by Harish Gupta, National Editor, Lokmat Group
The somewhat baffling pronouncement by three judges of the Supreme Court, led by Chief Justice of India H. L. Dattu, that conviction of a corrupt public servant hinges on proving that he actually "demanded" a bribe, has the appearance of the opening shot being fired in an imminent bare-knuckled fight between the judiciary and the executive. The bench in the case in question comprised, apart from CJI Dattu, Justices V. Gopala Gowda and Amitava Roy.
The matter pertains to the charge of a bribe of only hundred rupees as far back as 1996 against a former assistant director of technical education department of Andhra Pradesh. The honourable judges acquitted him on the startling note that the proof of bribe being demanded carried an "indispensable essentiality" for establishing an offence of bribe. In so arguing, the honourable judges referred to Section 7 and sub-sections under Section 13 of the Prevention of Corruption Act 1988, none of which highlights the necessity of proving that the accused person had indeed asked for bribe.
Nor does the concerned law show any ambiguity. The opening sentence of Section 7 is: "Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or from any other person, any gratification whatever, other than legal remuneration...shall be punishable with imprisonment...and (made) liable to fine." There is hardly a mention in the construction of the statute of the prosecution's compulsion to prove that the gratification was indeed sought.
In the past, hundreds of corruption cases have been decided by a powder named phenolphthalein which, if put into water, turns it bright orange coloured. Usually, the bribe-giver bent on entrapping the corrupt official hands over to the latter wads of bank notes liberally sprinkled with colourless phenolphthalein powder. While counting the notes, or even checking the stacks for confirming that the required amount has arrived, the public servant will most likely get a dab of the powder on his finger. A team of anti-corruption officials and pancha (witnesses) members waiting outside complete the job by making the 'babu' dip his finger in a glass of water, which turns bright orange at the first touch. The phrase "range haath pakad giya" (caught red-handed) most probably has its origin in this forensic magic. Last year, in an appeal before the Delhi High Court (Mahesh Pal Singh V. State of NCT of Delhi), an appeal by the teacher of a government school for accepting a bribe of Rs 3,000 to let pass a student who had failed in mathematics was dismissed almost entirely on the strength of the "ghoos powder" test. If the judge in this case had asked for 'demand proof', like recording of the teacher's conversation, it could be almost impossible to obtain conviction for two reasons: first, bureaucrats generally use coded language (once a government officer, after doing my job entirely in the normal course of his work, whispered into my ears that he was "fond of chocolates") so it is impossible to prove their demand unless the bribe-giver has got his room or office bugged in advance. Besides, tell me why a complainant must act as detective when the government is maintaining an elaborate anti-corruption machinery with tax-payers' money?
Judges, whose job is to interpret the law in the light of the Constitution, can of course read the meaning of the word "accepts" at the beginning of Section 7 to imply that anything accepted must have been demanded and therefore the prosecution must prove it first. But that does not sound like the normal way of arguing. A bill to amend the Prevention of Corruption Act is now pending before Parliament. It threatens to invite controversy, like almost every law that the NDA government has proposed. On the positive side, it puts corruption in the same rank as heinous crimes by making maximum punishment seven years of imprisonment and by increasing the minimum term from six months in prison to three years. But the government's much-vaunted "zero tolerance" flounders when the accused are government employees, who, at any rate, being public servants, are by definition the prime target of the PC Act. Following the "single directive", a discriminatory provision in the existing law by which government officers of the rank of joint secretary and above could be investigated only after clearance from the top, the CBI, prime anti-corruption wing of the government, had its hands tied in probing most high-level corruptions. The amendment goes a step further. It immunizes every government employee from investigation by bringing them all under the umbrella of clearance from above. If a government peon collects 'speed money' investigators can't touch him until there is a nod from the office superintendent. But it may not come if the cash is to be split among all in the office according to rank.
However, the bench in the hundred-rupees corruption case acted on the basis of the existing law, the quality of which is another issue. What then can explain such a puzzling contortion of meaning of everyday words like “accept” or “obtain”, especially as such stretching of meaning can cripple all future efforts of the Modi administration to weed out corruption from government. The CBI will thus have no case unless it has voice-recording or e-mail of a corrupt officer asking for bribe. The target of this semantic knife thrust is therefore none other than the Modi government.
Lately, the judiciary and the executive have entered in a conflict zone. In the eye of judges, Modi has trodden where all previous prime minister feared to tread, by announcing the creation of a National Judicial Appointments Commission (NJAC) which, when in action, will put an end to the present opaque “collegium” system by which judges alone pick up judges for appointment, transfer & postings. The judiciary is over-strung as never before at the possibility of the loss of its self-procreating ability. Chief Justice Dattu has boycotted the not only the NJAC but the committee to select two “eminent persons” as its statutory members. A five-judge constitution bench head the petitions challenging the NJAC. But the judgment has not been delivered. CJI is due to retire in December this year. There have been numerous judgments of the SC in the recent past where the government has sought review. In other words, a full-scale constitutional deadlock is on the horizon, the recent verdict on the 1996 case being its first indication.
