Monday, September 14, 2009

Chief Justice of India for Assets Confiscation in Corruption Cases

NEW DELHI: Taking note of the demands for enhancing penalties and punishment under the Prevention of Corruption Act, Chief Justice of India K.G. Balakrishnan on Saturday appeared inclined in favour of a statutory provision for confiscation of assets of persons convicted of offences under the PCA.

“The rationale behind the same is that if a public official amasses wealth at the cost of the public, then the state is justified in seizing such assets. [But] Similar enactments under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Properties) Act, 1976 in case of persons arrested under detention laws have not proved to be very successful,” he said.

Such proposals needed to be thoroughly examined for constitutional compatibility before they were legislated, Justice Balakrishnan said addressing a two-day national seminar on “Fighting Crimes Related to Corruption,” organised here jointly by the Central Bureau of Investigation and the National Institute of Criminology and Forensic Science.

Shortage of courts

Procedural delays in granting sanction and difficulty in marshalling a large number of witnesses were the major hurdles to achieving meaningful convictions. Anti-corruption agencies were already finding it difficult to grapple with 9,000 pending cases due to shortage of designated courts.

“It is necessary there should be a speedy manner of granting sanction. The prosecution becomes ineffective if the sanction is granted after 6-7 years.”

The Chief Justice also expressed concern over the fact that the CBI, instead of basing its case on solid witnesses, was relying on a large number of witnesses in corruption cases, and thus the trial was prolonged for three to four years.

Referring to the PCA, he said the foremost criticism of the law was that an investigating agency, in order to initiate prosecution against a public servant, needed to obtain prior sanction from the competent authority which was delayed or denied.

“Even in instances where the investigating agencies have gathered substantial material to proceed against a person, it is felt that the necessary sanction is not given on account of extraneous considerations.”

The CJI said there was need for separation of the CBI’s prosecution and investigating functions. “I understand that there has been considerable resistance to this suggestion, since investigating officers and prosecution lawyers need to work in close co-ordination. The real problem here is that the CBI has been relying on government law officers and standing counsel to conduct prosecutions, whereas there is a need for retaining a regular team of lawyers."

Source - Indian Express


NEW DELHI: While coming down heavily on corruption, the Chief Justice of India, K G Balakrishnan, said on Saturday that the Prevention of Corruption Act (PCA) provision asking investigating agencies to seek permission from higher authorities for prosecuting accused public servants could be contributing in creating a "climate of impunity" where the requisite sanction is either delayed or denied because of extraneous considerations.

He emphasized that it is not the quantum of punishment but the certainty of punishment which proves to be an effective deterrent against corruption and how it was important to address the issue of obstructions in the investigation and trial process.

"Even in instances where the investigating agencies have gathered substantial material to proceed against a person, it is felt that the necessary sanction is not given on account of extraneous considerations. In many cases, aggrieved parties have approached the higher judiciary when the requisite sanctions have been denied despite the production of incriminating materials," he saidd.

Addressing a seminar on corruption organized by CBI and National Institute of Criminology and Forensic Sciences, Balakrishnan said corruption in some cases can be a threat to national security. He cited the example of how smuggled arms and explosives were used for the 1993 Mumbai blasts.

The CJI said there might be a case in near future for the higher judiciary to grant effective constitutional remedies in respect of instances of corruption, over and above the statutory remedies provided by the PCA. "In recent years, several instances of corruption by high-level officials have been recorded by the higher judiciary in the exercise of their writ jurisdiction, but the same do not amount to convictions and hence effective punishments could not be given. Therefore, our deliberations should focus on how to strengthen the investigation and prosecution of corruption cases, so that the courts of first instance are able to improve the conviction rates."

He, however, also cautioned that any proposal to amend the PCA must be thoroughly scrutinized for its constitutional compatibility before it is enacted in the form of legislation. "One prominent suggestion is the inclusion of a statutory remedy that will enable confiscation of properties belonging to persons who are convicted of offences under the Prevention of Corruption Act. The rationale behind the same is that if a public official amasses wealth at the cost of the public, then the state is justified in seizing such assets. Similar enactments like SAFEMA in case of persons arrested under detention laws have not proved to be very successful," he said.

He also spoke on the "controversial issue" of separation of prosecution functions from the investigative functions of CBI saying the agency needs a specialized and dedicated team of lawyers. He asserted that CBI relying on government law officers and standing counsels to conduct prosecutions was the real problem.

Source - Times of India

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