Sh. Prithviraj Chavan (MoS, Ministry of Personnel, Public Grievances and Pensions) Sh. Ashwani Kumar (Director, Central Bureau of Investigation) Mr. Kamalendra Prasad (Director, National Institute of Criminology and Forensic Sciences) And Ladies and Gentlemen,

          I am grateful for the invitation to attend the inaugural session of this seminar. I have learnt that this distinguished audience consists of judges, prosecutors, investigators and scientists. I do not need to overstate the fact that all of you are active participants in our criminal justice system and we need to draw our collective energies towards combating corruption.

          The prevalence of corruption is identified with any person or institution who misuses the discretionary decision-making power conferred on them. Ordinary citizens face unnecessary problems in their routine interactions with governmental agencies. Practices such as the acceptance of favours or misappropriation of public funds have actually come to be described as the 'perks' of holding public office and employment. Admittedly, one of the causes behind the widespread incidence of corruption is the considerable disparity between the pay-scales offered in the public and private sectors. However, low wages are not the only trigger for practices such as demands for bribes and the use of undue influence in governmental activities. In many instances, it is the lack of monitoring mechanisms or their poor enforcement which encourages public officials at different levels to seek or accept illegal gratification. In some other settings, the public authorities control the distribution of scarce resources and it is private parties themselves who tend to offer bribes out of a sense of urgency and desperation. In addition to the payment of bribes, the delivery of public services is often distorted by the use of connections among those responsible for dispensing the same. Even when no money changes hands, the quality of governance suffers when decisions are made on account of extraneous considerations related to political patronage, kinship or caste and linguistic identity among other factors.

          Whatever may be the causes behind the incidence of corruption, the alarming fact is that there is considerable tolerance of the same in our society. Empirical studies have shown that the poorer sections, i.e. the Below Poverty Line (BPL) households are disproportionately affected by the culture of graft. For example, frequent reports of the diversion of foodgrains from the PDS system demonstrates that such practices are directly linked to starvation and malnutrition in poor households. Demands for bribes, even for the delivery of essential services such as the issuance of ration cards and the approval of electricity and water connections is a reprehensible practice. Families who are already disadvantaged on account of poverty and illiteracy are further exploited and denied amenities. Independent studies have shown that the incidence of corruption is the highest when it comes to interactions with the local police, allocation of housing and in the maintenance of land records and registrations. In recent years, irregularities have also been reported in the implementation of the National Rural Employment Guarantee Scheme (NREGS), wherein 'muster-rolls' are manipulated and the designated wages are collected by middlemen who falsify records about the extent of work done by individual workers. A few months ago, the Prime Minister has also expressed his concern about reports of corruption in the grant of Environmental Impact Assessment (EIA) clearances for real estate and infrastructural projects.

          In the long-run, the costs of corruption are not confined to the money that changes hands under the table. The real costs are difficult to measure since they involve the loss of opportunities for business and investment as well as the diversion of man-power, when it may be usefully employed elsewhere. In some instances, corruption poses a threat to national security and law and order. We are all aware of how smuggled arms and explosives were used for the bomb blasts in Bombay in 1993, as well as the financing of terrorist operations through the 'Hawala' currency racket. All in all, the pervasive culture of graft provokes pessimism about the quality of governance. In the words of former UN Secretary-General Kofi Annan:

          "Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life, and allows organised crime, terrorism and other threats to human security to flourish."

          In the discourse of International law, the prevalence of corruption is now considered to be a violation of basic human rights. This means that the act of demanding or accepting bribes in return for performing routine governmental functions is being equated with unjust restraints on personal liberty. If this understanding is adopted in the future, there will be a case for the higher judiciary to grant effective constitutional remedies in respect of instances of corruption, which would be over and above the statutory remedies provided by the Prevention of Corruption Act. In recent years, several instances of corruption by high-level officials have been recorded by the higher judiciary in the exercise of their writ jurisdiction, but the same do not amount to convictions and hence effective punishments could not be given. Therefore, our deliberations should focus on how to strengthen the investigation and prosecution of corruption cases, so that the courts of first instance are able to improve the conviction rates.

