Will ********** Basu's suggestions work?
While the country debates the issue, TR Raghunandan shares his views on whether decriminalizing bribes is a viable option that we should be considering right now.
Recently, Dr. Kaushik Basu, Chief Economic Advisor in the Ministry of Finance put out a paper titled ' Why, for a Class of Bribes, the Act of Giving a Bribe Should be Treated as Legal'. Dr. Basu suggested that giving a bribe should be legalised for 'harassment' bribes; for example, those where government officers delay or refuse to provide citizens their entitled services unless bribes are paid. He argued that in circumstances where citizens pay bribes under duress, they ought not to be considered as abetting the crime and should be immune from criminal liability. He believed that if the law is amended accordingly, then large numbers of people would come forward to complain against the corrupt.
Dr. Basu might have instead walked into a bull ring with a red handkerchief sticking out of his back pocket. The flurry of news articles and talk shows that followed were largely critical and suffused with righteous indignation. Some of the controversies arose because Dr. Basu’s choice of words – ‘legalizing bribery’ - was easily misinterpreted. Had he suggested that the act of giving bribes in certain circumstances should be de-criminalised, the criticism of his paper might have not been that strident. Sadly, between all the harrumphing there was little discussion on the actual contents of his paper
Economists focus on suggesting what might be the right institutional design that incentivizes the right response. Dr. Basu’s suggestions need to be examined on merits from that angle alone, shorn of any fruitless exploration of what his motives might be.
Though at first sight Dr. Basu’s suggestion seems audacious, it is often overlooked that we already have a legal provision that decriminalizes bribe giving. Section 24 of the Prevention of Corruption Act says that a statement made by anybody that he offered a bribe to a public servant shall not subject him to be prosecuted for abetment of corruption under Section 12 of the Act. On plain reading that looks sufficient. However, Dr. Basu disagrees. He believes that judicial interpretation has ( he relies upon two judgments of the Delhi High Court ) narrowed the scope of Section 24 only to cover cases where individuals participate in trapping of corrupt officials. He believes that an amendment to Section 12 to specifically exempt cases where people have succumbed to 'harassment bribes' will subtly, but significantly change the game of corruption. Then, when an official demands a harassment bribe, he will be aware that the bribe giver can, after paying a bribe, immediately lodge a complaint. He will also be aware that the bribe giver knows of the legal protection he has. Thus, Dr. Basu predicts, the corrupt indulging in harassment corruption will be less inclined to do so and the bribe giver more inclined to complain.
There is no doubt that Dr. Basu has crafted a nuanced, well-articulated and logical argument. However, translating his suggestions into practice might be a tricky proposition, possibly not worth the effort. If what one wants is that more citizens ought to complain about corruption, plenty can be achieved by highlighting to them the protection that Section 24 already offers. A plain reading of Section 24 makes it clear that an individual who pays bribes is protected if he complains. Dr. Basu’s view that it is too narrow to amount to anything might be unduly pessimistic; after all, the Judgments of the Delhi High court are, well, just judgments of the Delhi High Court - they are not the law of the entire land yet. Moreover, tweaking Section 12 to specifically exempt victims of harassment corruption from the crime of abetment is difficult. How exactly should that translate into a legal provision? How would you satisfactorily define 'harassment'?
Lastly, even if the law accurately articulates the change of the incentive structure suggested by Dr. Basu, it might not have the same pointed effect that he predicts. Why is it that we do not have enough complaints coming through, even under the umbrella of protection offered by Section 24?
Our analysis of citizens’ reports on ipaidabribe.com, an initiative of Janaagraha, reveals that people often pay bribes not only because these are demanded, but also because they are advised accordingly. An analysis of citizen’s experiences on corruption in land registration showed that victims are often advised by their relatives or middlemen to pay bribes, to avoid 'trouble'. Thus there is a push factor too that enables corruption to flourish. Harassed people display a depressing willingness to be harassed, rationalizing their submission as the only sensible and practical response. Given this inertia, it is unlikely that people will flock to complain against corruption, even if the law were changed as Dr. Basu suggests.
The answer lies in spreading awareness about the protection that Section 24 already provides to citizens. If many complain that they were forced to pay bribes to avoid harassment, and claim immunity under Section 24, then the Courts might widen their interpretation to provide blanket cover for bribe givers in harassment bribes. A court crafted definition of harassment corruption might emerge; providing exactly what Dr. Basu wants – the right legal structure to disincentivise corruption.
T.R. Raghunandan Spokesperson, ipaidabribe.com Janaagraha Centre for Citizenship and Democracy.