White Collar Crimes - Notes for exam, Lecture notes of Law

Download White Collar Crimes - Notes for exam and more Lecture notes Law in PDF only on Docsity! KLE LAW ACADEMY BELAGAVI (Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College, Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai) STUDY MATERIAL for WHITE COLLAR CRIMES Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi Compiled by Dundappa B. Solapure, Principal K.L.E.Society's Law College, Chikodi This study material is intended to be used as supplementary material to the online classes and recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation for their examinations. Utmost care has been taken to ensure the accuracy of the content. However, it is stressed that this material is not meant to be used as a replacement for textbooks or commentaries on the subject. This is a compilation and the authors take no credit for the originality of the content. Acknowledgement, wherever due, has been provided. 1 Course-III Optional -V White Collar Crimes (Privileged Class Deviance) Objectives This course focuses on criminality of the privileged classes- wielders of all forms of state and social power. The course focuses on the relation between privilege, power and deviant behaviour. The traditional approaches which highlight white collar crime, Socio-economic offences or crimes of powerful deal mainly deal with the deviance of the economically resourceful. The dimension of deviance associated with the bureaucracy, the new rich religious leaders and organizations, professional classes are to be addressed. In teaching this course, current developments in deviants reflected in press and media, law reports and legislative proceedings are to be focused. Unit- I Introduction Concept of White Collar Crime Almost all societies have certain norms, beliefs, customs and traditions which are implicitly accepted by its members as conducive to their wellbeing and healthy development. Infringement of these cherished norms and customs condemned as anti-social behavior. Thus, many writers have defined 'crime' as anti-social, immoral or sinful behavior. However, according to the legal definition crime is any form of conduct which is declared to be socially harmful in a state and as such forbidden by law under pain of some punishment. Crime can be defined as an act or omission, which is unlawful, illegal or infringes provisions of law and which is punishable by law. The most significant recent development in criminology, especially since World War II, has been the emergence of the concept "white-collar” crime as an area of scientific inquiry and theoretical speculation. It is true, of course that this crime itself is not wholly new; robber barons have been 4 Here are the characteristics of white collar crimes which distinguish it from other crimes of general nature: Meaning Blue-collar crimes refer to people who work physically, using their hands, whereas white collar crimes refer to knowledgeable works, who use their knowledge to commit crimes. New v/s Traditional Where blue-collar crimes refer to traditional crimes that have been committed since ages, the concept of white collar crimes has recently developed. It’s a new species of crime. Mens rea To constitute a crime element of mens rea and actus reus is must. Where mens rea is an essential element of blue collar crimes, its involvement in white collar crimes is not necessary. Independent of social and personal conditions White collar crimes have no relation with the social conditions, like poverty, or personal conditions of the offender albeit it matters in the conventional nature of crimes. Direct access to the targets Since the offenders who commit white collar crimes are people at a higher position in a company they have easy, direct and valid access to their targets. The case is different with blue-collar crimes. For example, if Jhethalal decides to commit theft in the house of Babitaji, he will first have to break the door or make a passage of entrance to get inside Babitaji’s house and thereafter commit theft. So, before actually committing theft, Jhethalal will first have to get access to Babitaji’s house. Whereas in white collar crimes, one can have direct access to their target making use of one’s higher position and power. Veiled offenders In the case of white collar crimes, one does not have to come face to face with the victim and so their identity remains veiled. Whereas in case of 5 blue collar crimes, one has to come face to face in order to inflict injury upon others. Involvement of politicians In many cases it has been found that the offenders have strong connections with politicians and sometimes, politicians are also involved in committing the crime thus making it difficult for the victims to take action against such offenders. Greater harm The harm caused by white collar crimes are much more difficult to bear than those inflicted by blue collar crimes. Also, the harm caused by white collar crimes could cause great harm, not only to the public, but to the other institutions and organizations as well. Historical Background The concept of white-collar crime is usually associated with E.H. Sutherland whose penetrating work in this area focused the attention of criminologists on its demoralizing effects on the total crime picture. Sutherland pointed out that besides the traditional crimes such as assault, robbery, dacoity, murder, rape, kidnapping, and other acts involving violence, there are certain anti-social activities which the persons of upper strata carry on in course of their occupation of business. In 1934 Morris drew attention to the necessity of a change in emphasis regarding crime he asserted that anti-social activities of persons of high status committed in course of their profession must be brought within the category of crime and should be made punishable. Finally, E.H.sutherland emphasized that these 'upper world' crimes which are committed by persons of upper socio-economic groups in course of their occupation violating the trust should be termed as white-collar crimes, so as to be distinguished from traditional crimes which he called ''blue-collar crimes. 