          As far as substantive laws are concerned, the Prevention of Corruption Act was amended in 1988 to incorporate offences relating to the acceptance of illegal gratification by public servants. The offences that had been previously enumerated in the erstwhile Sections 161 to 165 of the Indian Penal Code, were included in the Prevention of Corruption Act and higher penalties were prescribed. In addition to illegal gratification which could be in the nature of monetary benefits as well as those in kind, the Act also defined the offences of 'criminal misconduct' and the 'possession of assets disproportionate to known sources of income'. Another amendment expanded the definition of 'criminal misconduct' to include acts which result in a loss to the exchequer and are violative of public interest, irrespective of whether the concerned public servant makes a monetary gain for himself. While the substantive definition of offences appears to be quite adequate, there have been persistent demands for enhancing the penalties and punishments under the Act.

          One prominent suggestion is the inclusion of a statutory remedy that will enable confiscation of properties belonging to persons who are convicted of offences under the Prevention of Corruption Act. The rationale behind the same is that if a public official amasses wealth at the cost of the public, then the state is justified in seizing such assets. Similar enactments viz. SAFEMA in case of persons arrested under detention laws have not proved to be very successful. However, such proposals need to be thoroughly examined for their constitutional compatibility, before they are enacted in the form of legislations. The main point here is that for most offences, it is not the quantum of punishment but instead the certainty of punishment which proves to be an effective deterrent.

          It is with the objective of ensuring the certainty of punishment that we should turn our attention to the obstructions in the investigation and trial process. The foremost criticism of the Prevention of Corruption Act is that an investigating agency needs to obtain the prior sanction from a ‘competent authority’ in order to initiate a prosecution against a public servant. This requirement is read in conjunction with Section 197 of the Code of Criminal Procedure, which also provides that proceedings against public servants can only begin after a sanction is obtained from superior authorities. The legislative intent behind the requirement of such a prior sanction was to discourage frivolous complaints and vexatious litigation against public servants. However, it is perceived in many quarters that these provisions contribute to a climate of impunity where the requisite sanction is either delayed or denied by higher executive authorities. Even in instances where the investigating agencies have gathered substantial material to proceed against a person, it is felt that the necessary sanction is not given on account of extraneous considerations. In many cases, aggrieved parties have approached the higher judiciary when the requisite sanctions have been denied despite the production of incriminating materials.

          At the time of the enactment of the Prevention of Corruption Act in 1988, an objection was raised against the provision which empowered State Governments to appoint the Special Judges for trying corruption-related cases. This had raised apprehensions that the judges who would be appointed may be pliant to the demands of the political executive. However, in practice this apprehension has been addressed with the progressive establishment of Special CBI Courts which are manned by judicial officers of the rank of a sessions judge. This has ensured an expedient forum for trying corruption-related cases in an atmosphere of independence and impartiality. However, the existing number of courts is quite inadequate and more than 9,000 cases involving the C.B.I. are pending all over the country. The Central Government has assured its assistance in establishing more CBI Courts in the near future.

          Another controversial issue has been the move towards the separation of prosecution functions from the investigative functions of the CBI. I understand that there has been considerable resistance to this suggestion, since investigating officers and prosecution lawyers need to work in close co-ordination. The real problem here is that C.B.I. has been relying on government law officers and standing counsels to conduct the prosecutions, whereas there is a need for retaining a regular team of lawyers which will progressively develop expertise in prosecuting corruption-related cases. Having a specialised team of lawyers will also ensure that they thoroughly scrutinise the investigators' efforts in evidence-gathering, thereby improving the presentation of cases.

          In order to ensure successful prosecutions, the main requirement is that of producing properly obtained evidence before the courts of first instance. The proper prosecution of corruption cases is inherently difficult since investigators often have no choice but to rely on 'entrapment' methods to gather material. As all of you would know, both of these approaches have their grey areas and prosecution cases built on the same can be easily attacked by the defence lawyers. Especially, in cases related to the payment of bribes, investigators routinely rely on the cooperation of persons who induce public officials to ask for or accept illegal gratification. In such cases, marked currency notes are handed over and then later recovered from the said public official in order to prove the commission of the offence. In some other cases, corruption is unearthed through surveillance activities or wire-tapping by the investigators. In all of these circumstances, the prosecution's case can suffer if the defence lawyers are able to point out any procedural flaws in the methods used for evidence-gathering. It is in this context that prosecutors need to be given a certain degree of functional independence so that they can rigorously examine the investigators' efforts, even though it is debatable whether they should be given institutional independence.

          I am sure that the participants of this seminar will raise the issues relating to investigation. I would like to thank the Central Bureau of Investigation (CBI) and the National Institute of Criminology and Forensic Sciences (NICFS) for inviting me to speak here today.

Thank You!