Caught In The Act

Honesty and fairness is something that is preached by all, seldom practised by anyone, yet all of us are always content to hear about it. A phenomenon not just recent but encountered and studied even 250 years ago by Kautilya in his magnum opus the Arthaśāstra, wherein he concludes that bribery and corruption can never be done away with completely.

The Department of Economic Affairs, Ministry of Finance, has initiated the ‘Working Paper’ series to make available to the Indian policymaker, as well as the academic and research community interested in the Indian economy, papers that are based on research done in the Ministry of Finance and address matters that may or may not be of immediate concern but address topics of importance for India’s sustained and inclusive development. The renowned economist, Kaushik Basu who is the C. Marks Professor of International Studies and Professor of Economics and Director, Program on Comparative Economic Development at Cornell University, and who also happens to be the Chief Economic Advisor to Government of India, Ministry of Finance recently came out with a white paper that popped out the eyes of many. What I would call as downright frank and candid, the paper is titled ‘Why, for a Class of Bribes, the Act of Giving a Bribe should be treated as Legal.’

Basu’s assessment of the contemporary situation concerning corruption in India, threw fresh light on matters which we would otherwise prefer to shove under the carpet. Taking the discussion ahead from where Kautilya last left us at, Basu suggests measures to curb corruption. The main argument of this paper is that such a change in the law will cause a dramatic drop in the incidence of bribery. The reasoning is simple. Under the current law, once a bribe is given, the bribe giver and the bribe taker become partners in crime. It is in their joint interest to keep this fact hidden from the authorities and to be fugitives from the law, because, if caught, both expect to be punished. Under the kind of revised law that Basu seeks to propose, once a bribe is given and the bribe giver collects whatever she is trying to acquire by giving the money, the interests of the bribe taker and bribe giver become completely orthogonal to each other. If caught, the bribe giver will go scot free and will be able to collect his bribe money back. The bribe taker, on the other hand, loses the booty of bribe, his job and faces a hefty punishment.

Suggesting an overhaul in anti-corruption law base advisedly says that under the new law, when a person gives a bribe, she will try to keep evidence of the act of bribery, perhaps a secret photo or will jot down the numbers on the currency notes handed over and so on, so that immediately after the bribery she can turn informer and get the bribe taker caught. The upshot of this is not that the bribe taker will get caught but he will not take the bribe in the first place.

Presently in India, the main law concerning bribery is the 1988 legislation called the Prevention of Corruption Act, 1988. According to this law, bribe taking by a public servant and bribe giving are equally wrong and, in the event of conviction, both are punishable by anywhere between 6 months and 5 years imprisonment and they shall also be liable to fine. For the most part, the act of giving and taking a bribe are treated on par under this law. As always an exception however is to the bribe giving or abetment law in the form of Section 24 of the Prevention of Corruption Act 1988 which reads that “Notwithstanding anything contained in any law for the time being in force, a statement made by a person in any proceeding against a public servant for an offence under sections 7 to 11 or under section 13 or section 15, that he offered or agreed to offer any gratification (other than legal remuneration) or any valuable thing to the public servant, shall not subject such person to a prosecution under section 12.” This proviso is however is not free from doubt. In the 2008 judgment of Bhupinder Singh Patel, Delhi High Court ruled that this exemption would apply only if the bribe giver could establish that the bribe was given unwillingly and in order to get the public servant trapped. But the word ‘unwillingly’ is itself so ambiguous that the use of this judgment as precedence is not easy either, result being, Section 24 is increasingly becoming a clause meant for those wanting to carry out a sting operation to trap a public servant in the act of bribe taking and seeking protection from the law.

The obvious fall out of this radical change that Basu admits is that once it is completely clear that a bribe giver has immunity from our bribery law, it is true that many more people will be willing to give bribes. However, he is quick to add that, since, every time a person gives a bribe, after that it will be in the interest of the bribe giver to expose this act of corruption (since by that not only will he not be punished but he will be getting back the money that he gave as a bribe) the bribe taker will not want to take the bribe. Since the crime cannot occur without both sides, the giver and the taker agreeing to undertake this act, the fact of greater desire on the part of the bribe giver to give a bribe under the new law will be of little consequence.

The paper predicts that the end result will be a sharp decline in the incidence of bribery. Though this paper was received with great scepticism, with great many quick to distance themselves from this bold step, I strongly feel it is worth the try. After all, admitting something is a first step towards mending it.