The importance of ensuring that honest officers are not harassed for bona fide mistakes while taking well-meaning decisions was once again underlined by the Prime Minister on the occasion of golden jubilee celebrations of the Central Vigilance Commission recently, when he stressed upon the need to avoid an automatic imputation of guilt and mala fide. Speaking on the same occasion, the finance minister mentioned the need for focused regulatory intervention in corporate matters in cases of gross violations or when there are clear cases of criminality, so that law enforcement agencies themselves do not get overburdened in the process.
In this context, it may be useful to revisit certain provisions of the Public Procurement Bill, 2012, and the Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2011, placed before Parliament, as some provisions of the Public Procurement Bill embed criminality to procurement officials even without any criminal intent on their part, while certain provisions of the Foreign Bribery Bill can place Indian industry on a non-level playing field vis-a-vis their foreign counterparts in export markets.
Section 45(f) of the PP Bill, for instance, makes any person (including public officials) liable to imprisonment for a term up to five years for engaging in any form of anti-competitive behaviour in the procurement process. The phrase ‘anti-competitive behaviour’ itself has not been defined, making it a matter of subjective interpretation by courts or by disgruntled bidders; and this sub-section does not require any evidence of criminal intention to cause undue advantages or wrongful gains to any party to the procurement process. It is, therefore, possible that it could easily be abused by unsuccessful bidders or their proxies for causing undue harassment to contracting officers. While section 50 of the PP Bill disallows a court from taking cognisance of an offence committed by a public servant during the course of his employment, it may be open to interpretation if an omission resulting in anti-competitive behaviour would be protected as an official act during the course of employment. In addition, section 52 of the PP Bill offering a ‘good faith’ defence to acts of public officials may provide only limited protection in the form of a reactive defence, rather than as a proactive defence if the Bill were to offer a presumption of good faith to routine decision-making.
Similarly, the Foreign Bribery Bill applying to Indian companies in their export operations defines