Should Capital Punishment abolished??

Ever since the enactment of the Indian Constitution in 1950, public awareness of problems with death penalty and prevailing legal standards have evolved significantly. India is said to be one of the most liberal and open countries in the world and our constitution is a testimony to this very fact.

In dozens of countries, democratic governments in the course of conducting a major review of their national constitutions have decided to curtail, if not abolish, the death penalty. In national systems and as a matter of international law, it is increasingly recognised that the death penalty has no place in a democratic and civilised society. India is sovereign, secular, and democratic. And yet, it is astonishing that India is one of the few, to be exact, 54 countries in the world, which still embraces the concept of capital punishment or the death penalty.

Through this paper, I shall try to study and summarize the debate on death penalty in India and try to come up with arguments as to why it is inhuman and unconstitutional.

The practice of capital punishment has always been a part of the Indian Judicial system. It was incorporated onto the IPC (Indian Penal Code) right from the beginning in 1860. Similarly, it was also present in the Criminal Procedure Code (1898). According to Section 367 of the CrPC, a person convicted of murder was to be sentenced to death. And this was to be the general rule, not an exception. The interesting point to be noted is that right from the days of the British rule, there has been a strict opposition to the enforcement of capital punishment. For example, in 1931, Gaya Prasad Singh, a member of the Legislative Assembly introduced a Bill in the Assembly which proposed to abolish the death penalty in the country. However, it was overturned. Even after Independence, there have been several attempts, both inside and outside the Parliament, to force the abolition of the death penalty. During the drafting of the Indian Constitution between 1947 and 1949, several members of the Constituent Assembly expressed the ideal of abolishing the death penalty, but no such provision was incorporated in the Constitution. Of these efforts, those by Prithviraj Kapoor, a member of the Rajya Sabha, in 1958 and by Raghunath Singh in the Lok Sabha in 1962 are noteworthy. Even in the contemporary times, there have been strict oppositions against death penalty. Unfortunately, such voices are heard only when the sentence is about to be executed.

In 1974, there came into force a new CrPC (Criminal Procedure Code). One of the major features of the new code was the overturning of the old ruling regarding the death penalty. According to the new code, for all offences involving murder, life imprisonment was to be the norm. The death penalty was to be awarded only in exceptional circumstances. Between 1975 and 1991, about 40 people were executed. On April 27, 1995 Auto Shankar was hanged in Salem, India. Since 1995 only one execution, that of Dhananjoy Chatterjee in August 2004, has taken place.

The Article 20 of the constitution, which deals with the Fundamental Rights of life and liberty, states "No person shall be deprived of his life or liberty except according to procedure established by law." Thus, it can be seen that the death penalty is verily upheld by the Indian Constitution. However, the same article, rather the same sentence, upholding two views at opposite ends doesn't stand too well with the spirit of the constitution. That is, even though it is logically consistent, it is against the spirit of the Constitution.

Another important provision regarding the capital punishment is the Presidential power of pardon. This appears in Article 72 and states that "The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence….. (c) in all cases where the sentence is a sentence of death." The objective of this article is to ensure that there be an authority beyond the Supreme Court to help the innocent if in case the Supreme Court, being a human institution has committed an error.

The Indian Penal Code (IPC) provides for capital punishment for the following offences, or for criminal conspiracy to commit any of the following offences (Section 120-B):

1. Murder (s.302) and murder committed by a life convict (s. 303). (Though the latter was struck down by the Supreme Court, it still remains in the IPC)

2. Abetment of a suicide by a minor, insane person or intoxicated person (s.305)

3. Threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person (s.195A)

4. Perjury resulting in the conviction and death of an innocent person (s.194)

5. Treason, for waging war against the Government of India (s.121)

6. Abetment of mutiny actually committed (s.132)

7. Attempted murder by a serving life convict (s.307 (2))

8. Kidnapping for ransom (s.364A)

9. Dacoity [armed robbery or banditry] with murder (s.396)

This situation has been prevailing without being properly questioned ever since the nation gained independence in 1947. As the world moves away from the use of death penalty, I think it is high time that India too should review this and abolish the system of Capital Punishment, as Gandhi righteously said "An eye for an eye leaves the whole world blind."