6 The Nature of White - Collar Crime The chief criterion for a crime to be "white-collar" is that it occurs as a part of or a deviation from, the violator's occupational role. Technically, this is more crucial than the type of law violated or the relative prestige of the violator, although these factors have necessarily come to be major issues in the white-collar controversy, First, because most of the laws involved are not part of the traditional criminal code, and Second, because most of the violators are a cut above the ordinary criminal in social standing. Such crimes as embezzlement, larceny by bailee, certain forgeries, and the like, however, are essentially occupational and thus white-collar crimes, and yet are tried under the penal code. Likewise farmers, repairmen, and others in essentially non white-collar occupations could, through such illegalities as watering milk for public consumption, making unnecessary "repairs” on television sets, and so forth, be classified as white-collar violators. However, members of high-status white-collar occupations who commit ordinary penal law violations, such as murder, robbery, rape, non occupationally-connected thefts, and the like, would not be white-collar criminals. These crimes are usually violations of trust, either "duplicities" or "misrepresentations,” placed in the person (or the corporation, for that matter) by virtue of his occupational norms and high position in the society. These violations of trust must also be violations of law, and not merely unethical practices or noncriminal deviations from informal conduct norms within a business or profession. And around the legal status of such violations has arisen a theoretical conflict that continues to the present day. 9 expose secrets. Bribery: When money, goods, services, information or anything else of value is offered with intent to influence the actions, opinions, or decisions of the taker. You may be charged with bribery whether you offer the bribe or accept it. Cellular Phone Fraud: The unauthorized use, tampering, or manipulation of a cellular phone or service. This can be accomplished by either use of a stolen phone, or where an actor signs up for service under false identification or where the actor clones a valid electronic serial number (ESN) by using an ESN reader and reprograms another cellular phone with a valid ESN number. Computer fraud: Where computer hackers steal information sources contained on computers such as: bank information, credit cards, and proprietary information. Counterfeiting: Occurs when someone copies or imitates an item without having been authorized to do so and passes the copy off for the genuine or original item. Counterfeiting is most often associated with money however can also be associated with designer clothing, handbags and watches. Credit Card Fraud: The unauthorized use of a credit card to obtain goods of value. Currency Schemes: The practice of speculating on the future value of currencies. Educational Institutions: Yet another field where collar criminals operate with impunity are the privately run educational institutional in this country. The governing bodies of those institutions manage to secure large sums by way of government grants of financial aid by submitting fictitious and fake details about their institutions. The teachers and other staff working in these institutions receive a meager salary far less than what they actually sign for, thus allowing a big margin for the management to grab huge amount in this illegal manner. 10 Embezz1ement: When a person who has been entrusted with money or property appropriates it for his or her own use and benefit. Environmental Schemes: The overbilling and fraudulent practices exercised by corporations which purport to clean up the environment. Extortion: Occurs when one person illegally obtains property from another by actual or threatened force, fear, or violence, or under cover of official right. Engineering: In the engineering profession underhand dealing with contractors and suppliers, passing of sub-standard works and materials and maintenance of bogus records of work-charged labour are some of the common examples of white collar crime. Scandals of this kind are reported in newspapers and magazines almost every day in our country. Fake Employment Placement Rackets: A number of cheating cases are reported in various parts of the country by the so called manpower consultancies and employment placement agencies which deceive the youth with false promises of providing them white collar jobs on payment of huge amount ranging from 50 thousands to two lakhs of rupees. Forgery: When a person passes a false or worthless instrument such as a check or counterfeit security with the intent to defraud or injure the recipient. Health Care Fraud: Where an unlicensed health care provider provides services under the guise of being licensed and obtains monetary benefit for the service. The white collar crimes which are common to Indian trade and business world are hoardings, profiteering and black marketing. Violation of foreign exchange regulations and import and export laws are frequently resorted to for the sake of huge profits. That apart, adulteration of foodstuffs, edibles and drugs which causes irreparable danger to public health is yet another white collar crime common in India. 11 Insider Trading: When a person uses inside, confidential, or advance information to trade in shares of publicly held corporations. Insurance Fraud: To engage in an act or pattern of activity wherein one obtains proceeds from an insurance company through deception. Investment Schemes: Where an unsuspecting victim is contacted by the actor who promises to provide a large return on a small investment. Kickback: Occurs when a person who sells an item pays back a portion of the purchase price to the buyer. Larceny/Theft: When a person wrongfully takes another person's money or property with the intent to appropriate, convert or steal it. Legal Profession: The instances of fabricating false evidence, engaging professional witness, violating ethical standards of legal profession and dilatory tactics in collusion with the ministerial staff of the courts are some of the common practices which are, truly speaking, the white collar crimes quite often practiced