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?