The Indian State argues that the presence of such a punishment will instill a sense of fear and will act as a system to deter future criminals, and will safeguard the society against rising criminal and terrorist acts. Public opinion, also often supports retention of the death penalty based on the erroneous view that it deters violent crime. It is upto a limit right from the point of view of the general public- criminals like Auto Shankar (a serial killer from our very own Chennai) should be given Capital Punishment, though it is from a narrow viewpoint. However, it has been comprehensively proved by studies that this is not so; that the death penalty is as effective in the deterrence of crime as an ordinary life imprisonment.

In refusing over the years to declare the death penalty unconstitutional, the Supreme Court has relied on the fact that those framing the Constitution did not see fit to abolish capital punishment, and that the legislature has subsequently not done so. In turn, the failure of the Supreme Court to strike down capital punishment has become the rationale for the State to deny any need to re-examine the relevance of death penalty provisions in Indian law or to abolish the punishment.

The arguments for abolishing the death penalty are numerous and they remain forceful and persuasive. State killing condones violence and brutalizes society. The ever present risk of the execution of the innocent is enhanced by an unsafe judicial system. Disadvantaged sections of society - usually the poor and minorities - are disproportionately at risk of execution. The death penalty asks public servants - prosecutors, judges, prison guards, etc. - to betray their humanity and be involved in the brutal act of taking the life of a prisoner rendered defenseless, and no longer a threat to society, via their incarceration. The trauma and loss suffered by the family of the victim (in murder cases) is inflicted in turn upon the family of the person being executed, thereby continuing the cycle of violence. Thus, I would like to conclude that judicial state killing has no place in the modern world and that India should abolish the death penalty as soon as is practically possible.

Right To Recall

Should we have the right to 'recall' MPs? It can be done in America, why not here? Few of us had heard of recall until 2003 when California Governor Gray Davis lost the recall ballot to the 'governator', Arnold Swarzenegger. The idea is simple, as a Civitas online briefing proposed yesterday. Sometimes voters regret the choice they made at the last general election and do not want to wait until the next time. If a proportion of the electorate (say 20%) can be persuaded to sign a petition to recall the elected office holder, then an immediate by-election must be held.

There is cross-party support. Back in February 2008 a group of 27 Tory MPs wrote to The Daily Telegraph calling for local voters to be allowed to 'recall' their MP and at the weekend Lib-Dem leader Nick Clegg came out in favour.

How common is it? In America 18 states allow elected officials to be recalled from their posts by a petition of between 12 and 40 per cent of voters. In 1903 the city of Los Angeles was the first large area to introduce recall, followed in 1908 by Oregon and in 1911 by California. Then Arizona, Colorado, Nevada and Washington all adopted recall in 1912. In addition eleven more states, while not permitting recall of state-level officials, do allow the recall of local officials.

Recall ballots are useful in precisely the sort of situation that has now arisen in the UK. We are told that MPs have acted within the rules, but few voters think they have behaved ethically. Some may have to face criminal charges but it is likely to be difficult to reach the high standard of proof required in a criminal trial, as disgraced MP Derek Conway found. Some will face the wrath of their local constituency party, but as Luton MP Margaret Moran discovered, that may not mean very much. If a significant number of voters think their MP is not fit to hold public office, then it should be possible to require them to stand for re-election immediately.

The process should not be too easy to prevent constant harassment by disgruntled rivals but, if a significant proportion of the electorate wants a ballot, it should be held. How many signatures should be required? In ten of the 18 American states 25 per cent of the electorate is needed, while Louisiana requires 33.3 per cent and Kansas 40 per cent. At 12 per cent, California has the lowest requirement. A recall ballot is a costly procedure and has been used sparingly. Only two state governors have ever been recalled: North Dakota Governor Lynn Frazier in 1921 and California's Gray Davis in 2003.

However, it was not for lack of trying: one study estimated that there had been around 40 failed attempts to recall state officials in California.

If the policy were introduced in the UK, how many signatures should be required? There should be a significant hurdle, perhaps about 20 per cent of registered voters in a constituency. The average constituency size in England is about 75,000 voters and so a petition of 15,000 would be needed. The number is achievable without being too easy. In practice the procedure would probably not be used very often, but the fact that it was available would have a salutary effect on MPs and the 'gravy train' mentality that can only flourish amidst secrecy would be no more.