by the legal practitioners. Money Laundering: The investment or transfer of money from racketeering, drug transactions or other embezzlement schemes so that it appears that its original source either cannot be traced or is legitimate. Medical profession: White collar crimes which are commonly committed by persons belonging to medical profession include issuance of false medical certificates, helping illegal abortions, secret service to dacoits by giving expert opinion leading to their acquittal and selling sample-drug and medicines to patients or chemists in India Racketeering: The operation of an illegal business for personal profit. Securities Fraud: The act of artificially inflating the price of stocks by brokers so that buyers can purchase a stock on the rise. Tax Evasion: When a person commits fraud in filing or paying taxes. The complexity of tax laws in India has provided sufficient scope for 14 4. With the advancement in technology, faster growth rate of industries and business, and political pressure have introduced the offenders to newer, easier and swifter methods of committing such crimes. 5. With the introduction of the people to the internet and digital world, where big transactions takes place within seconds and where reaching out people from all over the world is a matter of few minutes, criminals have got an incentive to commit more crimes and hide anywhere in the world. 6. Our law enforcement agency also becomes reluctant to deal with such crimes as these cases are very complicated and tracing a suspect is a difficult job. The investigation in case of white collar crimes is much more consuming than that in traditional crimes. 7. Even when the offender of the white collar crime has been caught, the judiciary fails to punish them. The major reasons behind the failure to hold these criminals accountable for their wrongful acts are: ➢ The legislators and the ones implementing the laws belongs to the same group or class to which the offender belongs and therefore land up assisting these criminals instead of taking actions against them. ➢ The investigating officers put in less effort in doing their job as they are not able to connect the small evidences that they get. And despite efforts they don’t get major evidences in such cases as everything is done online and tracing things or person becomes difficult. ➢ We don’t have laws on such types of crime and therefore offenders are left free. In many cases due to loopholes in law, it becomes favorable to the offenders. ➢ The existing laws do not provide stringent punishment that would prevent people from being involved in such types of crimes. The suspects do not have any incentive to not participate in these types of crime. 15 Reasons for the growth of white collar crimes in India Greed, competition and lack of proper laws to prevent such crimes are the major reasons behind the growth of white collar crimes in India. Greed The father of modern political philosophy, Machiavelli, strongly believed that men by nature are greedy. He said that a man can sooner and easily forget the death of his father than the loss of his inheritance. The same is true in the case of commission of white collar crimes. Why will a man of high social status and importance, who is financially secure, commit such crimes if not out of greed? Easy, swift and prolong effect The rapid growing technology, business, and political pressure has introduced the criminals to newer ways of committing white collar crimes. Technology has also made it easier and swifter to inflict harm or cause loss to the other person. Also, the cost of such crimes is much more than other crimes like murder, robbery or burglary, and so the victim would take time to recover from it. This would cut down the competition. Competition Herbert Spencer after reading ‘On the Origin of Species’ by Darwin, coined a phrase that evolution means ‘survival of the fittest’. This implies that there will always be a competition between the species, and the best person to adapt himself to the circumstances and conditions should survive. Lack of stringent laws Since most of these crimes are facilitated by the internet and digital methods of transfer payments, laws seem reluctant to pursue these cases as investigating and tracking becomes a difficult and complicated job. Why it becomes difficult to track it is because they are usually committed in the privacy of a home or office thereby providing no eyewitness for it. 16 Lack of awareness The nature of white collar crimes is different from the conventional nature of crimes. Most people are not aware of it and fail to understand that they are the worst victims of crime. Necessity People also commit white collar crimes to meet their own needs and the needs of their family. But the most important thing that the people of high social status want to feed their ego. The reasons behind white collar criminals going unpunished are: • Legislators and the people implementing the laws belong to the same class to which these occupational criminals belong. • The police put in less effort in the investigation as they find the process exhausting and hard, and often these baffling searches fail to promise favorable results. • Laws are such that it only favours occupational criminals. • The judiciary has always been criticized for its delayed judgment. Sometimes it so happens that by the time court delivers the judgment, the accused has already expired. This makes criminals loose in committing crimes. While white collar crimes are increasing at a faster rate, the judiciary must increase its pace of delivering judgments. Effects of white collar crime 1. Effect on the company White collar crimes cause huge loss to companies. In order to recover the loss, these companies eventually raise the cost of their product which decreases the number of customers for that product. This works according to the law of demand states that, other things being equal, when the price of a commodity rises, its demand would fall and when the price lowers, its demand would increase. In short, the price of the commodity is inversely proportional to its demand. Since the company is in loss, the salaries of the employees are lessened. Sometimes the company cut down the jobs of several employees. 