Why Hasn’t the Indian Parliament Plugged the Gaping Hole in the Nation’s Anticorruption Law?

India’s leaders have taken numerous steps in recent years to curb the pervasive corruption that grips the country.  Right to information, whistleblower protection, and other preventive measures have been enacted; an anticorruption agency was created in 2013, and this past April the Cabinet recommended the legislature amend the anticorruption laws to stiffen the penalties for bribery.  But despite the enormous attention the drive to combat corruption has garnered, a September 2015 Supreme Court opinion again pointed to a gaping a hole in the Prevention of Corruption Act 1988, the nation’s basic anticorruption law, a hole that is easily repairable but that, until it is, makes convicting bribe-taking public servants far harder than it should be.

Why lawmakers have yet to seal the hole is a mystery. They have known about it since 2011, when the Supreme Court first exposed it.  It is an easy one to close, and until it is closed who knows how many civil servants will demand bribes with near impunity?

The hole is the result of the Supreme Court’s interpretation of the Prevention of Corruption Act.  In its September decision in Murthy v. District Inspector of Police, reaffirming a decision in a 2011 case, the Court held the act requires direct proof not only that a public servant accepted an extra-legal payment but that the acceptance was accompanied by an express demand for a bribe.

Murthy illustrates the ease with which that requirement allows an obviously corrupt official to escape conviction.  There P. Satyanarayana Murthy, Assistant Director in the Hyderabad Commissionerate of Technical Education, had allegedly told Mr. S. Jagan Mohan Reddy that Reddy would have to pay Murthy a bribe if he wanted to renew the license for his typing school.  Outraged, Reddy went to the police who set a trap for Murthy, giving Reddy marked bills to pay the bribe and sending a police informant along to witness payment.  As soon as the money changed hands, the police rushed in and arrested Murthy.

But the evidence adduced at trial never showed that Murthy had expressly demanded a bribe.  Reddy had passed away before trial, and the prosecution was thus without his testimony about an earlier meeting where Murthy had demanded the bribe.  What it did have was uncontrovertible evidence that Murthy had the marked money in hand when the police stormed in.  It also had the testimony of the police informant.  He explained that, when Reddy and he had met with Murthy, Murthy had asked whether Reddy “had brought the amount [Murthy] directed him to bring.”  The informant testified that Reddy then “took out Rs. 500/- from the pocket of his shirt and handed [it] over [to Murphy]. . . .” (slip opinion, p. 18).  To buttress the inference that the 500 Rs. was a bribe, the prosecution pointed to the circumstances surrounding its payment:  the money was not for a license, as the evidence showed Reddy had also paid Murthy the amount required for its renewal, and, in any event, by law Murphy was not authorized to accept payment of any kind.

That in the face of all this evidence, what many prosecutors would consider a slam dunk case, the Court dismissed the charges shows just how large the hole in the Corrupt Practices Act is. One can quibble, or even argue strenuously, with the way the apex court is reading the act (just as many argue with the U.S. Supreme Court’s rulings that a bribery conviction requires a quid pro quo be shown), and if the fix weren’t so easy, it might be worth commentators’ time to urge the Court to reverse itself.  But all lawmakers need do to plug the hole, and thus ensure that future Murthy’s don’t escape prosecution, is add language to the Prevention of Corruption Act making it a crime for Indian public servants to receive a gratuity, also termed a “tip” or reward, for doing their job.

Technically, such an amendment is simple. The following 47 words, adopted with only slight changes from U.S. federal law, would do the trick:

“No public official, former public official, or person selected to be a public official can, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demand, seek, receive, accept, or agree to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person.”

Politically, it is hard to see why such a provision would be controversial.  Public servants should not be free, as they are in India today, to shake down citizens for money so long as they don’t expressly say, or at least the prosecution can’t prove, that they expressly said that the shakedown was a bribe.  How could anyone argue they should?  Or survive politically if they did?

With such a law on the books, Murthy would not have gone free. Why would the Indian parliament hesitate another day before plugging the gaping hole that allowed Murthy, and has and surely will, allow others to evade conviction for taking bribes?  What are lawmakers waiting for?