If MPs would like to prove themselves deserving of respect, voting for recall ballots would go a long way to restoring public confidence. Electorate has no Role in the Selection of Candidates. The Common Wealth Parliament Association debated the matter and considered the right to recall as a strategy for enforcing greater accountability of Parliament to the people. People are disillusioned with the conduct of Parliamentary business.

The very process of legislative functioning is subverted, leading to incalculable harm to the representation of democratic institutions.The National Commission to Review the Working of the Constitution has pointed out in its report how a Parliamentary system, unlike the Presidential system, lays emphasis on accountability.

Half a century’s experience of the working of the Constitution has brought to the fore several inadequacies, failures and distortions. The National Commission referred in particular to the emergence of the unhealthy role of money and mafia power and to criminalisation, corruption, communalism and casteism.

The Electorate has no role in the selection of candidates for election and the majority of the candidates are elected by minority of votes under the first-past-the-post system.

Referendum and Recall

Democracies can be of several types : Parliamentary, Presidential and Direct. In a direct democracy, sovereignty is lodged in the assembly of all citizens who choose to participate.

Such an assembly may pass executive motions (decrease), make law, elect and dismiss officials and conduct trials. In a representative democracy, sovereignty is exercised by a subset of the people, elected periodically, but otherwise free to advance their own agendas. Direct democracy deals with how citizens are “directly” involved with voting for various laws, instead of voting for representatives to decide for them. Referendum and recall are pillars of direct democracy.

People at large are conferred the power in a referendum to decide whether a given law should be scrapped. They have a veto on government legislation.

Recall is a procedure by which voters can remove an elected representative from office. It was one of the major electoral reforms advocated by leaders of the Progressive moment in the US during

the twentieth century.

This movement was less than successful because in the US recall elections are prohibited in the federal system. Recall is a political device designed to enable voters dissatisfied with an elected official to replace him before the expiry of his term of office. The concept originated in Switzerland but became operative in several American States since 1903.

American Experience

Eighteen States in the American Federation permit recall elections to remove their State Officers. In 1921, North Dakota’s Governor Lin Frazier was recalled over a dispute about state-owned industries. In 2003, the Californian Governor, Gray Davis, was recalled over mismanagement of the Stage budget. In many of these States, the petition for recall must identify some form of malfeasance or misconduct while in office. The minimum number of signatures of voters and time limit to qualify a recall varies between States.

Quite often, a recall triggers a simultaneous special election, where the vote on the recall and the replacement — recall succeed — are on the same ballet. In 1988, there was a successful petition-drive to recall the Arizona Governor. But before the completion of the process, he was impeached and removed from the Office by the Senate.

Recall in Canada

Canadian provinces have been effective using the device of recall to infuse discipline in the representatives. The Canadian province of British Columbia enacted representative recall in 1995. The voters in that province can petition the Government to have a sitting representative removed from office.

Even a Premier presently leading a Government can be removed from office if enough registered voters signed the petition.

A by-election will follow. In January 2003, a record 22 recall efforts were launched.

Venezuelan Constitution

The 1999 Constitution of Venezuela enables a recall of any elected representative including the President. Article 72 of the Constitution declares that all offices filled by popular vote are subject to revocation. When half the term of the office has elapsed, voters representing at least 20 per cent of the registered voters in the constituency may petition for the calling of a referendum to revoke the mandate of the official.

When the number of voters equals to or is greater than the number of those who elected the representative vote in favour of the recall, the representative’s mandate shall be deemed to have been revoked. Action will be taken to fill the permanent vacancy as per the Constitution. The provision for recall was successfully utilised in 2004.

Switzerland model

Switzerland is often cited as the strongest example of modern direct democracy. It has put to use the initiative and the referendum at both local and federal levels. Initiatives are proposals, drafted by a citizen or group of citizens that by virtue of attaining a requisite member of signatures on a petition, are put to the electorate for acceptance or rejection. However, the populace showed its conservative nature, approving

only about 10 per cent of the initiatives put before them. Recall is not much in use in Switzerland.