19 7. Effects on the temperament of the affected person The target of the offenders is generally elderly people with little access to liquid assets and their cognitive ability is less than that of younger people. So they become an easy target for the offenders. The victims of such crimes often undergo depression and are seen to have suicidal tendencies, because sometimes the loss incurred is unbearable. The renowned startup founder, Vijay Shekhar Sharma, the person who founded the widely used app for transaction namely Paytm, became a victim of blackmailing by his personal secretary Sonia Dhawan. She along with others stole his personal data along with sensitive business plans, to extort money from him. Also, Sharma received regular calls stating that his personal information would be revealed to the public if he doesn’t give the required amount to them. Sharma was put under a lot of pressure. Socio – Economic Offences an Approach Introduction Socio-economic offences are usually considered to be synonymous with white collar crimes but a deep study into the concept reveals that although there is an intersection between socio economic offences and white collar crimes, but the latter is narrower in scope. White Collar crimes are those which are committed by upper class of the society in the course of their occupation, for e.g., a big multinational corporation guilty of tax evasion. A pensioner submitting false return may not be committing a white collar crime but interestingly, both are socio economic offences. Social crimes are those which affect the health and material of the community and economic crimes are those which affect the country’s economy and not merely the victim. 20 Hence it can be safely assumed that socio economic offences are those which affects the country’s economy as well the health and material of the society. In India, the 29th Law Commission Report suggested to take into consideration the Santhanam Committee Report of 1964. The committee report observed that, “the Penal Code does not deal with any satisfactory manner with acts which may be described as social offences having regard to the special circumstances in which they are committed and which have now become a dominant feature of certain powerful sections of modern society. In most of the offences that were identified, two features could be witnessed, economic benefit and unjust enrichment. It suggested that a separate chapter should be included in IPC to deal with socioeconomic crimes”. The committee broadly categorized the offences as (a) offences calculated to prevent or obstruct the economic development of the country and endanger its economic health; (b) evasion and avoidance of taxes lawfully imposed; (c) misuse of their positions by public servants in making of contracts and disposal of public property, issue of licenses and permits and similar other matters; (d) delivery by individuals and industrial and commercial undertaking of goods not in accordance with agreed specifications in fulfilment of contracts entered into with public authorities; (e) profiteering, black marketing and hoarding; (f) adulteration of foodstuffs and drugs; (g) theft and misappropriation of public property and funds; and 21 (h) trafficking in licenses, permits, etc. The 47th Law Commission Report laid down a new composite category of socio-economic crimes. The three basic forms include illegal economic activities, illegal way of performing commercial and allied transactions and evasion of public taxes or monetary liabilities. The survey includes an analysis of the case-laws having socio-economic ramifications. Some of the acts enacted to tackle the socio economic crimes by the Indian legislation are: The Essential Commodities Act, 1955 The Prevention of Corruption Act, 1988 The Prevention of Food Adulteration Act, 1955 The Prevention of Immoral Traffic (Amendment) Act, 1986. The Drugs and Cosmetics Act, 1940 The Essential Commodities (Amendment) Act, 2010 The Dowry Prohibition Act, 1961 The Narcotic Drugs Psychotropic Substances Act, 1985. The Standard of Weights and Measures Act, 1976 The Customs Act, 1962 The Drug (Control) Act, 1950 The Income Tax Act, 1961 The Anti-Corruption Laws (Amendment) Act, 1976 The Indian Penal Code, 1860 etc 24 (ii) as they were penalized under social welfare legislations, a purposive construction was required to further the objectives of the act. (iii) Punishment in these cases is usually light and (iv) they are offences which are in the nature of mala prohibita and not mala in se. DEVIANCE Introduction Deviance is the recognized violation of cultural norms. Norms guide virtually all human activities, so the concept of deviance is quite broad. One category of deviance is crime; the violation of a society’s formally enacted criminal law. Even criminal deviance spans a wide range, from minor traffic violations to prostitution, sexual assault, and murder. Most familiar examples of nonconformity are negative instances of rule breaking, such as stealing from a campus bookstore, assaulting a fellow student, or driving while intoxicated. Not all deviance involves action or even choice. The very existence of some categories of people can be troublesome to others. All of us are subject to social control, attempts by society to regulate people’s thoughts and behavior. Often this process is informal, as when parents praise or scold their children or when friends make fun of a classmate’s choice of music. Cases of serious deviance, however, may bring action by the criminal justice system; the organizations—police, courts, and prison officials—that respond to alleged violations of the law. How a society defines deviance, which is branded as deviant, and what people decide to do about deviance all have to do with the way a society is organized. Only gradually, however, have people come to understand that the roots of deviance are deep in society. 