gain. This misuse of power
abrades the trust between two or more parties and makes the democracy weak.
Corruption also obstructs the economic growth of a nation and aggravate poverty
and inequality. It is necessary to understand how corruption works to be
revealed and the corrupt can be held responsible for creating a corrupt system.
India's economy
endure agony from serious problems of corruption. One of the biggest barriers
to progress for developing nations like India is regarded to be corruption.
There are many definitions of corruption. According to the Oxford Dictionary,
"corruption" is defined as "the abuse of public power for
private gain."
Denmark, Finland,
New Zealand, Norway, Singapore, and Sweden are those countries which are least
corrupt nations in the world, which is ranking consistently high among
international financial transparency, while the most apparently corrupt are
Somalia (scoring No.12), Syria and South Sudan (both scoring No.13)
Corruption refers to
abuse of public power for personal gain. It can be done by an elected
politician, civil servant, journalist, school administrator, or anyone under
authority. Apart from public corruption, there is private corruption between
individuals and businesses. Thus,
corruption definition applies to different forms.
Any employee or
official of a Government Authority in India can be penalized for corruption
under the Indian Penal Code of 1860[1]
and or the Prevention of Corruption Act of 1988[2].
Benami transactions are prohibited by the Benami Transactions (Prohibition) Act
of 1988. Any employee or official of a Government Authority who engage in money
laundering are subject to punishment under the Prevention of Money Laundering
Act of 2002.[3]
Since 2005, India has been a participant to the UN Convention against
Corruption. The Convention addresses a wide range of corrupt practices and from
time to time encourages certain preventive measures.
The highest reported
corruption cases in 2021 was Maharashtra, with 773 cases.
This was followed by Rajasthan with 501 reported corruption cases.
Now-a-days, corruption is commonly seen
everywhere in the society just like an infectious disease. The great leaders of
the India who have fought their entire life for removing corruption and other
social issues completely from the society. It is the very shameful condition
for us that even after losing various great lives, people are not able to
understand our real responsibilities. Corruption has been widely speeded in the
public lives, politics, central governments, state governments, businesses,
industries, etc. It is mostly in all field. Corruption is increasing everyday
instead of decreasing or steadying because of the continuous increase in the
appetite of people for money, power, position and luxury.
The real responsibility of being a human is
just forgotten because of the money. the need to understand that money is not
everything. Corruption money cannot be kept forever, it can only give
greediness and encourages more corruption.
What causes
the deep-rooted nature of corruption?
The roots of corruption in India are dated back since the British
colonial rule. The British administration were systematically excluded much of
the Indian population from key political and administrative processes that
helped to institutionalise graft culture by enacting the crucial Official
Secret Act, 1923. This act made it an offence for any public official to
disclose state information or secrets.
This act continues to perform its role in sustaining graft culture in
the post-Independence period, although India was mostly caught up in graft
culture due to overzealous state regulation and particularly when it came to
economic activities, that perversely brought in the infamous License Permit
Raj.
This Permit Raj is which curbed foreign investment and severely suppress
competition in the name of a “socialist economy”, severely encouraged a culture
of bribery or rent-seeking activities for sourcing any business from the
government. It created a black market for everything and smuggling of imported
goods became very common.
The
actual turning point for India’s culture of graft began with the commencement
of economic reforms and liberalisation in 1991. While economic reforms led to
the stoppage of licensing for industrial activities and the abolition of import
quotas, thereby, removing many
corrupt practices, this did not reduce the graft. Above that, the economic
reforms and huge growth expanded the spaces for high volume of corruption. The
rent seeking behaviour took on many new innovative ways.
Causes of Corruption
According to a survey in 2017, the following
reasons have been attributed as causes of corruption.
·
Greed
of money or desires.
