Economic Survey calls for amendment to anti-graft law

New Delhi, Feb 26 (IANS) The 2015-16 Economic Survey on Friday recommended amendments to the anti-corruption law, pointing out that civil servants in the recent past were reluctant to take decisions primarily due to certain statutory provisions.

“There is a widely held perception, both within the civil service and outsiders who interact with the government, that civil servants have in recent times become increasingly reluctant to decide issues quickly and firmly… this has consequences for the economy,” the survey said.

The survey said it can be stemming from “gaps in capacity, training and specialised knowledge in dealing with certain kinds of economic issues” as well as rigorous “external oversight mechanisms”.

However, the survey said, the most important reason for this non-decision making at bureaucratic level is “certain provisions in the anti-corruption law the way they have been used in recent years”.

The survey recommended amendments to the Prevention of Corruption Act, a bill for which is pending in the Rajya Sabha.

“Good public administration and sound policy-making requires that public servants take decisions in public interest and, in particular, without fear or favour (a phrase which finds place in the oath of office for ministers).”

“There is a credible perception that well-intentioned but draconian legal provisions seeking to prevent decision-making with favour, seem to be resulting in decision-taking with fear. Some provisions of anti-corruption law seem to scare the honest without deterring the corrupt,” the survey said.

Highlighting the shortcomings of the Prevention of Corruption Act, the survey said that in a bid to tighten the anti-corruption law, the new PCA added a provision in Section 13(1)(d)(iii) according to which a public servant is said to commit the offence of criminal misconduct if he/she, while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.

“Because the definition does not include words like ‘corruptly’ or ‘wrongfully’, this offence has no requirement of mens rea or guilty intent – it is an ‘absolute offence’.

“Since the law does not require the public servant to have had any improper motive, even a benefit conferred inadvertently is sufficient to be prosecuted. For example, suppose an honest public servant makes, in good faith, an error of judgement and undervalues an asset which is being disinvested,” the survey said.

It also questioned whether public interest was served by this approach, and said “in tackling corruption, two kinds of error may arise – Type I error where the corrupt may escape; and Type II error where an innocent person may be falsely accused of corruption”.

The survey said an “extremist approach” to reducing Type I increases the chance of a Type II error.

“From an economic point of view, the loss to the public from the Type II error and the policy and implementation paralysis it promotes, is far larger,” the survey said calling it a “draconian section” which is hurting the public more than it is helping.

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