25 Deviance is always a matter of difference. Deviance emerges in everyday life as we encounter people whose appearance or behavior differs from what we consider “normal.” Deviance can be beneficial to society if unorthodox behavior leads to c reativity or innovation. Alternatively deviance may be harmful as in the case of crime. The Biological Context The human behavior to be the result of biological instincts. Early interest in criminality therefore focused on biological causes. In 1876, Cesare Lombroso (1835–1909), an Italian physician who worked in prisons, theorized that criminals stand out physically, with low foreheads, prominent jaws and cheekbones, protruding ears, hairy bodies, and unusually long arms. All in all, Lombroso claimed that criminals look like our apelike ancestors. Biological theories offer a limited explanation of crime. The best guess at present is that biological traits in combination with environmental factors explain some serious crime. Most of the actions we define as deviant are carried out by people who are physically quite normal. In addition, because a biological approach looks at the individual, it offers no insight into how some kinds of behaviors come to be defined as deviant in the first place. Therefore, although there is much to learn about how human biology may affect behavior, research currently puts far greater emphasis on social influences. Personality Factors Like biological theories, psychological explanations of deviance focus on individual abnormality. Some personality traits are inherited, but most 26 psychologists think personality is shaped primarily by social experience. Deviance, then, is viewed as the result of “unsuccessful” socialization. Psychologists have shown that personality patterns have some connection to deviance. Some serious criminals are psychopaths who do not feel guilt or shame, have no fear of punishment, and have little sympathy for the people they harm. However, as noted in the case of biological factors, most serious crimes are committed by people whose psychological profiles are normal. Both biological and psychological research views deviance as a trait of individuals. The reason these approaches have limited value in explaining deviance is that wrongdoing has more to do with the organization of society. We now turn to a sociological approach, which explores where ideas of right and wrong come from, why people define some rule breakers but not others as deviant, and what role power plays in this process. The Social Foundations of Deviance To view deviance as the free choice or personal failings of individuals, all behavior—deviance as well as conformity—is shaped by society. Three social foundations of deviance identified here. 1. Deviance varies according to cultural norms. No thought or action is inherently deviant; it becomes deviant only in relation to particular norms. 2. People become deviant as others define them that way. Everyone violates cultural norms at one time or another. For example, have you ever walked around talking to yourself or “borrowed” a pen from your workplace? Whether such behavior defines us as mentally ill or criminal depends on how others perceive, define, and respond to it. 3. Both norms and the way people define rule breaking 29 In this limited sense, deviance can be regarded a "normal" human response to "abnormal" social conditions, and the sociologist is therefore invited to assume that some sort of pathology exists within the social structure when- ever deviant behavior makes an appearance. Deviance can be defined as conduct which is generally thought to require the attention of social control agencies that is, conduct about which "some- thing should be done." Deviance is not a property inherent in certain forms of behavior; it is a property conferred upon these forms by the audiences which directly or indirectly witness them. Types of deviances A. Professional Deviance B. Official Deviance C. Police Deviance A. Official deviance ➢ State is a welfare State. ➢ But the abuse of powers will lead to totalitarian State. ➢ Though there are many laws and regulations, the corrupt officials do not hesitate to continue their illegal activities. Deviance by bureaucrats Bureaucracy means – officials who conduct the work of administration. Traditional work – collection of revenue tax. Act of Deviance: 1. Arrogant behaviour. 2. Stiff-necked attitude. 3. Arbitral behaviour. 30 4. Adhere to too much formalism. 5. Red-tapism (delay in action) to extract bribe. 6. Corruption. 7. Misappropriation of money and property. 8. Acquiring disproportionate wealth. They are fearless because they are supported by the politicians. Deviance by judges Justice has become a costly affair now days. The court procedure has become tedious and dilatory and a costly affair. There is doubt about the integrity of the court staff including magistrate and judges. The judges take bribes to influence their decision, giving biased decisions and misappropriation of funds Judges are influenced by political pressure. Judges maintain personal contacts with Lawyers. Personal interest may also play important role in delivering justice in a true spirit. Deviance by Legislature The legislator should only serve the interests of the electorate but certain group often tries to influence legislator by offering money or information and in exchange for policy favor. Corruption by legislators has become a dominant mode of official deviance. 1. They seek Ministerial Posts by hook or crook and later on start violating morals and ethical norms. 2. They are also actively involved in Corruption. 3. They collect money as contribution from various rich Industrialist and Businessman during elections. 4. In return the contributors multiply their earnings by making profit out of the licenses obtained with the help of their favorable legislatures. 5. Corrupt Govt. officials are also backed by the politicians. 31 6. They approve the Bill only if it is beneficial personally to them or to their party. 