Professional Documents
Culture Documents
11 - Chapter 2 PDF
11 - Chapter 2 PDF
where no mens rea is required and they are termed as public welfare
that the fear of the “world beyond” was eroded as a result there was a
9
decline in ethical, moral and spiritual values. This in turn brought the
love for material happiness and the greed for money irrespective of
from this lure for money, particularly in the upper and middle class
and further more because of lack of any concerted and organised public
all around us, and their grave consequences are obvious, a little attention
has been paid to the study of the genesis, prevention, control and
for criminal offences without the proof of mens rea in instances such as
4. Materials for this historical development is taken from F.B. Sayre, supra,
n.l.
10
wherein the Court of Exchequer held the respondent liable for having in
away with the requirement of mens rea for the petty police offences.
The Court of Queen’s Bench held that although the proceeding was
6. IcL, pp. 415, 416, Pollock, C.B. said :
“It appears to me that, in this case, it being within the personal knowledge
of the party that he was in the possession of the tobacco... it is not
necessary that he should know that the tobacco was adultered; for reasons
probably very sound, and not applicable to this case only, but many other
branches of law, persons who deal in an article are made responsible for its
being of a certain quality. If this were the case of provisions, or of any
matter that affected the public health, it would not be at all unreasonable -
to require persons dealing in them to be aware of their character and
quality, and to be responsible for their goodness, whether they know if or
not; they are bound to take care... In reality a prudent man who conducts
this business will take care to guard against the injury he complains of...
and he would not be exposed to. it. . If he examines the article, he may
reject it, and not keep it in his possession; or if he is incompetent to do
that, he may take a guarantee that shall render the person with whom he
is dealing responsible for all the consequences of a prosecution”.
11
criminal in form, in substance it was of a civil nature, and that therefore
adulterated food.11
criminal law principle by the courts are termed as “public welfare offenses”
9. Bishop, New Criminal Law, (8th Edn. 1892), 1076 quoted in Francis Bowes
. Sayre, “Public Welfare Offences”, 33 Col. L.R.55 (1933).
10. Supra, nn.5-9.
11. Fitz. Patrick v. Kelly. L.R.8 Q.B. 337, Hobbes v. Winchester Corporation,
1910 2 K.B. 471.
12. Oundv v. Lecocq, L.R. 13 Q.B.D. 207 (1884)
12
by Francis Bowes Sayre,13 who classified the said offenses as follows :
13
(7) Violations of motor-vehicle laws.
his narrow definition of public welfare offences. The time has come
dimension and extended to cover all activities that affect national health
or wealth.
14
One thing noteworthy about white collar crime is that it
instances.
associates;
personnel.
15. IsLp.218.
15
Upper class persons who commit white collar crimes are
of the lower class primarily consisted of burglary, robbery, rape and other
(iii) Rebates
16
(vii) Violations of special war regulations, and
with white collar crimes do not require any mens rea. Hence jurists
like Jerome Hall does not recognize white collar crimes as real crimes
17. Jerome Hall, General Principles of Criminal Law. (2nd Edn. 1960), p.326.
18. Donald R. Taft & Ralph W. England. Criminology. (4th Edn. 1964), p.200.
17
expressed that there is no basic differences between the nature of ordinary
collar offences is the relatively high status of the offenders but the criminal
criminals.19
18
everyday occupational activities, violate the basic trust placed in them
or acts in unethical ways. Crime is neither the way of life nor the
For example :
controlling members. :
19
(e) In the Medical Sector : Illegal prescription practices,
of Korean Minister for bribery, fall of Italian Government, and the present
21.. Sri Prabhat Chandra Tripathy, “The Menace of White collar crimes and
need for a new code” 1997 cri.L.J. p. 33.
20
crime-polluted atmosphere in India are the glaring examples of white-
collar crimes which have shocked the human conscience and made the
common man lose faith in the “Rule of Law”. In this present devastating
road to ruin, the character, morality, ethics and, virtues seem to have no
and again, and the prevailing corruption has assumed wide ranging
resources for the selfish enrichment of the powerful persons, the judicial
system and law enforcing agencies of the country exhibit their helplessness,
as the existing legal system does not provide proper protective measures
but act remains under-neath, deep rooted not being disastrous to the
.the exchequer. In the fifties just after independence of our . country, the
21
term “white-collar crime” was generally understood to be the crimes
related to tax evasion which were not necessarily being committed either
day such crimes are not now restricted to crimes of monetary concealment
origin but still it is very difficult to obtain, statistics about the various
the existence of such crimes... white-collar crime affects the whole moral
22
position in their arena or field establish an example which tends to
erode the moral base of the law and ethics and provides an opportunity
frustration, discontent and displeasure with the system among the people
and youth in special, tend towards erosion of moral values and becomes
locality and the tit bits of the offence is discussed in public with interest
24. Girija Shankar Sharma, “The HI-FI Crime and it’s Criminal” 2000
S.C.J (3)13 at p.14.