·
High
levels of market and political monopolization
·
Low
level of democracy or weak civil participation and low political transparency
·
Low
press freedom
·
Low
economic freedom
·
Gender
inequality
·
Poverty
·
Political
instability
·
Weak
property rights
·
Contagion
from corrupt neighbouring countries
·
Low
levels of education
·
Lack
of commitment to society
·
Extravagant
family
·
Unemployment
·
Lack
of proper policies against corruption
KEY ELEMENTS OF THE ACTS
RELATED TO CORRUPTION
Indian Penal Code, 1860
·
As per the IPC, A "public
servant" refers to any government official, military, navy, police
officer, judge, or other officials of the Court of Justice, etc as well as any
local (Government) authority established by a Centre or State Act.[4]
·
A government official who buys
or puts forward on any property unlawfully is in violation of Section 169.[5]
A government official who violates the law will be punished with up to two
years of imprisonment or a fine, or both. If the property is purchased, it
shall be seized.
·
As per section 409 pertaining
to criminal breach of trust by government officials. The official will be
penalized with either life imprisonment or a fine.[6]
Prevention of
Corruption Act, 1988
·
In addition to the groups
included by the IPC, the term "public servant" also refers to any
officials working for banks, universities, and the Public Service Commission as
well as cooperative societies that receive government funding.
·
A government official or public
servant faces a minimum six-month sentence and a maximum five-year sentence and
fine if he/she takes quench other than his or her legal remuneration in
exchange for performing an official act or influencing other public employees.
He/she can also be punished under the law for using illegal means to exert
personal influence over another public servant or for obtaining quench from
doing so.
·
Section 7 of Prevention of
corruption Act,1988 describes
·
Offence relating to public servant being
bribed. — Any public servant who, —[7]
·
(a) obtains or accepts or attempts to obtain
from any person, an undue advantage, with the intention to perform or cause
performance of public duty improperly or dishonestly or to forbear or cause
forbearance to perform such duty either by himself or by another public
servant; [8]or
·
(b) obtains or accepts or
attempts to obtain, an undue advantage from any person as a reward for the
improper or dishonest performance of a public duty or for forbearing to perform
such duty either by himself or another public servant;[9]
or
·
(c) performs or induces
another public servant to perform improperly or dishonestly a public duty or to
forbear performance of such duty in anticipation of or in consequence of
accepting an undue advantage from any person, shall be punishable with
imprisonment for a term which shall not be less than three years but which may
extend to seven years and shall also be liable to fine.[10]
The Benami Transactions
(Prohibition) Act, 1988
·
The Act refuses any benami
transaction, which is defined as buying anything under someone else's name
without paying for it, keeping an exception of when a person buys something in
his wife's or unmarried daughter's name.
·
Anyone who is caught or engaged
in a benami transaction shall be punishable with a sentence of up to three
years in prison and/or a fine.
·
The appropriate authority may
acquire all alleged benami properties without the need for payment of any kind.
·
According to Section 2 of
Benami Transaction prohibition Act,1988
·
(a) benami transaction means
any transaction in which property is transferred to one person for a
consideration paid or provided by another person;[11]
·
(b) prescribed means prescribed by rules made
under this Act; [12]
·
(c) property means property
of any kind, whether movable or immovable, tangible or intangible, and includes
any right or interest in such property.[13]
The Prevention of Money Laundering
Act, 2002
·
Any Government Officials who
are involved in money laundering are subject to punishment under the Prevention
of Money Laundering Act of 2002. According to the Act, whenever a person
participates in any procedure involving the proceeds of crime and presents
those proceeds as untainted property, money laundering has been committed. Any
property acquired by a person as a result of criminal conduct connected to some
of the offences enumerated in the schedule to the Act is referred to as
"proceeds of crime." Only after being accused of committing a
scheduled offence may someone be charged with money laundering.
·
Money laundering is an offence
that carries a rigorous punishment, which is three- to a seven-year prison
sentence and a fine up to Rs. 5 lakhs.