7. Create artificial shortage of consumer goods and raise prices Huge money is spend for election and votes are purchased and often do not hesitate to break the election code of conduct. a) They also nominate quotas for diesel, petrol pump, paper industries etc. to their own relatives, etc. b) They are also actively involved in defection. c) There is a close relationship between the criminals and the politicians. PROFESSIONAL DEVIANCE Introduction India is having a rich culture and tradition, coming from the different walks of people. Looking to the past of this country we find that due to intermingling of various types of races and civilization, India has emerged with wide categories of richness in all senses. But as said everything has its two sides. We find that due to diversified people coming to this country there are various classes also emerged. The class system is not new or the inculcated one, even ancient India do have few classes. Now with the modernization we find that this categorization goes very wide and prominent. One such class is the privileged class. This means those who are enjoying some sort of the privileges or the facilities. In India we find a very good numbers of such people. These privileges are being given to them either because of the name or fame or because of their excellence in any particular area. They used to constitute a whole class of people as we find that they are variously present. And above all in a country like India they are prominent too. They are being given the rights and powers. 34 Some professions tend to have support from politicians – in return they finance the politicians during the election. Accumulation of wealth by illegal means to meet for future uncertain needs for their children. Professional Deviance by Lawyers White collar criminality among lawyer is believed to be fairly widespread. The lawyer of good mass who not only advise organized criminals, but play a leading part in promoting and facilitating white collar criminality. It is not surprising that few lawyers often of the highest standard at the Bar, who specialize in corporation and constitutional law have suggested or guided the criminal or quasi-criminal activities of corporations under the guise of professionalism especially the wholesale white collar crimes of public utility in the past [Bar Council of Maharashtra v. M. V. Dabholkar reported in (1975) 2 SCC 702, 1976 AIR 242, 1976 SCR (2) 48] The deteriorating standards of legal education and unethical practices resorted to by the members of legal profession to procure clientage are mainly responsible for the degradation of this profession which was once considered to be one of the noblest vocations, the instances of fabricating false evidence, engaging professional witnesses, violating ethical standards of legal profession and dilatory tactics in collusion with the ministerial staff of the courts are some of the common practices which are truly speaking, the white collar crimes qualities often practiced by the legal practitioners. Though there is a definite code of conduct for legal profession but it is only an ornamental document. However, this is not to say that all lawyers are corrupt and unethical, quite a large number of them are most sincere and honest in their profession commanding greater respect from all sections of society, perhaps, it is because of the peculiar nature of their profession that the lawyers and advocates have to resort to these tactics in order to survive on the profession which is becoming more and more competitive with the passage of time. 35 a) Legal profession is a noble profession. b) As it is said, “As justice is the great interest of men on earth and as the lawyer is the high priest at the shrine of justice. c) Lawyers can perform well only if they maintain certain ethical moral standards. d) But today in India the lawyer’s profession is not looked with much respect. The laws governing legal profession in India are: i. The Legal Practitioners Act, 1879 ii. The Indian Bar Council Act, 1926 iii. The Advocates Act. 1961 These laws act as guidance to the legal profession. But these codes are only ornamental documents for a deviant lawyer. Examples of deviances by lawyers 1) Fabrication of false evidences. 2) Engaging professional witnesses and false security. 3) Violating professional ethics and using dilatory tactics in collusion with Court Staff. 4) Chamber practice – settlement of case in consideration of huge sum of money by lawyers. 5) There are criminal lawyers who arrange professional alibies, cooked witnesses for the gangsters. 6) Even the lawyers have their own trusted police officers who help them personally by taking heavy bribe. 36 7) Even the Investigation Officer and Medical Officers can be managed by the lawyers to help win their case. 8) Sometimes lawyers engage touts for the purpose of advertisement of professional services on percentage basis. 9) Manage opposite lawyers by payment of money. 10) Sometimes finance is provided for filing litigation against any reputed and rich person. 11) Asking indecent and irrelevant questions to the rape victims during cross examination to embarrass her. Doctors Professional deviance by doctors Medical professional is considered as a noble profession as it relieves pain and disease of people. Most of the doctors are law abiding citizens and believe in ethical medical practice and are aware of their responsibilities towards the patients. But some doctors deviate from their ethics and use wrong methods in their medical practice and forget humanitarian aspect. People have too much faith and respect for doctors even today. Doctors perform certain unethical acts during the course of their professional and violate legal norms. There are also doctors who are involved in corruptions, issuance of medical certificates, helping illegal abortions, secret services to dacoits. Dilatory tactics are also adopted by the members of this profession for extracting huge money. Generally, Doctors are treated as Gods. But sometimes these Gods can also become deviants. The Indian Medical Council prescribes code of ethics to regulate medical profession. The Acts applicable to this profession are: 1. Indian medical Council Act, 1956. 2. Indian Medical Degree Act, 1916. 39 3. Some portion of the salary from the teachers will be cut as charges towards their appointment as a teacher in the institution. 4. Corruption and favouritism at the time of admission and exams. 5. Exploitation and victimization of students. Especially for internal marks. 6. Preparation and prescribing of textbooks of dubious (doubtful) standard. 