23
He is described as a successful businessman and nothing is focussed
crimes are born out of sheer greed, avarice, or caprice and are non-
the idea that these crimes are of lesser importance. That is why the
offenders.
would complain.
be satisfied viz., (1) person must have respectability and high social
24
status and (2) the crime must be committed in the course of his
be brought within the purview of white collar offence unless all the
and the other may not be satisfied. This case be explained through an
illustration.
Illustration
25
crimes has paralleled a similar trend not only in business communities
nature and scope and has spread beyond business and trade frontiers
and has also penetrated into the civil servants and other men in high
profession. Hence it is not proper and useful to use this term to denote
between the crime and the occupation, for example, a doctor evades
a whole and not merely of the individual victim. In the same fashion,
economic offences are those which affect the country’s economy and not
26
a tendency to erode the national health, character and economy in equal
and perhaps more measures and sometimes have transnational roots too.
27
5. Mode of operation of crime is through fraud, but not force,
• ’ and
2. Evasion of taxes,
28. IsLp.3.
28
The Law Commission dealt in detail the
specifically.
29
B. CORRUPTION AS A PIVOTAL OF SOCIO
ECONOMIC OFFENCES
bureaucracy.31.
provided capital punishment for the priest or official who accepted bribe
for taking bribe in the ancient laws of Jews, Greeks, Romans and
30
services rendered, was the rule. The payment to the Judge by the parties
for rendering justice was also a matter of course. This “paved the way
to the sale of justice to the highest bidder”. When a judge was permitted
favour of the party which could pay the judge adequately. This practice
led to corruption and such corruption gave birth to the notion that it
and that every officer of the State was expected to decide in accordance
with law and his conscience and not in accordance with the magnitude
jurisprudence and the concept of Rule of Law which were more or less
2. Causes of Corruption
33. Sir Hari Singh Gour, Penal Law of India. 7th Edn. 1963, Vol.I, p.760.
31
the formal and informal rules governing behaviours in the public sector,
value conflicts in the post colonial settings where the standards and
According to him -
the rents under a public official’s control (M), the discretion that official
has in allocating those rents (D) and the accountability that these official
Kaufmann and Jeffrey Sachs suggests that there is a complex set of the
law and safeguards for the rights of property), civil liberties, governance
32
and economic policies as also characteristics like the size of the country
which seem to play an enabling role for corruption.36 Along these lines,
the World Bank points out both institutional, and economic policy factors
provide scope for it and where institutions of restraint are weak. The
. problem of corruption lies at the intersection of the public and the private
opportunities for corruption and rent seeking and the public institutions
credible restraint.
36. See also Asia Foundation Working Paper Series on Corruption prepared by
Amanda L. Morgan, Consultant Asia Foundation, page 50.
33
gaps create opportunities for middlemen or the actors of
corruption;.
advantage by bribing officials and they very much admire the corrupt
wealthy men.37 They never hate the corrupt officials, boycott the local
because of their illiteracy, ignorance and poverty. They are gained over
system, the law of the land and the present order of the country It is
branch of social system and how it has crushed our valuable social
factors38:-
37. Basudev Panda, Indian Bureaucracy - An Inside Storv. (1st Edn. 1978), p. 18
38. N. Vittal, Corruption in India : The Road block to National Prosperity, (lst.-
Edn. 2003), pp. 19-22.
34
(i) Economic Factors : The principle of mixed economy,
trade and business. State authority more or less controls almost 60 per
cent of its business deals. It has control over the matters of finance
collection of sales tax and commercial taxes, issue of quota for raw
materials, issue of licences and permits for import and export, and to
facilities.
parties thrive on trying to capture power. The leaders of the party, who
they remain busy for some personal and party gains during their tenure
of office. They try to acquire the heavy sums of money which they
henchmen. For all these they exploit their authority and position, depend
35
nepotism. During elections the public try to extract the maximum from
the candidates and. they follow the policy of “No Vote without. Note”.
