Old laws & corruption
WE owe a lot to some of the laws enacted by the British rulers. Macaulay’s Penal Code 1860 and Sir James Stephen’s Evidence Act, 1872 are acknowledged masterpieces. The Government of India Act, 1935 had enormous influence on constitution-making in Pakistan and India. However, tucked away in many a nook and corner of legislation of the Raj era are provisions which the British craftily made to protect their officials.
These laws were in glaring contrast to the legal set-up in Britain itself. The great authority on the constitutional law of Britain, A.V. Dicey wrote: “With us every official, from the prime minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority.”
One is not sure about the legal position in Pakistan; but in India the curbs of the British era were retained in the laws adapted after Independence. The adaptation was selective.
One remarkable provision in the Government of India Act, 1919 was quietly dropped by the British when they conferred autonomy and responsible government on the provinces of British India and was completely ignored by the framers of the constitutions of Pakistan and India.
Section 124 reads thus: “If any person holding office under the Crown in India does any of the following things, that is to say — (1) if he oppresses any British subject within his jurisdiction or in the exercise of his authority; or if (except in case of necessity, the burden of proving which shall be on him) he wilfully disobeys, or wilfully omits, forbears or neglects to execute, any orders or instructions of the secretary of state; or if he is guilty of any wilful breach of the trust and duty of his office; or if … he is concerned, or has any dealings or transactions by way of trade or business or if he demands, accepts or receives … any gift, gratuity or reward, pecuniary or otherwise, or any promise of the same … he shall be guilty of a misdemeanour.”
A web of legal provisions was carefully drawn to deter the citizen. Clause 23(2) of the General Clauses Act 1897, a statute applied to the interpretation of all laws including the constitution, says that “a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not”. Every single legislation thereafter provided that “no suit, prosecution or other legal proceedings shall lie … in respect of anything which is in good faith done or intended to be done by … person under this act”.
Every single statute made by the parliament of free India, incorporated this sweeping provision. Thus no criminal prosecution or civil suit for damages can lie for negligent exercise of statutory power even if it deprives the citizen of his liberty or rights or does damage to his property or business. It is patently violative of the fundamental rights to equity and to personal liberty and equal protection of the law.
In contrast Section 52 of the Penal Code (1860) says: “Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention.” So, when charged with lack of good faith, the Indian subject of the British Crown was required to demonstrate that he was not negligent. But the official of the Raj had only to prove absence of malice; negligence regardless. The legal position was not changed in republican India.
A sweeping protection was provided in addition to this. Section 197 of the Criminal Procedure Code 1898 provided that where any public servant is accused of any offence alleged to have been committed by him, “while acting or purporting to act in the discharge of his official duty”, no court shall take any cognisance of such offence except with the previous sanction of the government, central or state, that employed him — in effect, the authority competent to remove him.
The prime minister or the chief minister will decide whether or not to sanction a prosecution against a cabinet colleague even if, as in most cases, he was himself privy to the wrong and shared its profits. In 1982, the Supreme Court ruled that when a chief minister is to be prosecuted under the Prevention of Corruption Act 1947, the governor would, in according the sanction, necessarily act in his own discretion and not on the advice of the council of ministers headed by the chief minister himself.
It is a well-recognised principle of criminal jurisprudence that anyone can set the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary.
The question remains — why is the fundamental rule of criminal law on the citizen’s right to prosecute for crime not applied in an independent democratic state. The courts are not powerless to punish, and thus deter, frivolous or vexatious complaints. The same holds good for civil suits.
A corrupt minister cannot act alone under the rules of business. He needs a civil servant or two as an accomplice to write the desired note to protect him. Since misdeeds add to the ruling party’s coffers, the head of the cabinet is also involved. Do we expect him to allow the civil servant or the minister to be brought to book in a court of law where he is likely to expose the whole conspiracy?
Corruption cannot be banished from public life unless and until the protection extended to the corrupt by colonial laws is removed.
The writer is an author and a lawyer.