Flawed system

The National Commission correctly identified the main cause and source of political decay in India as the ineptness of the electoral process, which has not been able to keep out criminal, anti-social and undesirable elements from participating in and even dominating the political scene and polluting the electoral and parliamentary processes. A Constitution, however lofty its exhortations and sentiments, is not a self-executing document. The present system by which the voters are allowed to assert their sovereignty only once in five years is woefully flawed

Census of India -2011

Indian Census is the single largest source of a variety of statistical information on different characteristics of the people of India. It is the most credible source of information on demography, economic activity, literacy and education, housing & household amenities, urbanization, fertility and mortality, scheduled castes and scheduled tribes, language, religion, migration, disability and many other socio-cultural and demographic data.

With a history of more than 130 years, this reliable, time tested exercise has been bringing out a veritable wealth of statistics every 10 years, beginning from 1872 when the first census was conducted in India non-synchronously in different parts.

The recently concluded Census 2011 is the 15th National Census of the Country in the unbroken series since 1872 and the seventh after Independence. It is remarkable that the great historical tradition of conducting a Census has been maintained in spite of several adversities like wars, epidemics, natural calamities, political unrest etc. Very few countries in the world can boast of such a glorious tradition.

The responsibility of conducting the decennial Census rests with the Office of the Registrar General and Census Commissioner, India (ORGI) under the Ministry of Home Affairs, Government of India, which includes conceptualization, planning and implementation of the Census operation in the country. The organization has field offices in all the States and Union Territories (except the Union Territory of Dadra and Nagar Haveli and the Union Territory of Daman and Diu, which are attached to the office at Gujarat). The field officers are headed by the Directors of Census Operations, who are responsible for the conduct of Census in their respective jurisdictions.

Methodology:

The Census of India is conducted once in a decade, following an extended de facto canvasser method. Under this approach, data is collected on every individual by visiting the household and canvassing a single questionnaire over a period of three weeks. The count is then updated to the reference date and time by conducting a Revision Round. In the Revision Round, any changes in the entries that arise on account of births, deaths and migration between the time of the enumerators visit and the reference date/time are noted down and the record updated.

Census 2011 has been conducted in two phases. In the first phase, known as Houselisting and Housing Census, each building, house and other structures were systematically listed and numbered. Besides, useful information on use of the house, amenities available to the households, if residential, and assets owned by them was collected. This exercise, held between April to September, 2010 in different States/Union territories was used to draw up a frame for the second phase of Census 2011, known as

Population Enumeration held in February 2011.

In the second phase, the Population Enumeration exercise was held throughout the country from 9th to 28th February 2011. During this period, about 2.7 million Enumerators visited about 240 million households collecting information on every person living in these households. On the night of 28th February, 2011 the Houseless population was enumerated. Thereafter, a Revision Round was conducted to update the population with reference to the Census Moment, i.e., 00:00 hours of 1st March, 2011 by updating information on births and deaths occurring in the households.

Innovations Adopted:

India had witnessed unparalleled change in terms of growth in population, economic development and adoption of new technology, particularly in the filed of Information Technology in comparison to the previous decades. This offered an opportunity to reassess each stage of census taking and modify the procedures taking into account the availability of resources and their optimum utilization. From planning to execution of the Census Operation, innovation was the key word. The objective was to ensure full coverage of the area and the population without omission or overlapping, collection of quality data without any prejudice and bias and to quickly process the data to make it available in the public domain for use before it becomes obsolete.

Following are some of the steps taken in this direction:

Complete and Unduplicated Coverage of Population-While undertaking census operation, a key aspect is to ensure complete coverage of the geographic area of the country without any omission or duplication. This requires the updating of jurisdictional boundaries of all the administrative units from States to the Villages/Towns. Towards this end for use in Census 2011, information on changes in the jurisdiction of the administrative boundaries of 35 States/Union Territories, 640 districts, 5,924 sub-districts, 7,935 towns and 6,40,867 villages were meticulously collected along with official notifications and maps. Each of these changes was recorded in the digitized maps using latest GIS software. In addition, the Census Organization has completed preparation of detailed digital maps of 33 capital cities of the country based on satellite imagery. These maps show detailed layout of buildings, houses, other structures, road network and important landmarks and were used in Census 2011.