OFFENCE OF MONEY LAUNDERING
According to Section 3 of The Prevention
of Money Laundering Act,2002 - Whosoever directly or indirectly attempts to
indulge or knowingly assists or knowingly is a party or is actually involved in
any process or activity connected with the 1 [proceeds of crime including its
concealment, possession, acquisition or use and projecting or claiming] it as
untainted property shall be guilty of offence of money-laundering.[14]
PUNISHMENT OF MONEY LAUNDERING
ACCORDING TO SECTION 4 OF PREVENTION OF
MONEY LAUNDERING ACT, 2002 - Whoever commits the offence of money-laundering
shall be punishable with rigorous imprisonment for a term which shall not be
less than three years but which may extend to seven years and shall also be
liable to fine.[15][16]
Provided that where the proceeds of crime
involved in money-laundering relates to any offence specified under paragraph 2
of Part A of the Schedule, the provisions of this section shall have effect as
if for the words “which may extend to seven years”, the words “which may extend
to ten years” had been substituted.[17]
HOW TO DEAL WITH CORRUPTION
IN PUBLIC OFFICES?
Public corruption is stated as a promise, offering,
or giving, to a public official, directly or indirectly, of an undue advantage,
for the official himself/herself or any person or entity, in order that the
official act or abstain from acting in the conducting of his/her official duty.
The laws that are in place to regulate the
behaviour of Government Officials and to address the problem of public bribery
are
The Lokpal (independent ombudsman) to
investigate and convict the public employees, including ministers, for
corruption; [18]
The word "Lokpal" is from
the sanskrit word "loka" meaning people and "pala"
meaning protector or caretaker. Together it means "protector of people".[19]
The aim of passing such a law is it to eradicate corruption at all levels of
the Indian polity. For a nation to develop it needs to have an extremely well
organized and meticulously planned organization.[20]
The Lokpal and Lokayuktas Act of 2013,
The Centre Civil Services (Conduct) Rules of
1964,
The
All-India Services (Conduct) Rules of 1968, and
The Prevention of Corruption Act of 1988
(PCA).
The Types of Corruption
Corruption
can be defined and categorised into different types such as Petty corruption
and grand corruption and systematic corruption.
Petty
Corruption – Petty or administrative corruption takes place when the public
meets public officials. Petty corruption is usually described from
"grand" and political corruption. It usually takes where smaller
amounts of money are involved but the damage may be caused significant in
social terms.
For Example - Illegal fees paid by
parents to get their children admitted to schools or to be promoted or to pass
their exams.
Grand
Corruption - Grand corruption is when there is
abuse of high-level power that benefits the few at the expense of the many, and
causes serious and drastic harm to individuals and society. It’s often
unpunished.
Corruption
can occur to a massive extent that causes harm the honest law-abiding citizens.
Exposing corruption and penalising the corrupt is the only solution to reduce
it.
How to report
corruption in India?
The Indian judiciary has a very strong law
against corruption. The main perspective is there is no need for a lawyer to
file a complaint.
In India anyone can report corruption
through government-initiated agencies like
·
Central Vigilance Commission
(CVC)
The Central Vigilance Commission was set up by a Resolution No. 24/7/64
-AVD which was dated 11th February 1964 from the Government of India, on the
recommendations of Committee on Prevention of Corruption formed under the
Chairmanship of Shri K. Santhanam.
Central Vigilance Commission was set up with a
scope to exercise supervision over vigilance administration of the
organisations in respect of which the executive powers of Government of India
extended. It was known as the apex Integrity Institution, which have
completed independence and autonomy in its functions. Central Vigilance
Commission has been mandated to advise the authorities, which is in respect of
an act of improper conduct or corrupt practices, along with review and modification
of procedures and guidelines, which may afford scope for corruption or corrupt
(practices).
·
Central Bureau of Investigation
(CBI)
CBI stands for the Central Bureau of Investigation. It is an
important investigative agency of India which is responsible for investigating
a great range of crimes such as corruption or economic offenses or major
frauds, and high-profile cases. The agency was established in
the year 1963 and employed under the administration of the Ministry of
Personnel, Public Grievances, and Pensions.
The CBI stated the authority to investigate from the Delhi Special
Police Establishment (DSPE) Act, 1946[21],
and the headquartered is in New Delhi, India. The Central Bureau of
Investigation is involved in big criminal probes and is also know the Interpol
agency in India. The CBI investigates cases that are given to it by state
governments, courts, and the central government. It has the power to take up
cases on its own will in certain circumstances.
