Systemic reforms can curb coercive corruption. For example, use of information and communications technology has reduced corruption in areas like railway reservation. Further, though corruption cases often fail in courts, there is greater success in cases of coercive corruption than in cases of collusive corruption. Here, the bribe-giver is the victim. He is willing to depose against the bribe-taker. Under the Prevention of Corruption Act, the bribe giver is also guilty. However, if he deposes against the bribe-taker, he gets immunity. Therefore, he often comes forward to depose against the bribe-taker. Besides, the ‘trap cases’ by the vigilance machinery are quite effective in such instances. Trap cases are those in which the government servant accepting bribe is caught red-handed. It is somewhat like a sting operation.
But the situation is different in cases of collusive corruption. As both the bribe-giver and the bribe-takercolludeand arebeneficiaries ofthetransaction,it is veryhard to get evidence. Thelosses from collusive corruption to government and society are far greater than from coercive corruption. SARC has recommended that the Prevention of Corruption Act should be amended to combat
collusive corruption. It recommended that in collusive corruption, the ‘burden of proof’ should be shifted to the accused. In our criminal justice system, every person is presumed to be innocent till he/she is proved guilty. Accordingly, the burden of proving the charges lies totally on the prosecution. They have to produce evidence – witnesses and documents–to establish the case. There are certain situations where the burden of proof is placed on the accused.It means that he/she has to prove his/ her innocence.
For example, the Prevention of Corruption Act stipulates that a public servant is said to commit the offence of criminal misconduct if he/she cannot satisfactorily account for the property in his/her possession, which is disproportionate to his/her known sources of income. In this case, the burden of proving his innocence, is on the accused public servant; he has to show that he acquired the property with his sources of income. The Prevention of Corruption Act also stipulates that when the accused public servant takes money, the court has to presume that it is a bribe; then the accused has to prove that the money was not a bribe.
SARC has recommended that the Prevention of Corruption Act should be amended to cover offences of ‘collusive bribery’. An offence could be classified as ‘collusive bribery’ if the outcome or intended outcome of the transaction leads to a loss to the state, public or public interest. In all such cases if it is established that the interest of the state or public has suffered because of an act of a public servant, then the court shall presume that the public servant and the beneficiary of the decision committed an offence of ‘collusive bribery’. The punishment for all such cases should be increased to 10 years of imprisonment.