Census in School Programme-

 To sensitize school students about the Census 2011, an innovative programme was introduced throughout the country, where specially prepared and attractively designed School Kits were sent to about 60 to 80 schools in each of the 593 districts in the country. Each School Kit contained a letter from the Census Commissioner, India to the Principals of these schools requesting them to sensitize the students about the ensuing Census 2011 and also about the importance and utility of Census. Special attention was paid to the students of Class VI, VII and VIII for whom special lessons were sent on different subjects. The Census Commissioner, India also requested the Principals to designate one week in January 2011 as Census Week to develop awareness about Census 2011.

Gender Sensitization-

Even though gender had been a prominent cross-cutting priority in 2001 Census, data related to female count, marital status, female headed households, female disability and female work-participation has continued to suffer from undercount or under-reporting. The 2001 census enumerated several villages/ districts that had reported very few women, very low female literacy and no female worker. To ensure collection of accurate information, an attempt was made to integrate gender issues into various stages of census taking by identifying gender critical districts, which had low sex ratio (less than 900); low female literacy (less than 30%) or low female work participation rate (less than 20%) on the basis of 2001 Census. In this way 262 Critical Districts were identified for focused attention and training. Special steps were taken to appoint additional Master Trainer Facilitators to sensitize the Enumerators on gender issues and train them in collecting authentic information. Special Data Sheets and Posters were prepared and displayed at each training class to sensitize the Enumerators on the poor status of women with reference to these three critical indicators. Extra effort was also made during the publicity campaign to sensitize the people to provide correct information about women and the girl child at the time of enumeration.

Using Social Networking Websites-

With the overwhelming popularity of the social networking sites among the youth today, for the first time, in Census 2011, a conscious effort was made to reach them directly. Census 2011 Group was created on Facebook and Twitter in the first week of February 2011 and regular posts were made initially informing the visitors about different facets of Census in general and Census 2011 in particular inviting their support in spreading the message on Census. Within a short time, a large number of persons, mostly from the younger sections of the population, became members and actively posted views on the wall. The experience was quite satisfactory as most of the posts complimented the efforts while a few pointing out about not being covered in Census 2011. Immediate action was taken to redress their grievances. The site was also used for disseminating information on Census 2011 extensively. At present, there are more than 20,000 members on this Group. Similarly on Twitter as well, the members welcomed the new initiative. The Census Commissioner, India was awarded Exceptional Achievement for innovative use of social media in the country’s biggest governance exercise.

Community Volunteers-

This was a unique initiative in some North Eastern States where Civil Society Organisations joined hands with the Directorates to not only spread awareness but actually take part in the conduct of the Census. This has had a significant impact in these States and has greatly enhanced the participation of the general people in the Census.

Time bound completion of field operations and timely release of data.

Using State of the Art data recognition technology in data capture and data processing- The Census Office has always been in the forefront in the adoption of the latest data processing technology in the processing of census data. At 2001 Census, for the first time, a major technology change in the vital activity of data extraction recorded on the Census Schedule and creating associated computer data files was introduced, so as to fully computerize the subsequent data processing activities in generating output tables for use. India was the only large country in the world to have used this technology in 2001 Census. In the new technology used, the Census Schedules were scanned using high speed duplex scanners and information read using ICR technology. When the Census Office adopted this technology in India, it was considered a risk by many as the technology had been used only by a few small countries and not tested for a large country. This innovation by the Indian Census not only saved time and money but allowed accurate capture of data as well. Another major benefit in adopting this technology was that it allowed the Census to tabulate the entire data on a 100% basis rather than on a sample basis as was the case till 1991 Census. Using the ICR technology not only saved time for data capture and data tabulation thus ultimately making it available to the users early, but also was very cost effective saving public money.

Despatch and delivery of Census material-

In Census 2011, approximately 340 million Census Schedules, 6 million Instruction Manuals, and other printed materials in 18 languages were used. The despatch and delivery of these Census materials weighing about 2000 metric tons, printed in the right language(s) from about twenty printing presses located in different parts of the country and delivering them to about 17,000 locations in each tehsil in the country was a logistic nightmare. After the operations, the filled-in Schedules were to be collected and delivered to the 17 Data Scanning Centres and the 33 Census Offices. This job of collection, delivery and return collection was given to Indian Posts which used their Logistic Post Service to deliver the material in each tehsil in the country, safely and securely and in time. With their expert services, the India Posts were able to complete the work in time satisfactorily.