All these have broken the old social order and have cruelly destroyed
totally un-suitable for our boys and girls. Added to this is the corrupt
university campuses.
in our country, the needs of the people have increased ten-folds. Every
and enjoy the fruits of modernity. But as the resources are limited and
39. I<Lp.23.
36
(a) Emulation of high officers in respect of modem amenities.
husbands corrupt.
vital role in our social fabric. But due to complexities of the present
some form or other has also entered into the religious institutions and
has eaten away their, vital organs. There are wide-spread scandals in
3. Factors of Corruption40
37
three factors. The first is the set of individual’s sense of values, the
second , is the set of social values which are accepted by the society as
are two broad elements which determine the extent of corruption or the
lack of probity in the public life : (I) the social roots of Corruption and
view the family is the basis of our society. The joint , family and caste
are only the extended versions of the family. The joint family might
have been eroded in recent times especially in the urban areas but the
boost because this seems to have become the basis of our entire politics...
From “casting our votes” in the first election in 1952 we have come to
corruption.
enough not only for himself and his lifetime but also for his children,
38
grand children and perhaps seven generations. That is probably the
wealth is accumulated.
corruption is the dowry system. Every public servant wants, to see that
his daughter is married off well and there is continuous pressure for
why ohe comes across cases where even public servants who have had a
clean life, towards the end of their career become vulnerable to corruption.
country.
the government policies about affirmative action for self financing colleges
39
who charge a lot of donation money and most of it is collected in
black..
public life in the well-being of the people. The voter who considers
issues could be tackled more effectively and the benefits would be much
58,000 crores non performing assets in the banking sector, a VDI scheme
punishing the honest tax payer with a 40 percent tax and so on.
corruption.
41
(d) The political capacity of the excluded population to protest
(f) Hence, the media, and the press in particular, are vitally
our acquisitive society, where people are Judged by what they have rather
than what they are. The possession is sine qua-non of life. Apart from,
price level more than five fold of pre-second world war level without
42
4. Corruption Various Meanings and Definitions
“An act done with an intent to give some advantage inconsistent with
official duty and the rights of others. It includes bribery, but is more
against Law as, a contract by which the borrower agreed to pay the
his duty and the known rules of honesty and integrity.45 According to
Cowel, bribery is a high offence, viz., when any man in Judicial place or
any great officer takes any fee, pension, reward, or gift for doing his
office, save from the kind only.46 Bribery is a penal offence generally
43. See The Randam House Dictionary of the English Language, The Unbridged
Edition (1964), p. 328.
46. Cowel, quoted in Stround’s ludicial Dictionary. 3rd ed.,. Vol.I p.335.
43
There are a number of judicial decisions dealing
the complainant but actually had done disservice in his official capacity,
44
Supreme Court in State of M.P v. Ram Singh—,
the form of contracts, licences and grants. Even after the war, the
control of the public servants, giving them a wide discretion, with the
45
also been termed as royal thievery. The socio-political system expose to
not only , anti people* but aimed arid targeted. against them. It affects
the economy and destroys the cultural heritage. Unless nipped in the
vibrating society.”53
cases under the prevention of corruption Act, 1988, which itself treats
46
A division bench of the Supreme Court in State v.
of the society. The citizens lose, their faith in the political leaders who
shout that they are for the people. No doubt many people go unpunished
greed and lust one must be drenched in shower of honesty and the
foundation of sublime lover should sprinkle the magic drops on the eyes
for the reality of the life. Unless one tries to find a golden key to open
the gates of wisdom, the heavenly life remains as a myth and we are all
making the futile effort to attain divinity in our life. The public man
should have crystal clear and transparent personality. Caesar’s wife must
be above suspicion”.
public servants not only leads to corrosion , of the moral fabric of .the
47
society but also harmful to the national economy and national interest,
country and bring together every citizen who wants to fight corruption.
advantage for those who actively and passively are parties to the misuse;
48
undersirable effects on third parties; and secrecy surrounding the
and the bureaucracy, in police, in the election process and in the private
have provided the biggest, most publicized and most dramatic cases of
democracy.58
which deviates from the formal duties of a public role because private
58. Dr. G.B. Reddy, “Corruption in High Places - Judicial Response in India,
' (2001) A.L.T. 20 (Jou).
