Anti – Corruption Law

1. Anti – Corruption Law RoshanDalvi Former Judge, High Court, Bombay

2. The crime problem is, in part, an overdue debt that the country must pay for ignoring, for decades, the conditions that breed lawlessness. - Earl Warren

3. IPC S.21 S.161 to 165A PC Act 1947 1952 1964 1988 History We enact many laws that manufacture criminals, And then a few that punish them. - Benjamin R. Tucker

4. Amendments • Definition of Public Servant – S. 21 • Offences – S. 7, 8, 9, 11 & 13 • Penalties enhanced – S. 10, 12, 14, 15 • Sanction – S. 19(1), (2) • Purpose • Final, if not challenged till trial • Day-to-day trial – S. 4(4), 22(b), 22(c) • Stay in Revision prohibited – S. 19(3) • Bankers’ books – S. 18 Laws are generally found to be nets of such a texture, as the little creep through, the great break through, and the middle sized are alone entangled in. – William Shenstone

5. Features • Court of Original Criminal Jurisdiction • [A.R. Antulay v/s R.S. Nayak (AIR 1984 SC 718)] • Remand • Gratification • Motive or reward • Favour or disfavour • In Cash or kind • For doing or not doing • For service or dis-service Provisions which are rigid in theory, Are frigid in practice

6. Features (Contd….) • Attachment of properties - S.102/105C to105J Cr.PC • Moveable, immoveable, tangible, intangible • e.g. flats, land, bank accounts, bank lockers, shares • Sealing, seizure • e.g. premises, books of accounts, documents • Freezing of bank accounts – S. 18 PC Act • Bankers’ Book Evidence Act • 1999 (7) SCC 685 State of Maharashtra vs. Tapan Neogi • Criminal Law (Amendment) Ordinance, 1944 • Including Ad Interim attachment (S.4) • Presumption – S.114(a) Indian Evidence Act • Res Ipsa Loquiter ?

7. Illustrations • The U.S.A. PATRIOT Act, 2001 • Made 52 amendments to BSA, 1970 • Within 43 days of 9/11 • Signed by President Bush on 10/26 • Criminal Justice Act, 1987 – U.K. • Set up SFO for serious economic crimes • FIRe

8. Over-reaching the Law • ATMs • HIV+ persons • Disposing off properties • Mala fide transfers Against one law-maker, there are a thousand law-breakers!

9. Enforcing the Law Advanced Electronic Gadgets in Investigation • Scientific evidence to have enhanced probative value • Taping of conversation • Sample telephone voice to be collected post arrest / trap • Care & caution in sealing tapes • Video recording of conversations / interrogations • Establish identity of the voice • Exhibit truthfulness of confessions, if any • Forensic Computing • Seizure of computers and securing data • Optical scanning techniques • Crime mapping

10. Enforcing the Law (Contd…) • Commercial sense • e.g. internet piracy, post office fraud • Teamwork with professionals, e.g. solicitors, accountants, bankers, stock brokers, media, management experts, investment bankers, insurers, capital market regulators, financial experts, economists, IT experts, SEBI officers. • Police/prosecutor integration • Information management • Private detectives / investigative agencies Attitude is a small thing that makes a big difference

11. Court Climate • Prioritising matters • Streamlining court procedures • 1st notice, draft charge • Weeding out redundant procedures • No evidence for certain documents • Mullah / Man • One trial per day • Granting costs for each adjournment • Teamwork with the police

12. Court Climate (Contd…) • Presumption • Adverse inference • Sec. 313(1)(a) Cr.PC • Proof beyond doubt • Sentencing policy • Court to consider the ground realities of modern day crimes • On conviction: • Definite deterrent sentence • Heavy fine / compensation Successful people don’t do different things; They do things differently.

13. Legislative amendments required Easy Enactment for Effective Enforcement • Inclusive definitions • Inclusion of family members/relatives • Sanction Mala fide transfers • Proof of documents • Documents seized from accused admissible without further proof • Commercial Documents Evidence Act to be amended for presumption of documents • Disclosure of defence • Examination of defendant/accused • Apprehension of transfer Law is what Law does

14. Desired Reforms • Summary procedure in some cases • Fast track Anti-corruption courts • Plea bargaining • Like voluntary disclosure scheme • High Interest rate • Extent of penalty / fine / compensation • Special courts, PPs,& IOs • One right of appeal and/or revision • Corporate Criminal Liability concept • Corporate mens rea (based on negligence and recklessness) • Corporate death penalty

15. Desired Reforms (Contd….) • Presumption that unexplained acquisition of money is a part of the funds alleged to be defrauded • Presumption against acquisitions by family members • Harmonising S.19 of the PC Act with S.319 of the Cr.PC • Whistle blowers to be encouraged and rewarded • Victim and witness compensation and protection schemes

16. Desired Reforms (Contd….) • Overcome problem of providing trap money by complainant • If complainant is found trustworthy, even if Panch turns hostile, conviction sustains • Media to publicise convictions and punishments • Mandatory minimum punishment • Confiscation / forfeiture by courts and restoration to rightful owners

17. Desired Reforms (Contd….) • Under-cover operations, media role • Immediate suspension • Benami Transactions of Govt. servants • Market value of properties • Privatisation, Decentralisation, market economy • Transparency of Govt. contracts • No need for notification, consent to register case

18. The biggest malaise • Sanction • Deemed sanction, if not refused • Deemed sanction if not given within 3 months • Not to be challenged once given ( only filteration process) • No sanction for trap cases or DA cases • No evidence of sanctioning authority • NO STAY

19. Preventive Aspects • Govt. Contracts [S.13(1)(d) of the PC Act] • All tenders on the website • Suppliers registered through internet • Electronic payments • Common portal for all sites • Adequate publicity for contracts

20. You must be the change you want to see in this world. - Mahatma Gandhi