Introduction:
Indian economy becomes 6th largest economy in the world panned outing the reduction in red tape and bureaucracy in India because of economic liberalisation. Though the growth has been uneven in both the social and the economical groups which resulted as poverty in the country. Uneven distribution of wealth gives rise to endemic corruption. In India, corruption is treated as social phenomena. No area of activity is free from corruption and many people have accepted it as a way of life. Soul and heart of people are polluted from the thirst for wealth and power, their vision has become corrupted from frustration and desire which result as the root cause of corruption. Presently, all the countries are the victim of corruption which prevails in there both political and administrative wings. During recent years in India, it has assumed a frightening proportion of corruption from top to bottom, centre to local every office or organization of government has become corrupted. In the present political system, the common man has become a scapegoat. Since people have lost their faith in the existing system they have their last option which is judiciary as it acts as an independent body. To curb the menace of corruption the judiciary must take initiative and necessary steps. Application of judicial review and judicial activism by the Supreme Court and the High Court’s is a good gesture of hope to set derelictions.
Rights
The only reason to affirm on human rights, right to transparency, good governance and a right to free from corruption transform the Supreme Court of India into Supreme Court of Indians. The Supreme Court has stated that howsoever high an individual maybe, but the Law is above an individual, it is also stated in Article 14 of the Constitution of India that everyone is equal before the law.
Indian Legislation Against Corruption
To combat corruption, the plethora of laws has been incorporated which include both pre and post-constitutional laws, centre and state laws these are:
Indian Penal Code, 1960
The main criminal code of India is the Indian Penal Code, covers all substantive aspect of criminal code. Criminal conspiracy[1]means when there is an agreement between two or more person to do an illegal act or to do legal act with illegal means. It constitutes when there is a joint evil intent to commit a crime. Section 120 D of the code provides for punishment for the attempt and states that anyone guilty for an attempt to commit a crime under this code is punishable for imprisonment for life or with imprisonment for a specified term. A person is said to be guilty of Criminal misappropriation when such person dishonestly misappropriates or convert any moveable property into his use, then that person is liable for punishment of with imprisonment of a term which may extend to 2 years or with fine or both. Criminal breach of trust constitutes when a person dishonestly misappropriates and converts the property which was entrusted to him by violating any law. Such person shall be punishable with imprisonment of for a term which may extend to three years, or with fine, or with both. Cheating is an offence under section 417 of IPC when any person dishonestly or fraudulently deceive any person to deliver any property or to give consent to retain any property or deceive any person to do or omit to do any ac which will result in harming that person mind, reputation and property.
Prevention of Corruption Act 1988
The first special legislation in India against corruption was enacted in 1947 in the year of independence. But many provisions of that Act were overlapping with the provisions of Indian Penal Code. Therefore, in 1988 the prevention of corruption Act was enacted with the object to amending the existing anti-corruption laws. It outstretches the definition of the public officer mentioned in IPC and also with such definition it also includes cooperative society’s office-bearer who receives financial aid from the government, employees working in universities, banks and public service commission. Six months of imprisonment to the public officer who takes gratification in respect of his official act other than legal remuneration. Imprisonment for six months minimum and maximum imprisonment of five years or fine, if a public servant without paying for valuable thing accepts it or paying inadequately in his official capacity to a person with whom he is involved in a business transaction. But to prosecute a public official or public servant before a sanction is necessary to be obtained from central or state government. In M. Karunanidhi Vs. Union of India[2], it was held by the Supreme Court that a Minister, Prime Minister and Chief Minister, is decided by a public servant in terms of clause (12) of Section 21 Indian Penal Code, 1860 itself, which coincides with Section 2 (c) (i) of the Prevention of Corruption Act, 1988. In Habibulla Khan Vs State of Orissa[3], the court held that section 21 of IPC does not cover M.L.A in the definition but M.L.A comes under the purview of section 2 of Prevention of Corruption Act, 1988.
Social, political and economic is considered as a goal of justice laid down in the preamble. The principle of social justice is one of the main concepts on which our preamble is based on. To promote social justice, the judiciary can promote it while delivering their judgment. In Bandhu Mukti Morcha vs. Union of India[4] it was held by the Supreme Court that based on strict legal principle only the court proceeding shall be decided. It shall not be influenced by emotional appeal. The court must not trespass into the area which is reserved for the executive and legislative and executes its judicial function within its jurisdiction. In many cases, the Supreme Court had declared that judiciary is independent and it is considered to be one of the basic features of the constitution. Though our constitution promotes independent judiciary but nowhere is it defined that what constitutes independence of the judiciary. According to scholars independence of judiciary means when judge discharge its function in an unbiased manner free from all the external factors.