5 thoughts on “Why Hasn’t the Indian Parliament Plugged the Gaping Hole in the Nation’s Anticorruption Law?

  1. I don’t know much about India, so this may be off base, or at least far too cynical, but could the explanation for the failure to enact such an amendment be the political power of the Indian civil service? Perhaps a ban on illegal gratuities would have a much greater adverse impact on their income streams than would any of the other anticorruption reforms you referenced in your first paragraph.

    • It is certainly possible that the power of civil servants is behind the failure to plug the gap. One of the great mysteries in developing states is the power of the bureaucracy. For most (all?) states that gained independence in the 20th century, the bureaucracy was far more powerful than the first generation of political leaders.
      But to the extent that power was based on expertise that the first generation of leaders lacked, one would think by now the political class had caught up. Add to that the power Indian citizens hold thanks to the ballot box and one would assume India’s civil servants would have little say over anticorruption laws. On the other hand, given the number of smart lawyers in India, it is hard to believe the failure to make the acceptance of gratuities a crime is the result of ignorance.
      Perhaps someone trained in political science and law should tackle the question.

  2. I see three potential reasons the Indian high court could have interpreted it that way, one of which could be legitimate.

    First, as implied by Matthew’s comment, there is the idea that they realize the large effect that this will have on fighting corruption and hesitate to be that aggressive.

    Second, they could actually believe there is an evidenciary issue when there is no proof that a bribe was demanded. Given the fact pattern you laid out in the post, that seems extremely unlikely as the case was quite slam dunk.

    The third possibility is potentially more legitimate: the fear of rampant entrapment in a society where many people, accustomed to a corrupt system, are likely to offer a bribe unprompted. While there may be many cases where a government official is clearly soliciting a bribe but avoiding punishment by not using the ‘magic words,’ there is a difference in culpability between that a a situation where an officer, honestly going about his/her business, is tempted when a petitioner offers a bribe. We may decide the only way to effectively fight corruption is to ban both equally, but I don’t believe that the Mens rea is the same in those cases.

  3. Thanks for the thoughtful comment and in particular for offering a rationale for the ruling in Murthy that had escaped me: fear of overzealous law enforcement.

    An easy way to address that concern would be to limit the punishment where the bribe recipient has been pressured to take the money. In those instances, the recipient might be discharged from office but not fined or imprisoned, the rationale being that we should demand of public servants that they should refuse to take a bribe even when pressured (or as U.S. law puts it, “entrapped”).

    An interesting post (hint, hint) would be to examine what courts have said about entrapment or pressure and culpability. From the little I know about U.S. law, acquittals for entrapment have rested on a revulsion with law enforcement tactics rather than any sense the recipient was less culpable than one who accepted money without pressure. Even if I am correct about U.S. law, what about the law of other nations?

  4. If a commentator were to take on the holding in Murthy, he or she would profit from a reading of American Supreme Court Justice Anthony Kennedy’s concurring opinion in a 1992 case interpreting the U.S. federal statute outlawing extortion —

    “The official and the payor need not state the quid pro quo in express terms, for otherwise the law’s effect could be frustrated by knowing winks and nods. The inducement from the official is
    criminal if it is express or if it is implied from his words and actions, so long as he intends it to be so and the payor so interprets it. The criminal law in the usual course concerns itself with motives and consequences, not formalities. And the trier of fact is quite capable of deciding the intent with which words were spoken or actions taken as well as the reasonable construction given to them by the official and the payor.” Evans v. United States,(Kennedy J., concurring).

    As Professor Lindgren observes in his article analyzing the decision in Evans (essential reading for anyone wanting to understand bribery, extortion, and their similarities and differences), the requirement that a bribe taker expressly state his or her wrongful intention to accept the money is an example of the Lawyer’s Fallacy: “people act as if they are creating evidence for lawyers to find later. It sees people cooperatively climbing into pigeonholes where lawyers [or judges] can easily find them.” “The Theory, History, and Practice of the Bribery-Extortion Distinction,” University of Pennsylvania Law Review, volume 141, 1993, p. 1734 [available at http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3659&context=penn_law_review%5D. Mr Murthy’s case offers one more example of why the fallacy is so harmful.

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