59. J.S. Nye, “Corruption and Political Development : A Cost Benefit Analysis,
American Political Science Review LXI (June, 1967), 419.
49
5. Types of Corruption
routine “services”. .
“advantage”.
6. Political Corruption61
60. Garima. Prashad, “Bribe-Givers and Bribe-Takers are both guilty”. Lawz,
September, 2001, p. 11 at p.14.
61. Prof. Rega. Jagan Mohan Rao, “Political Corruption”, paper, presented at
the National Semianr on “Law and Corrupion in India”, Sponsored by U.G.C.
. held on 21st & 22nd March, 1998, organised by University College of Law,
Kakatiya University, Warangal, A.E, India.
50
parliamentary democracy in particular”, so said Dr. B.R. Ambedkar.
for high ranking political corruption ranging from former Prime Minister,
The following are few scams which have seen the light of the day. They
are:62
51
g) Indian Bank Scam h) J.M.M. pay off case
from least corrupt to the most corrupt. India ranks 73 out of 102
money to party funds will try to compensate their loss through dubious
52
politicians is one of the greatest reason why standard of law enforcement
7. Judicial Corruption65
way of life. Apart from many scandals involving; the Judges of High
Courts and the Supreme Court, the case of Justice Rama Swami, was
unique in the annals of Indian Judiciary. Three Judges held the enquiry
against him for charges of corruption and found him guilty; on the basis
of India; but the motion failed due to political manoeuvre of the ruling
party. The manner, in which the whole sordid and dismal affair was
conducted, shows the attitude of the ruling party. People have lost faith
in the honesty and impartiality of the Jidiciary and they feel that with
institutionalised.
65. . M.S. Rahi, “Corruption and its Effects on Social Life” 2002 cri.L.J.267 at
p.270. ■
66. Arun Beriwal and Roopali Chaturvedi, “Judicial Corruption and Removal
of Judges’, A.I.R. 2003 Journal 349.
53
• The mysterious involvement of Mysore High Court
them.
Rajasthan High court, who was found seeking sexual favours from a
Development Authority.
public morality that has seeped into our Judicial system and are also a
pointer to the fact that even the presiding -. deities of Higher Courts are
not immune from the glamour, glitter arid galloping corruption in the
society..
54
The third conference of the Chief Justices and
17'9'2004, the Prime Minister, Dr. Manmohan Singh said that the
confidence of the litigating public could be sustained only if, apart from
efficient and effective Justice, there was a firm belief that the Judgement
must be Judged by the conscience and oath to their office i.e., to defend
and uphold the constitution and the laws without fear and favour. Any
must be prevented”.
55
8. Evil Effects of Corrutpion
menace spreading its evils far and wide. . As a social problem corruption
citizen in his country’s institutions, its elite, politicians and civil servants.
are taken in terms of monetary gains rather than with the worthwhile
a way of getting things done. This way of getting things done violates
on all sides the values of legalism and it contradicts the very basis of
legality. If you have the resources to effect a “Barter”, breaking the law
56
who dare to follow rules rather than dictates or rank exploitation are all
good administration is a condition precedent not only for our fight against
poverty, hunger, disease but also, for the very preservation of our hard
in India, the very meagre rations that we get are adultered. Even the
70. Upendra Baxi, The Crists of the Indian Legal System. (1st Edn. 1982),
pp.8 and'22.
57
The Government has been either ignoring or belittling
that there might be petty corruption at the lower levels, whereas the
higher circle of the services were “worth their weight in gold”. There
are two standards of judgement, one for the poor individuals and the
other for those who are in power. A peon may be prosecuted and
punished for accepting a bribe of one rupee for allowing a visitor, who
facie liable for corruption in high offices, and when prosecutions are
what is the impact of the society over this? There, is a persian proverb
which says, “when the ruler of a country takes a pinch of salt without
payment, his Officers loot the whole country. If any minister thinks
58
that what he does in secret is not known to his staff, he is living in a
fool’s paradise”.74
has been rather, rare in the English system, the same could not always
between the Revolution and the end of Queen ANNE’s reign witnessed
much corruption even in the highest official circles. It was during this
charges of bribery and even the great Marlborough.75 could not rise above
1621, Lionel Granfield in 1624, and Sir Thomas Parker, First Earl of
75. Lord Chief Justice of The King’s Bench in Ireland and then in .England .
quoted in Encyclopaedia Britannica, Vol.14, p.922.