Investigation
As per the Indian Constitution, India is a union of states, crime comes under the purview of state list in which only the state has the right to legislate. Therefore, the State agencies are under obligation and it’s their responsibility to investigate and prosecute the crimes, including corruption cases, which occurs within the territorial jurisdiction of the State. Apart from States, there are certain territories, known as Union Territories, which are directly administered by the Government of India if there is any corruption case in such territory the Government of India has set up the Central Bureau of Investigation. There are certain agencies established to probe corruption cases in India which are outlined below:
- Anti-Corruption Bureau of States
Under the Prevention of Corruption Act, 1988 Anti-Corruption Bureau of States is established to investigate corruption cases within the states. These police agencies are responsible only to investigate, prevent and detect corruption cases and not to discharge other duties. After investigating the crime they launch a report for prosecution in a court of law.
- Lokayuktas
Lokayukta, the office of ombudsman was set up in many states with the sole aim to inquire or probe complaints against ministers and public servants involved in corruption.
- Central Bureau of Investigation (CBI)
To investigate cases especially corruption cases in union territory CBI was established by the government of India. Under the Indian Constitution, the High Courts of various States and the Supreme Court of the country have powers to entrust the investigation of any crime to the CBI for investigation.
Supreme Court on Corruption Cases
In 2014 and 2012 a public notice was declared from the side of Supreme Court that political governance and executive administration conspiracy acted in 2G Spectrum case, Coalgate scam. In Coalgate scam[5] supreme court ordered the mine owners that within 6 months they have to wind up their business and vacant the land, 214 licenses of 218 mines were cancelled on the ground that license was illegal and arbitrary and also for their bids transparent process were not followed. Only four licenses were granted in favour of Coal India Limited (CIL) and National Thermal Power Corporation (NTPC) and direction was issued against the licensee to pay Rs.295 per ton of coal they extract and also for the coal they have already extracted from the blocks they have to pay the same amount per tone i.e. Rs. 295. In 2G Spectrum Scam (2010), several directions were issued by the Supreme Court for effective investigation against the certain minister and other bureaucrats. In Vineet Narain Vs. Union of India[6] supreme court had to consider two questions firstly, that for activating the investigation which was under the executive weather judicial review would be the effective instrument and secondly, in such situation is there any judicial remedy. The Supreme Court to ensure effective investigation by the state agencies evolved many new principles and has exhibited excellent judicial acumen and issued many guidelines on “judicial integrity”. In-State of Madras v. A. Vaidyanatha Iyer[7], the Supreme Court concluded that unless the contrary is proved by it shall be presumed that gratification was accepted or received by him as a bribe. But with time judiciary said that firstly, beyond a reasonable doubt it has to be proved that the accused has demanded the gratification and secondly, after proving the demand of gratification the role of statutory presumption comes into play. Without proving the demand for gratification by the accused the charges cannot be framed.
Trial by Special Judges Only
According to section 3 of the Prevention Corruption Act, 1988 the trial of cases falling under the Prevention Corruption Act 1988 can e dealt only by the judges designated “Special Judges”. “Sessions Judge” (SJ) or “Additional Sessions Judge” (ASJ) are appointed by the government among serving senior judicial officers, required to become an ASJ is to hold a degree in law and minimum of seven years’ experience as a practising advocate in a court of law is the minimum criteria for ASJ. Through a competitive examination, the selection is made. After serving as an ASJ for about 15 to 20 years ASJ is promoted to the rank of Sessions Judge. The Act requires holding a trial on a day-to-day basis, Special Judges. Section 5 of the Act laid down the power of the judge which is to grant pardon on the condition of that the person has to make full and true disclosure of all the facts and circumstances related to the commission of that offence and persons involved in the same, including him or herself.[8]
Conclusion
In India, adequate law is there to curb corruption in the public sector. The Prevention of Corruption Act, 1988 is an exhaustive law covering all the aspects of corruption and corrupt practices by public servants. Apart from this Act, India is also a signatory to the United Nations Convention against Corruption (UNCAC). The sole idea for having a democratic government is that coequal and separate branches provide the balance among one another, which results in reducing the abuse of power and the potential for corruption. However, the need for the independent judiciary can be acknowledged with all permutations and combinations by the doctrine of separation of powers. Role of the judiciary as the independence of the judiciary rests upon the following points as it checks the functioning of the other organs. According to the provisions of the constitution, it ensures that all the organs of the State function within their respective areas Judiciary acts as a watchdog. Judiciary acts as a guardian of the constitution and also helps in securing the doctrine of separation of power.
References:
[1] Section 120, Indian Penal Code 1960
[2] 1979 Crl.L.J.773: AIR 1979 SC. 898
[3] 1993 Crl. L.J. 3604.
[4] 1984 (1) SCC 161
[5] 2014 (9) SCC 614
[6] 1998 (1) SCC 226
[7] AIR 1958 SC 61 at p. 65.
[8] https://www.unafei.or.jp/publications/pdf/RS_No77/No77_12PA_Jain.pdf accessed on 04th August 2020 at 01:00 p.m
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