Important aspects of governance, transparency and accountability
Separation of powers between various organs dispute redressal mechanisms and institutions
How not to fight corruption?
The Prevention of Corruption Act (PCA):
It is the key legislation which defines what constitutes corruption and prescribes penalties for corruption-related offences
It is presently set to be amended by Parliament and the proposed Bill, now before a select committee of the Rajya Sabha, includes several contentious amendments that are likely to have far-reaching ramifications
The proposed amendments make all actual and potential bribe-givers offenders under the PCA
In India, it is a reality that people are forced to pay bribes even to get their basic entitlements like rations, pensions, education and health facilities— leading to being ‘doubly wronged’
In situations where the matter will be of life and death, a bribe might sound illegal but for the treatment or justice, this risk will be definite. Forcing people into this dilemma would only further the culture of impunity by dis-incentivising reporting of corruption by bribe-givers.
Proposed amendments to the PCA— A retrograde step:
Case of Immunity
The government needs to reconsider the above-mentioned points and offer immunity to at least three types of bribe-givers—
Those who are coerced to pay a bribe to obtain their legal entitlements
Those who voluntarily come forward to complain and bear witness against corrupt public officials
Those who are willing to turn approvers
For the second and third categories: Immunity should be provided only from criminal liability — bribe-givers must be made to return any benefit they secured as a result of the bribe. Providing immunity to these categories of bribe-givers would encourage them to complain about corruption and ensure that corruption is not a low-risk, high-return activity.
Need to put in place a comprehensive grievance redress mechanism—
The objective of combating coercive corruption would be more effectively achieved (can be remedied by the enactment of the grievance redress bill, which was introduced in the Parliament in 2011 and had support across party lines, but unfortunately lapsed with the dissolution of the last Lok Sabha)
Approval for investigation
The amendments state that complaints regarding corruption that relate to decisions taken or recommendations made by public servants in the discharge of their official duty, shall not be investigated without the prior approval of the Lokpal or Lokayuktas, as the case maybe. Such complaints shall be forwarded to, and deemed to be complaints made to the Lokpal or Lokayuktas.
To safeguard public servants who are in decision-making positions, so that they may take decisions without fear of harassment
Amendment to replace Section 6A of the Delhi Special Police Establishment Act (was struck down by the Supreme Court)
Section 6A mandated prior sanctions for investigation for officials of the rank of joint secretary and above
A confusing element— leading to unending litigation with respect to investigations pertaining to determining if a decision taken or recommendation made by a public servant has played a bigger role or not
The proposed amendments must either be dropped or
The complaints about all offences under the PCA shall be dealt with by the Lokpal at the Central level and Lokayuktas at the State level, for all categories of public servants covered in the respective laws.
Insulation of prosecuting agencies from government influence—
The amendments seek to increase the cover to even retired public officials
Requirement for seeking prior sanction from the government for prosecution— is a critical bottleneck and results not only in huge delays but also in the accused often never being prosecuted
The PCA must insulate prosecuting agencies from government influence
The Lokpal law has vested the power of granting sanction for prosecution in the Lokpal—wherever the procedure for granting prosecution is defined in the Lokpal or Lokayukta laws, it should be applicable
Cases wih no Lokpal or Lokayukta— an independent committee should be tasked with the responsibility of giving prior approval for prosecution
Need to operationalise the Lokpal Act and the Whistle Blowers Protection Act which were passed by Parliament more than two years ago (along with the PCA, form the necessary anti-corruption statutory framework)
Connecting the Dots:
Increasing the probability of detecting and punishing corrupt offenders by enforcing the anti-corruption laws impartially and reducing the delay in prosecuting offenders must be the topmost priority for the anti-corruption strategy of India. Discuss
Important International institutions, agencies and fora- their structure, mandate.