59
The offence of bribery was a common law
Apart from common law, several statutes have been passed by the British
1949. The 1916 Act increases the maximum penalty in certain cases
77. . Halsburv’s Laws of England. 3rd Edn. Vol.10, p.616, see also Archbold,
Pleading. Evidence arid Practice in Criminal Cases. (35th Edn. 1962), para
3483, and J.W. Cecil Turner, Russell on Crime. (12th Edn. 1964), Void,
p.381.
60
practices that interfere with the freedom of elections such as treating,
corruption was quite rampant and even a Governor like Robert Clive
dropped and they were acquitted.80 The East-India Company Act, 1793,
be for the use of the party receiving the same, or for or pretended to be
for the use of the said East India Company, or of any other person
80. P.E. Roberts, History of British India. (3rd Edn. 1964) pp.143-148 . &
216-219.
61
law and punished as such...” There was a provision for the forfeiture of
the present so received or its full value and imposition of fine under the
with its domestic legal system and within its means to provide
81. H.R Varshni. Law of Bribery and Corruption. (1st Edn. 1953):, pp. 7-8.
62
(a) Establishing procedure for the physical protection of such
adequate means.
(4) The provisions of this article shall also apply to victims insofar
(5) Each State Party shall, subject to its domestic law, enable the
63
3. Protection of reporting persons84 :
treatment for any person who reports in good faith and on reasonable grounds
faith, each State Party shall take measures, in accordance with the fundamental
64
the right to initiate legal proceedings against those responsible for that damage
the parties, led to abuse and sale of justice to the highest bidder. This
state of affairs continued till the force of public opinion gathered such a
required of a public servant, for the first time found formal legal
of bribery and corruption were already there on the statute book in IXth
the above Code was considered deficient and ineffective to fully meet
the challenge and cope with the new criminality. Even otherwise the
above mentioned Code was a general penal code and did not provide
65
any special machinery for effective control of these offences. In
the evil.88 This Act was a sort of an . Emergency Law as. could be
inferred from the statement of objects and reasons given below :89
had been enormously increased by war conditions and though the war
is now over, opportunities for corrupt practices will remain for considerable
Government surplus stores are being disposed of, there will, for some
of very large sums of Government money, have been and are being
elaborated. All these activities offer wide scope for corrupt practices
extension in the future are such to justify immediate and drastic action
to stamp it out”.
89. Published in the Gazette of India, dated November 23, 1946, Part V, p.374.
66
116745
and
terms of reference of the committee was “To suggest changes in the law
• 116745
90. Report of the Committee on Prevention of Corruption, Ministry of Home.
Affaris, Government of India, 1964, quoted in Twenty-Nineth Law
Commission Report, 1966, p.l.
67
The committee in its report opined :
Code and. Prevention of Corruption Act 1947, the procedural law in the
and some special rules of evidence relating to such cases in the Prevention
investigation have disclosed that certain changes in the law are required
retired Chief Justice of the Mysore High Court) as the first vigilance
91. Id-> p.53, para 72 & 73 as quoted in 29th Law Commission Report* 1966,
p.l. ■“
68
foreign exchange etc., were also passed. The amending Acts increased
1964 (amending the Indian Penal Code 1860, The Criminal Procedure
Code 1898, The Prevention of Corruption Act 1947, and The Criminal
to light several omissions and loopholes in the Indian Penal Code and
definition of the term “public servant”, the president, secretary and all
Act 1947 which debarred police officers below the rank of Assistant
the purview of this Act. Persons charged with bribery have been able to
69
should be specifically put in a different category and the powers of the
Supreme Court and High Courts under Art. 32 and 226 respectively
these evils are called for. The Committee’s scope of study was limited.
Mr. Sreenivas Rao came to the conclusion that without tackling political
70
misappropriation of public funds, (7) Trafficking in licences, permits,
the most important tasks before every government. From time to time
the Government of India has been taking legal steps to combat the
virus of corruption.
corruption totally but in vain. But still the Government using the law
or even to control the grave evil of bribery and corruption corroding the
71
piece of legislation because it not only contains important provisions of
(Amendment) Act, 1952 but also SS. 161-165A of the Indian Penal
with the object to prevent the evil practice of corruption more effectively.
Act, 1988. Thus, this Act of 1988 was enacted with the above mentioned
*2* al#
vf*
72