The exisitng 'Prevention of Corruption Act 1988' does not have provision for forfeiture of properties of the accused when convicted. Justice Jeevan Reddy's report on 'The Corrupt Public Servants' bill recommended provisions for exactly such a forfeiture of properties of the accused. Based on this report, Loksatta has prepared a draft for the ammendment that allows for seizure of properties of the accused and his relatives. However, there were a couple of disturbing things that begged more analysis.
The problem with the seizure of property is that it is difficult to prove that the said properties are acquired by corruption. Even if the charges of corruption are conclusively proven, it is impossible to differentiate the monies that are acquired by corruption from other monies acquired or held through other illegal means. In the Law Commission Report, Justice Reddy recommended transfering the burden of proof to the accused - to show why all the unaccounted monies are not acquired by corruption. Also, as often times, these unaccounted properties are held in the names of relatives, the recommendation applied to those assets as well. The justification for this transfer of burden of proof was drawn from the existing laws of 'Smugglers and Foreign Exchange Manipulators Act 1976' (SAFEMA) and 'Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974' (COFEPOSA), which were subsequently put in the ninth schedule of the Constitution. SAFEMA had provisions to seize properties from accused and their relatives, and placed the burden of proof that the seized properties are not legitimate on the accused. The forefiture of properties also applied to detainees of COFEPOSA, where persons can be detained under some circumstances as a preventive measure. Justice Reddy's report has drawn from these existing laws to recommend similar approach to forfeiture of properties in cases of corruption.
Obviously, this presumptuous nature of SAFEMA was questioned in the Supreme court which upheld its constitutionality. It was elaborated that the idea is not to forefeit the independent (illegal or otherwise) properties of the relatives of the accused that they may have obtained independently, but to reach all the properties of the convict traceable to him, whether in his name or not. It is to be noted that only the Competent Authority, CA takes a decision on which properties are 'traceable' to the convict before issuing forefeiture notices. And the strength of link between the accused and an associate's properties has to be listed out, but need not be proven in court to proceed further.
Not surprisingly, there have been cases where SAFEMA was unjustly applied to forefeit properties that had a weak or a non-existent link between themselves and the convict. In such cases, the just Judges and the court system has questioned the strength of such a link, and the CA's reasons to forefeit the independent properties (illegal or otherwise) which are not traceable reasonably to the convict. Effectually, the courts were overseeing the CA's procedures. Inspite of this, Justice Reddy's report recommends that the Law should apply when the CA has 'reasons' to believe that the properties are held on behalf of the convicted.
Loksatta's draft deviates from Justice Reddy's report in some measure. The report recommends extending the application to persons holding illegally acquired properties; the burden of proof is transferred to the accused to only prove why the properties are not illegally acquired. LSP draft advocates transfering the burden of proof once a prima facie case (of corruption) is established; and that there would be a presumption of guilt. In other words, there is a leap from trying to reach all the properties of the convict, in his name or not to assuming his guilt. The concept of burden of proof about legality of properties is morphed into the burden of proof in a criminal case. While this may not be the correct intrepretation of the draft, the use of words is not explicit enough. Justice Reddy's recommendation on forefeiture of all properties illegally acquired, by placing the burden of proof on accused, could still be implemented without need to tie this into the criminalisation of corruption. There is an excessive reliance on the CA to be fair, and a reliance on the Judiciary to oversee these matters. Also, this Law is more suited to western countries with effective investigation and Justice, rather than to India. When corruption has spread even to the Judiciary, it might be prudent to reconsider some aspects of the draft, while there are also other great legislative measures in it.
Corruption is more than one thing - cronyism, graft, bribery, patronage, extortion, etc. And using one tool to fix different bolts is inefficient. When atleast one of the parties is not a willing participant, using civil law is a reasonable solution; as the standard of proof in civil law is not as rigorous as in criminal law. There is a danger of inviting trivial civil cases on public officials and going the USA's way of suing for everything; but a moderated approach can be helpful. If I am asked a bribe by a public official, the current system does not allow me to put a civil case on him, where the standard of proof is easier; and it becomes incumbent on the accused to also come up with a reasonable defense. Conviction in such civil cases can be used to take stringent action on the official, including imposing a fine. In cases where both parties are willing however, greater transparency and the other solutions proposed by the draft are applicable. Such cases beg for better whistle blower protection laws. There is a great likelihood of atleast one honest person being the witness of such corruption, and the law should reward him or make it easier for him to set the law into motion. Bryane Michael's working paper [9] on this issue offers a fresh perspective on these issues and is definitely worth a read.
While Loksatta's draft has some nuances that are outwardly unclear and objectionable, by and large, this is a good measure to bring more discussion on the subject. Seizure of properties is a just thing and it is possible to formulate laws in line with SAFEMA. However, excessive reliance on the fairness of one institution undermines the checks and balances that are essential to liberty.
Links
1. http://www.persmin.nic.in/EmployeesCorner/Acts_Rules/PCAct/pcact.pdf
2. http://www.loksatta.org/cms/documents/corruption.pdf
3. http://lawcommissionofindia.nic.in/101-169/Report166.pdf
4. http://exim.indiamart.com/act-regulations/cofeposa-1974.html
5. http://www.geocities.com/indiancustoms/act/safema.htm
6. http://www.indiankanoon.org/doc/1089522/
7. http://www.indiankanoon.org/doc/690722/
8. http://www.unodc.org/unodc/en/corruption/index.html
9. http://www.qeh.ox.ac.uk/RePEc/qeh/qehwps/qehwps150.pdf
10. http://www.policyinnovations.org/innovators/people/data/bryane_michael
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