Public Grievances and Monitoring-

A Call Centre was set up to receive complaints from the public on various issues relating to Population Enumeration. Located in Pune, the facility was extended in 14 languages throughout the country. The complaints on non-coverage and other issues were quickly resolved with support from the local Census Offices. The Call Centers facility was also used to monitor the progress of enumeration work by directly contacting the Supervisions. At the conclusion of the Population Enumeration exercise, they have been assigned the job of Post Enumeration Survey (PES) in four metro cities.

Outsourcing of non-critical activities-

Undertaking the Census Operation requires planning and execution of a wide array of activities, some demanding serious application of mind and some simply involving logistics and infrastructure. The scale of operations in all cases, however, was gigantic, due to the geographic spread and absence of adequate infrastructure in the country. It was decided at the planning stage itself to outsource non-critical activities in Census 2011 to allow Census Officials to focus more on Census related activities than managing logistics.

Adoption of Green Technology.

Registrar General & Census Commissioner, India supervised and monitored the progress of the Census Operations through video conferences with all the 640 District Collectors every week. The video conferencing technology saved huge amount of money which otherwise would have been necessary if the supervision team practically travelled to all the places or issued instructions through letters or correspondences.

Availing Call Centre facility to address public grievances during census helped in spreading green technology.

Cost:

The cost of Census taking in such a large country as India is enormous. In Census 2011, about Rs 2200 crore was spent from the Central Budget during the two phases of Census, i.e., Houselisting and Housing Census held from April to September 2010 and the Population Enumeration held in February 2011. The amount spent was quite low as compared to the world average. According to the 25th Population Conference organized by the UN Statistical Division held in Seoul this year, the average cost of Census taking in the world is estimated as $ 4.6 per person. In India, the cost was less than $ 0.5 per person in Census 2011.

Prevention Of Corruption Act,1988: Overview

Introduction:-

Corruption is considered to be one of the greatest impediments on the way towards progress for developing country like India. The economic, social and cultural structure of our country is very strong; however, due to the menace called- Corruption, it has been adversely affected and has become defenseless against the forces of anti-social elements.

According to Shri N.Vittal, Former Chief Vigilance Commissioner, the first stage in the dynamics of the rule of law is the framing of effective rules and laws, which are equipped to hinder the ever-rising escalation of the corruption graph. It is in this context that the Prevention of Corruption Act, 1988 becomes highly significant.

Genesis:-

The Prevention of Corruption Act, 1988 (henceforth referred to as PCA) came into force on 9th September, 1988. it incorporated the Prevention of Corruption Act, 1947, the Criminal Law Amendment Act, 1952, and sec. 161 to 165-A of the Indian Penal Code with modifications, enlarged the scope of the definition of the expression 'Public Servant' and amended the Criminal Law Amendment Ordinanc,k1944. The PCA, 1988l, thereby widened the coverage, strengthened the provisions and made them more effective.

The Prevention Of Corruption Act, 1988:-

A] Definitions:

The most important definitions are that of :

- Public duty

- Public servant

1) Public Duty: It means a duty that is dine for the benefit of the State, the public or the

community at a large. It this context, State would mean:

a) A corporation established by or under a Central, Provincial or State Act.

b) An authority or a body owned controlled or aided by the Government company as defined in Sec. 617 of the Companies Act,1956.

2) Public Servant: It is unique term in Anti-corruption law, being the deciding factor at the threshold, of one's liability, depending on his being public servant. The term 'Public Servant' was not defined under the PCA, 1947 and the Act adopted the definition of the term under sec. 21 of the Indian Penal Code. The PCA of 1988 provides a wider definition in the Act itself under clause (c) of sec. 2. the following are the salient

aspects of the new definition:

a) Under cl (c) of Sec.2 of the PC, the emphasis is on public duty and not on the Authority remunerating.

b) The definition is enlarged so as to include the office-bearers of the registered co-operative societies receiving any financial aid from the Government, or from a Government corporation or company, the employees of universities, public service commissions and banks etc.