·
Lokpal
How to report
corruption against a Central government employee?
To report corruption against Central
Government employees, one should reach out to Central Vigilance Commission
(CVC).
The Commission has the power to inquire or
cause inquiries to be conducted into offences alleged to have been committed by
certain department or official of public servants of the Central Government.
Categories of such public servants
are as stated
a)
Members of All-India Services
serving in connection with the affairs of the Union and Group A officers of the
Central Government of India.
b)
Officers of the rank of Scale V and higher in
the Public Sector Banks
c)
Chief Executives and Executives on the Board
and other officers of E-8 and higher in Schedule ‘A’ and ‘B’ Public Sector
Undertakings
d)
Chief Executives and Executives on the Board
and other officers of E-7 and higher in Schedule ‘C’ and ‘D’ Public Sector
Undertakings
e)
Officers in Grade D and higher in Reserve Bank
of India, NABARD and SIDBI
f)
Managers and higher in General Insurance
Companies
g)
Senior Divisional Managers and higher in Life
Insurance Corporations
h)
Officers drawing a salary of Rs.8700/- per
month and above on Central Government D.A. pattern, as on the date of the
notification (dated.12th September 2007) and as may be revised from time to
time in Societies and other Local Authorities
CORRUPTION IN PRIVATE
OFFICES
Corruption is unacceptable for both society
and business and poses serious financial, operational, and reputational
concerns. Now Companies are working to incorporate serious and effective ways
of anti-corruption measures and policies inside their strategy and operations.
Here are some ways for encouraging
accountability and transparency in a private company:
·
Commit: Integrate strong anti-corruption practises into business
practises. Make it clear to the company staff, clients, and suppliers that
bribery and corruption are not tolerated at all.
·
Define: Specify what a company's success demands. Create objectives,
plans, and policies to gain support from colleagues by emphasising the
significance of these policies in clear terms.
·
Implement: Integrate strong anti-corruption policies and programmes across
the whole organisation, including the value chain.
·
Measure: What is measured, is to accomplish. Track and assess the results
of anti-corruption initiatives to determine what is effective and what still
needs improvement either of the way.
A strong emphasis on corporate governance
and fraud prevention, the Companies Act of 2013 and the Securities Exchange
Board of India (Listing Obligations and Disclosure Requirements) Regulations
2015 were made to regulate instances of private corruption among businesses
(both domestic and foreign) either way.
For regulating corruption among individuals
those with undisclosed income and tax evaders have been targeted under “Black
Money” (Undisclosed Foreign Income and Assets), the Imposition of Tax Act of
2015, and the Fugitive Economic Offenders Act of 2018.
CASE LAW
When interpreting Section 3 of the
Prevention of Money Laundering Act, 2002, The Supreme Court of India held that
it is not necessary to demonstrate that the proceeds of crime are untainted in
order for the offence to be prosecuted under the PMLA. As a result, the word
"and" for demonstrating the proceeds of crime are untainted property
is construed as "or" because it must not defeat the very purpose of
the Act. The court further asserted that indulging in or aiding in the activity
of obtaining the proceeds of crime is a sufficient and reliable piece of evidence
for attracting the crime under PMLA, and the property need not be shown to be
untainted. The court argued that if this were not the case, members of crime
syndicates would keep the proceeds of crime for years and would benefit from
them without any intervention from law enforcement agencies. Therefore, the
section must be read in conjunction with the explanation added by an amendment
in 2019, which is sufficient to declare participation in an activity to get the
proceeds of crime a crime under the PMLA, 2002.
Measures
that can be taken to tackle corruption
- Legal
steps that can be taken :
- Prevention
of corruption Act 1988
- Benami
property Act
- Central
vigilance commission act
- Right
to Information act, 2005
- Whistleblower
protection Act 2014
- Lokpal
and Lokayukta Act 2013
CORRUPTION DURING COVID – 19
Pandemic
Governments of states and union territories
should had immediately launch a crackdown on black-marketing of essential
medical items and services across the country, the demanded anti-graft watchdog
Transparency International India (TII), which called corruption as the
"second pandemic" during the Covid-19 crises.
