India has been scoring poor rankings in the global corruption index. The rate of conviction in corruption cases in India is abysmally low. Even among the convictions, the vast majority are bribery cases involving low-level bureaucrats in the government and other public services. This explains our failure as a nation to fight the evil.
The stringent conditions for proving demand and acceptance, as well as recovery of the bribe money, have made prosecution in corruption nearly impossible — especially when those who accept bribe do not oblige the law enforcement authorities by leaving adequate proof behind. There are no receipts issued for accepting bribery. The difficulty to prove bribe-taking, in fact, acts like an incentive to demand and take more bribes.
There is, in fact, need for a paradigm shift in the approach towards corruption cases. So, subject to certain conditions being fulfilled, the onus of proving innocence must rest with the accused, who should be presumed guilty until proven innocent. The current approach of presuming someone innocent until proven guilty has been abused so much that we need a new approach to fight corruption.
The law has to take into account the incremental moral degradation afflicting our society. The moral values that the law makers presumed for the subjects are no longer applicable today and, therefore, the laws have to reflect those changes. The current set of laws were drawn up on the basis of ethical standards of a bygone era, which lost much of its relevance today. We need living laws capable of equalling the challenge of innumerable smart ways in which a morally-decadent society can dodge conventional morality and systems.
In the changed situation, the tendency to become corruptible must be taken as the rule and honesty as an exception, rather than the other way around, which has been the essence of conventional jurisprudence. Experience shows that honesty commands a premium as people in authority are more likely to abuse their position, rather than act honestly. The inability of the current laws and systems to make the corrupt accountable only serves as encouragement to indulge in more and more violations.
It is sickening to see probes into scam-after-scam ending up in smoke as the charges flounder on lack of evidence as required by an archaic system incapable of cracking corporatized corruption. More often than not, it is the abuse of the ‘innocent until proven guilty’ approach that frustrates punishment, rather than the absence of guilt. The failure of the system to nail the culprits in cases such as the 2G Spectrum scam and others only encourages the corrupt.
In fact, the exoneration of all the 2G Spectrum accused has now led to a situation in which probe into any new scam is stonewalled with the outcome in that case. Our system of reddressal is so slow that it will be ages before the legal process can correct the error and can catch up with the culprits. By that time, the con artistes would have performed many more scams of even bigger proportions.
Ironically, a new amendment brought to the anti-corruption laws has provided greater leeway to the 2G Spectrum accused to defend themselves. The new law describes criminal misconduct as misappropriation or conversion for a person’s own use, any property entrusted to a public servant or amassing assets disproportionate to known sources of income. It does not take into account public servants giving pecuniary benefit to anyone else. Given that there are several innovative ways of fielding proxy beneficiaries, this has in reality opened up the floodgates for the unscrupulous. In contrast, the old law had defined criminal misconduct as an act by public servants of using illegal means to enrich themselves by abusing their official capacity.
The 2G accused, including former telecommunications minister A Raja, have now claimed that since they had been charged for conducts that are no longer defined as offence in the amended laws, the CBI appeal against their exoneration is not sustainable. It is anybody’s guess as to how much more time it takes for the case, already almost a decade old, to reach a conclusion.
If this is the case with one of the most ‘celebrated’ corruption cases of independent India, leading to a tectonic regime change, it is not difficult to imagine the fate of routine cases.K Raveendran is a senior journalist. Views are personal.