7. Private coaching by Permanent appointed teachers banned by Maharashtra Coaching Classes Ordinance, 2000. White collar crime in Education Many private educational institutions involve themselves in false practices like using fictitious documents to and fake details in order to obtain grants from the government to run their institutions. The teachers and staff are often seen to be working at very low wages than what was the signing amount. These false practices help the institution raise the high sum of illegal money. It was in 2019 when the New India Express had reported that a senior railway ticket checking staff was arrested by the Central Crime Branch, for leaking out the questions papers of the exams for the post of constables and sub-inspectors in return for money. It was in 2013 when the Time of India published an article stating that the Gujarat Technological College had been appointing engineers for lectureship were not even qualified with a B. Tech degree. Yogesh Patel, who was a lecturer of Civil Engineering at S.R. Patel Engineering College which is affiliated to Gujarat Technological University, had not even cleared his Bachelor’s degree. He had failed in some subjects like the applied mechanical and earthquake engineering. And he even went for checking papers and also received remuneration for his work. An inquiry into how a person who is not 40 eligible for the post of ad hoc that is temporary, lectureship was appointed for teaching purposes. JOURNALISTS Journalism is the activity of gathering, assessing, creating, and presenting news and information. It is also the product of these activities. Journalism can be distinguished from other activities and products by certain identifiable characteristics and practices. These elements not only separate journalism from other forms of communication, they are what make it indispensable to democratic societies. History reveals that the more democratic a society, the more news and information it tends to have. Journalists educate the public about events and issues and how they affect their lives. They spend much of their time interviewing expert sources, searching public records and other sources for information, and sometimes visiting the scene where a crime or other newsworthy occurrence took place. After they've thoroughly researched the subject, they use what they uncovered to write an article or create a piece for radio, television or the internet. Duties of journalists 1. Reporting Duties Before journalists can write about a subject, they must first gather information. They usually conduct several interviews with people involved in or having knowledge of the subject. They may also go to the scene of an event, such as a crime or an accident, to interview witnesses or law enforcement officers and to document what they see. In addition, they often search public records or other databases to find information and statistics to back up their stories. Researching a story is often similar to conducting an investigation, and journalists must sometimes ask difficult questions. 41 They may have to invest a lot of time tracking down information and people relevant to the story. 2. Working with People Even though a news article bears a single journalist's byline, the process requires significant collaboration. How good a journalist's story is often depends on how adept he is at communicating and working with others. For example, journalists take instruction from their editors regarding what angle to approach when writing a story, how long the story should be and whom to interview. They also need strong people and communication skills so they can persuade sources to talk to them. Journalists frequently approach people they don't know, whether when reporting from the scene or calling to request an interview. If they're uncomfortable around strangers, they'll make others uncomfortable as well, making it less likely that people will want to be interviewed. 3. Legal Responsibilities In addition to serving the public interest, journalists must also follow the law, especially regarding the confidentiality and privacy of the people they interview or write about. For example, while journalists often tape record their interviews to ensure accuracy, federal and state laws generally make it illegal to record a conversation without the permission of the other party. In this case, journalists must tell their sources they're recording the interview before it begins. Journalists must also understand the laws regarding libel and invasion of privacy. If a journalist is careless when reporting criminal allegations against a person, for example, he could face a defamation lawsuit if the accusations are proved untrue. 4. Ethical Responsibilities Some aspects of a journalist's job are not subject to any kind of law but are just as important. Journalists must strive to present an accurate, well-balanced explanation of the stories they cover. For example, they have an obligation to present all sides of an issue, and to conduct extensive research and talk to several sources knowledgeable about the subject. If they present only popular opinion, or if they conduct minimal research 44 provides an appropriate design. This design can be manipulated to the advantage of the contractors. 2. Inflated claim for variation – A contractor is instructed by the architect appointed by the project owner to carry out a variation to the works. The contract entitles the contractor to an extension of time and an additional payment in this circumstance. The contractor submits a written claim in respect of the variation to the architect which deliberately exaggerates the manpower, materials, equipment and time required to carry out the variation 3. False extension of time application – In case of delay on the contractor’s part, the contractor submits a written claim to the architect appointed by the project owner which alleges that the whole delay was attributable to the change in specification. The architect accepts the contractor’s claim and awards the contractor an extension of time and additional payment. The project owner pays the additional payment. 