The following genres of persons fall within the ambit of 'public servant:

a) Any person who is paid by the government or local authority or remunerated by way of fees or commission for the performance of or is in the service of a corporation established by or under a Central, Provincial or State Act, or an authority or body owned or controlled or aided by the Government company as defined in the Companies Act, 1956.

b) Any Judge or any person authorized by a court of justice to perform any duty, in connection with the administration of justice or any arbitrator to whom any cause or matter has been referred for decision or report by a court of justice or report by a court of justice or by a competent public authority.

c) Any person who holds an office result to which he is empowered to prepare, publish maintain or revise an electoral roll or to conduct an election or part of an election, or is authorized or required to perform any public duty.

d) Any person who is the president, secretary or other office bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central or State Government or any authority or body owned, controlled or aided by Government or Government company as defined in Sec. 617 of the Companies Act, 1956.

e) Any person who is a chairman, member or employee of any service commission or Board or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on their behalf.

f) Any person who is the Vice-Chancellor or member of any governing body, professor, reader or lecturer of any University and any person whose services have been availed of by a University.

g) An office-bearer or an employee of an educational, scientific, social, cultural or other institution receiving or having received any financial assistance from the Central or State government or local or other public authority.

Explanation 1 states that it is immaterial whether the person falling within the periphery of the above clauses is appointed by Government or not.

Explanation 2 states that a person who is actually holding the

position of the situation of public servant irrespective of the fact that he might not have th3e right to hold that situation shall be deemed to be 'public servant'.

B] Power To Appoint Special Judges:

The Central and the State Government is empowered to appoint Special Judges by placing a Notification in the Official Gazette, to try the following offences:

· Any offence punishable under this Act.

· Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified under the Act.

The qualification for the Special Judge is that he should be or should have been a Session Judge or an Additional Session Judge or Assistant Session Judge under the Code of Criminal Procedure, 1973

C] Case Trial By Special Judges:

Every offence mentioned in Section 3(1)shall be tried by the Special Judge for the area within which it was committed. When trying any case, a Special Judge may also try any offence other than what is specified in S. 3, which the accused may be, under Cr.P.C. be charged at the same trial. The Special Judge has to hold the trial of an offence on day-to-day basis. However, while complying with foretasted, it is to be seen that the Cr.P.C. is not bifurcated.

D] Power And Functions Of Special Judges:

The following are the powers of the Special Judge:

He may take cognizance of the offences without the accussed being commissioned to him for trial. In trying the accussed persons, shall follow the procedure prescribed by the Cr.P.C. for the trial of warrant cases by Magistrate. he may with a view to obtain the evidence of any person supposed to have been directly or indirectly concered in or privy to an offence, tender pardon to such person provided that he would make full and true disclosure of the whole circumstances within his knowledge or in respect to any person related to the offence.

Except as for S. 2(1), the provisions of Cr.P.C. shall apply to the proceedings before a Special Judge. Hence, the court of the Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor.

The provisions of secs. 326 and 475of the Cr.P.C. shall apply to the proceedings before a Special Judge and for purpose of the said provisions, a Special Judge shall be deemed to be a magistrate.

A Special Judge may pass a sentence authorized by law for the punishment of the offence of which a person is convicted.

A Special Judge, while trying any offence punishable under the Act, shall exercise all powers and functions exercised by a District Judge under the Criminal Law Amendment Ordinance,1944.

Power to try summarily: Where a Special Judge tries any offence specified in Sec. 3(1), aleged to have been committed by a public servanet in relation to the contravention of any special order referred to in Sec.12-A(1) of the Essential Commodities Act, 1955 or all orders referred to in sub-section (2)(a) of that section then the special judge shall try the offence in a summarily way and the provisions of s. 262 to 265 (both inclusive) of the said code shall as far as may be apply to such trial. Provided that in the case of any conviction in a summary trial under this section this shall be lawful for the Special Judge to pass a sentence of imprisonment for a term not exceeding one year. However, when at the commencement of or in the course of a summary trial it appears to the Special Judge that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or it is undesirable to try the case summarily, the Special judge shall record all order to that effect and thereafter recall any witnesses who may have been examined and proceed to hear and re-hear the case in accordance with the procedure prescribed by the said code for the trial of warrant cases by Magistrates. Moreover, there shall be no appeal by a convicted person in any case tried summarily under this section in which the Special Judge passes a sentence of imprisonment not exceeding one month and of fine not exceeding Rs. 2000.