Amid the unusual surge in coronavirus cases
across the country, the most needed resources for Covid-19 response, included
oxygen, medicines, ambulances, beds and ventilators were being provided to
patients at exorbitant prices.
Corruption is
defined as dishonest or criminal offence undertaken by a government official or
organisation, who have been kept in the position of authority, to get illicit
benefits for their personal gain. Corruption in healthcare became even more
strong during COVID-19 as embezzlement of health care funds, using expired
vaccines, fraudulent health contracts, etc have got a life-or-death
consequence. It would not be inaccurate to term COVID-19 as the main cause of
corruption pandemic as citizens across the globe have reported a widespread
rise in corruption post-pandemic (Transparency International, 2020a). It is in
this context that we discuss the heterogeneity in healthcare response to the
pandemic in the light of drastic levels of corruption across the nations.
It is high time that
governments (Union and states) should have pro-actively managed the corruption
risks that have emerged due to the extraordinary between demand and supply
during the pandemic. Government should have immediately launched a block on
black-marketing of essential medical items and services across the country,
said Rama Nath Jha, Executive Director, TII, he added that corruption in these
times is like the "second pandemic".
It also informed all
the governments to immediately set up a "anti-corruption control
rooms" up in all the district-level for relief on phone or other
technology platforms.
CORRUPTION IN JAIL
Corruption by prison staff and its less
aggressive effect, guard corruption, is very common in prisons around the
world. Given that the substantial powers for guards exercised over inmates and
these problems are very much predictable, but the lower salaries that guards
are generally paid severely aggravate them. In exchange for contraband or
special treatment, inmates supplement guards’ salaries with along with bribes.
CONCLUSION
The development of any country is only
accomplished when the economy of the country is strong and no hindrance would
weaken the economy. Due to the direct influence of corruption has the country's
economic structure, it is both a social ill and one of the main elements
affecting the country's progress. The government has made many attempts to
fight corruption, and as a result, laws pertaining to corruption have been
passed. The Money Laundering Act, Black Money Act, and Prevention of Corruption
Act, as well as the Indian Penal Code Act,1988 mention the crime and stipulate
punishment for the Acts of Corruption in India. Even though India is a
developed country with a strong legal system and similar provisions, corruption
has not been completely removed from the country. However, there has been a
reduce in the level of corruption, trying to make India the least corrupt of
all the developed countries.
Stopping corruption
in a democracy like India is unlikely, instead, it is openly questioned or
analysed, and scrutinised. Corruption is a political issue in India with
long-reaching economic implications, as seen by the country’s history before
and after. Since many years, India has been tortured with corruption, which has
failed successive governments. Bribes were generally paid for doing the wrong
thing, but today they are compensated for doing the proper thing at the right
moment. However, these corruption cases eventually are not covered, and voters
respond by holding politicians responsible when the opportunity arises.
[1] Indian Penal Code, 1860
[2] Prevention of corruption Act,1988
[4] Public servant under IPC
[5] Sec 169 Indian Penal code,1860
[6] Section 409 Indian Penal Code,1860
[7] Section 7 of prevention of
corruption Act,1988
[9] Section 7(b) Prevention of
corruption Act,1988
[10] Section 7 (c) Prevention of
corruption Act,1988
[11] Section 2 benami transaction
act,1988
[12] Rules under benami transaction
Act,1988
[14] Section 3 of The Prevention of
Money Laundering Act,2002
[15] Section 4 of Prevention of Money
laundering Act,2002
[16] The words “which may extend to
five lakh rupees” omitted by Act 2 of 2013, s. 4 (w.e.f. 15-2-2013).
[18] Lokpal an anti-corruption authority or body of ombudsman who
represents the public interest in the Republic of India.
[19] Lokpal “Definition”
[21] DSPE – Delhi Special Police
Establishment Act,1949
[22] (2005)
5 SCC 294