Should the Act of Giving a Bribe be Treated as Legal?

Adam Jacobson had mentioned an interesting article available on the Web to Tanjam Jacobson who kindly sent me an email about it. It is a six-year old article. A search indicates that it has been widely read and discussed in many countries starting in 2011. However, I am sure that the paper would remain relevant to India till at least the year 5,000 A. D! The article is:

Why, for a Class of Bribes, the Act of Giving a Bribe should be Treated as Legal, 
Kaushik Basu, March 2011, Chief Economic Adviser, Ministry of Finance,
Government of India, New Delhi – 1
http://www.kaushikbasu.org/Act_Giving_Bribe_Legal.pdf

It is interesting to go to Basu’s website http://www.kaushikbasu.org and read more about him and his other interests.

Now back to Basu’ proposal on the act of giving a bribe – he suggests that if the bribe is given under fear of harassment by a public servant, the giver should not be subject to criminal liability. Decriminalizing the act of giving a bribe would encourage the giver to complain about, or testify to, the bribe-taker’s crime of demanding and receiving it. Further, says Basu, we should return to the bribe-giver the bribe amount recovered from the bribe-taker.

Basu quotes from Kautilya’s Arthashastra: “Just as it is impossible to know when a fish moving in water is drinking it, so it is impossible to find out when government servants in charge of undertakings misappropriate money”. I would suggest that it is equally difficult to separate ill-gotten wealth of a “neta” from the black money raised for his/her party!  

Basu recognizes that his proposal, if implemented, could make public servants vulnerable to blackmail and false charges of bribe-taking. His suggestion for preventing this is to increase the punishment for blackmail and false accusation.

Let me now share my thoughts about Basu’s proposal. In the first place, the proposal ought to be implemented; there is no doubt about that. However, that may not be enough. A lot more would need to be done. Let me mention a couple of issues that would need to be considered.

One problem is that legal solutions to Indian problems get buried under pending cases. Read the article titled Twenty-three years after accepting a bribe

Wealthy criminals hire lawyers who exploit every weakness in the legal system to get the final decision delayed by a few decades. During this time, the problem gets solved for the accused as witnesses die, or undergo a miraculous change of mind. In some cases, the accused themselves die of old age before all possibility of appeals and adjournments is exhausted. I wonder if the Indian judicial system would have been better if no possibility of appeal had existed for the cop in the news item mentioned above. He would have gone on to serve one year in jail and could have lived the rest of his life, hopefully, in some sensible manner.

There is another problem – proportionality of punishment. Times of India had reported a case in which a constable was dismissed from service for receiving Rs 100 from a passenger at the Indira Gandhi Airport in New Delhi:

HC relief for constable sacked over graft charges (The Times of India, New Delhi Edition, 31 Jan 2010, Abhinav Garg, Abhinav.Garg@times-group.com). Visit http://timesofindia.indiatimes.com/city/delhi/HC-relief-for-constable-sacked-over-graft-charges/articleshow/5518515.cms

The constable’s appeal was heard fifteen years after the conviction. In comparison, consider a public servant elected or otherwise, against whom a five Crore bribery charge is proved. The bribe taker would have surely caused a loss to the public exchequer worth many times the bribe amount. What is loss involved? Can we measure it in terms of lives that could have been saved with it? Prof Robert Black at Johns Hopkins has calculated the cost of saving a life. You can read the news report on his work and calculate for yourself how many lives we can save in India with Rs 5 Crores. My estimate is that we can save at least 5,000 lives. What is the punishment for gobbling up that much, or more, of public wealth! The Prevention of Corruption Act provides that the offence 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”. Note that the law does not specify rigorous imprisonment.

I would vote for the punishment to be enhanced to a life imprisonment at least, without any possibility of remission or parole, if the bribes taken add up to Rs five Crores or more.

Justice is always implemented with human decisions. It cannot be 100% satisfactory in all cases. We make practical compromises in framing the law, to minimize unfairness. However, the question is who the compromises benefit? Who are left in the lurch? I feel that legislation that simplifies the system and speeds up justice would do more good than harm.