E] Offences And Penalties:

The following are the offences under the PCA along with their punishments:-

Taking gratification other than legal remuneration in respect of an official act, and if the public servant is found guilty shall be punishable with imprisonment which shall be not less than 6 months but which may extend to 5 years and shall also be liable to fine.

· Taking gratification in order to influence public servant, by corrupt or illegal means, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

· Taking gratification, for exercise of personal influence with public servant shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

· Abetment by public servant of offences defined in Section 8 or 9, shall be punishable with imprisonment for a term which shall be not les than six months but which may extend to five years and shall also be liable to fine.

· Public servant obtaining valuable thing without consideration from person concerned in proceeding or business transacted by such public servant, shall be punishable with imprisonment for a term which shall be not les than six months but which may extend to five years and shall also be liable to fine.

· Punishment for abetment of offences defined in Section 7 or 11 shall be punishable with imprisonment for a term which shall be not less that six months but which may extend to five years and shall also be liable to fine.

· Any public servant, who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to 7 years and shall also be liable to fine.

· Habitual committing of offence under Section 8, 9 and 12 shall be punishable with imprisonment for a term which shall be not less than two years but which may extend to 7 years and shall also be liable to fine.

F] Matters To Be Taken Into Consideration For Fixing Fine:

Where a sentence of fine is imposed under sec. 13(2) and sec. 14, the court while fixing the amount for the same shall consider the amount or te value of the property which the accussed has obtained by committing the offence or where the conviction is for an offence referred to in sec. 13(1)(e), the pecuniary resource or property for which the accussed is unable to account satisfactorily.

Investigation:

Investigation shall be done by a police officer not below the rank of:

a] Incase of Delhi, of an Inspector of Police.

b] In metropolitan areas, of an Assistant Commissioner of Police.

c] Elsewhere, of a Deputy Superintendent of Police or an officer of equivalent rank shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a magistrate of first class, or make any arrest therefore without a warrant.

If a police officer no below the rank of an Inspector of Police is authorized by the State Government in this behalf by general or special order, he may investigate such offence without the order of a Metropolitan Magistrate or Magistrate of First class or make arrest therefor without a warrant.

G] Previous Sanctions:

Previous sanction is required in following cases:

When an offence is punishable under secs. 7, 10, 11, 13 and 15 of the Act.

In case of a person who is employed in connection with the affiars of the Union or State and is not removable from his ofice save by or with the sanction of the Central or State Government as the case may be. In case of any other person, of authority competent to remove him from his office.

Previous sanction is required, if the court feels that a failure has occured in the administration of justice, to do the following:

reversal or alteration by the Court of Appeal of any findings, or any sentence or order passed by a Special Judge. stay the proceedings on the ground of error, omission or irregularity. revision of any interlocutory order passed in inquiry, trial, appeal or proceedings.

 H] Accused: A Competent Witness:

Any person charged with an offence punishable under this Act, shall be a competent witness for the defense and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:

Provided that-

(a) He shall not be called as a witness except at his own request;

(b) His failure to give evidence shall not be made the subject of any comment by the prosecution or give rise to any presumption against himself or any person charged together with him at the same trial;

(c) He shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged, or is of bad character, unless-

(i) The proof that he has committed or been convicted of such offence is admissible evidence to show that he is guilty of the offence with which he is charged, or

(ii) He has personally or by his pleader asked any question of any witness for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defense is such as to involve amputations on the character of the prosecutor or of any witness for the prosecution, or

(iii) He has given evidence against any other person charged with the same offence.

I] Appeal And Revision:

The High Court has given all power of appeal and revision that are provided to it through Cr.P.C. as if the Court of Special Judge were a Court of Session trying cases within the local limits of the High Court.

Conclusion:-

Corruption is a termite that is eating up the pith of our society it not only hampers the individual's growth but also the collective growth of our Country. Hence, it stands highly imperative to control and then stop this growing menace and in this case the Prevention of Corruption Act,1988 comes to our aid. In fact, the Act has been beautifully drafted, however, a huge power has been vested in the hands of the Central and State Government in form of appointment of Special Judges, providing sanctions etc. Hence the Act would become oblivious if the matter in question is related to Central or State Governments.

The PCA despite of this lacunae is a very powerful Act which needs proper implementation in order to curb corruption from grass root-level.