Bilateral, regional and global groupings and agreements involving India and/or affecting India’s interests
Italian Marines back home to Italy
The United Nations arbitration tribunal’s decision on the Italian marine’s case, announced on May 3, seeks to placate both India and Italy over a tragic incident that led to the death of two Indian fishermen off Kochi in February 2012.
The two Italian marines accused of shooting the fishermen have been suspended in a legal twilight zone, given the many complexities that envelop the incident, thereby resulting in a long festering bilateral dispute that has soured relations between New Delhi and Rome ever since.
What was the issue all about?
Two Italian marines positioned on board a merchant tanker, Enrica Lexie , had opened fire to thwart what they perceived as a pirate attack 20.5 nautical miles off Kochi.
It is further argued that the death of the two Indian fishermen occurred in the course of the discharge of their operational duties, and hence functional immunity could be invoked as related to the military personnel of any nation.
Even if charges of death by accident were to be prosecuted against the marines, this would have to be done within the ambit of Italian law and jurisdiction as harmonized with the UN Law of the Sea [UN Convention on the Law of the Sea (UNCLOS)].
India has steadfastly rejected this formulation and has invoked its sovereign right to prosecute the accused under the provisions of Indian law, thereby resulting in an impasse.
Divergence over jurisdiction:
India’s Point of View:
Within India, the case moved from the Kerala High Court to the Supreme Court with differing views among experts about the overlap between domestic law, the interpretation of sovereignty in territorial waters and contiguous zones as derived from the UNCLOS and how Centre-State jurisdiction was to be determined, given the distinctive nature of the entire incident which had a bearing on the prevailing global anti-piracy effort.
The National Investigation Agency took over the probe, but its insistence on invoking an anti-piracy law — the Suppression of Unlawful Acts against the Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 — led to further delay, as Italy objected to the implication that its marines were ‘pirates’, as well as to the death penalty that the Act attracted.
India asserted its sovereignty and sought to claim its sole jurisdiction in prosecuting the marines in a special court, but considerable time had elapsed and by December 2014, the case acquired an EU context.
In June 2015 Italy approached the International Tribunal for the Law of the Sea (ITLOS) in Hamburg
ITLOS rejected the Italian request that India return the marines provisionally – though one of them is currently in Italy on medical grounds, a temporary measure granted by the Indian Supreme Court.
Subsequent to the ITLOS ruling, both parties agreed that the dispute would be resolved under the UNCLOS tribunal, while the ground situation was that while one marine was in Italy (on medical grounds), the other (Salvatore Girone) was in India in the local Italian Embassy.
What happened when Italy once again aproached ad-hoc tribunal?
The tribunal order (May 3) has accepted the Italian plea and allowed the marine in India to return, but the wording is significant.
Order also advocated that Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant Girone so as to give effect to the concept of considerations of humanity, so that Sergeant Girone, while remaining under the authority of the Supreme Court of India, may return to Italy during the present Annex VII arbitration.
Outcome of such tribunal order:
This provisional order only addresses what has been termed by Rome as the “humanitarian” dimension of an intractable bilateral dispute between the two countries – and in many ways the bitterly contested legal haul has just begun.
The order allowing Sergeant Girone to return may seem like a legal setback to India’s attempts to bring the two marines to justice.
However, the order of the Arbitral Tribunal in the Permanent Court of Arbitration in The Hague has enough safeguards to ensure that Sergeant Girone will return to face trial in India in the event that it decides India has the jurisdiction to try him. Italy has given a solemn assurance to this effect.
The Judicial process should have been sustainable and credible from the beginning, instead of being marked by doubt and uncertainty.
India and Italy should cooperate, without further delay or diplomatic wrangling, in the interests of justice. The case must be settled on purely legal grounds, and without the kind of political one-upmanship that has contributed to the delay over the past four years.
Connecting the dots:
The recent order allowing Italian marines to return may seem like a legal setback to India’s attempts to bring the two marines to justice. Is it the case which falls under ‘Justice delayed is justice denied’ notion of Indian Judiciary? Analyze.