4. False variation claim – A contractor carries out work which is not in compliance with the contract specification. Under the contract, the architect is responsible for issuing variations. The contractor offers the architect a bribe if he confirms in writing that the work was carried out rsuant to a variation issued by the architect, and is therefore acceptable. The architect does so. 5. Delayed issue of payment certificates – The project owner offers the architect a future appointment on another project if the architect delays the issue of payment certificates which are due to the contractor. The architect agrees. 6. Set-off of false rectification costs – Under the contract, the architect appointed by the project owner is required to specify outstanding defects. The project owner persuades the architect to include, in the schedule of defects, additional purported defects which in fact are not outstanding. Other deviances include conducting architectural practice without due registration. The architects who 45 were involved in the 2014 Moulivakkam building collapse in Chennai were later found to have not registered with the Council of Architecture under the Act. When these professionals engage with the public sectors, they involve economic offences. In 2016, an architect in Washington, D.C was found to have bribed the official in Cleveland Veterans Administration for getting insider information so as to enable their firm to procure the contracts in bidding. In India, architects join hands with the government officials in committing white collar crimes. In construction cases, the architects are authorized to give completion certificate after the completion, and corruption happens at this place. In 2017, an architect, along with the engineers of Vadodara Urban Development Authority (VUDA), was arrested for demanding a bribe for providing the completion certificate. Deviance by Religious Leaders and organizations The history of modern India has several incidents of religious violence. In the 1947 Partition when both India and Pakistan achieved their independence from the British Raj there took place one of the greatest migrations in history when Muslims le_ India for Pakistan and Hindus and Sikhs Pakistan for India. It is estimated that between 10 and 12million people crossed the border between India and Pakistan in 1947. In the ensuing violence between the Muslims and Hindus and Muslims and Sikhs between 1.5 to 2million lost their lives. Since independence hundreds of religious riots have been recorded in Indian which thousands have been killed, mostly Muslims Minorities in India, especially Sikhs, Muslims and Christians, are being persecuted by Hindu nationalists belonging to the ruling Hindu nationalist Bharatiya Janata Party (BJP). This has been widely reported in the media and by international watch dog organizations. There has also been a rise in communal and sectarian violence in India. For instance, a Muslim has been beaten to death in the eastern Indian state of Jharkhand after reportedly asking a group to stop playing 46 loud music on New Year’s Day. Earlier this year, a Muslim man was reportedly killed by a mob who accused him of transporting beef in his car. On January 26, 2018, Hindu youth clashed with Muslims in Kasganj, Uttar Pradesh in which one person was killed. This led to riots in the town for a couple of days. Vigilante cow protection groups harassed and attacked people in states including Gujarat, Haryana, Madhya Pradesh and Karnataka in the name of upholding laws prohibiting the killing of cows. Earlier, the bodies of two Muslim cattle traders were found hanging from a tree in Jharkhand. In June, members of a cow protection group in Haryana forced two Muslim men, who they suspected were beef transporters, to eat cow dung. A woman in Haryana said that she and her 14-year-old cousin were gang-raped by men who accused them of eating beef. A team formed to reinvestigate closed cases related to the 1984 Sikh massacre identified 77 cases for further investigation and invited people to testify. The functioning of the team continued to lack transparency. Ananya Bhattarya claimed in his article published in Quartz, April 14, 2017that India is the fourth-worst country in the world for religious violence According to civil rights groups there is an extensive list of brutalities in the name of religion in India. For instance, the killing of at least 2,000 Muslims in Gujarat in2002. Since independence in 1947, the Muslim community has been subject to and engaged in sectarian violence in Gujarat state. In 2002, Hindu extremists carried out acts of violence against the Muslim minority population. The starting point for the incident was the Godhra train burning which was allegedly done by Muslims. During the incident, young girls were sexually assaulted, burned or hacked to death. These rapes were condoned by the ruling BJP, whose refusal to intervene lead to the displacement of 200,000. Death toll figures range from the official estimate of 790 Muslims and 254 Hindus killed, to 2,000 Muslims killed. Then Chief Minister Narendra Modi has also been 49 Undoubtedly, religious intolerance is very high in India. A Few Research Center analysis of 198 countries has ranked India as fourth worst in the world for religious intolerance. Tensions between religious communities, especially Hindus and Muslims, has long divided India. However, the rifts have intensified lately. Muslims in India at times experience attacks by Hindus because of alleged cow slaughter. In addition, there are multiple incidents of rioting and mob violence involving the two communities. Officials of the BJP have made declarations that India should be exclusively Hindu. Minority communities, including Muslims, Christians and Sikhs, complained of numerous incidents of harassment by Hindu nationalist groups. There is a government ban on buying cows for slaughter in animal markets. Also, there is the promotion of Hindi, and there are the appointments of Hindutva sympathizers to top posts in educational and cultural organizations. In Gujarat state anti-conversion laws do not allow people to adopt a religion without permission from the district magistrate, also hampering religious autonomy. In Haryana state the Hindu holy text, the Bhagwad Gita, has been included in the school curriculum. The Hindu nationalist wing of the governing BJP, the Rashtriya Swayamsevak Sangh (RSS) has organizes mass ghar wapsi (return to Hinduism) ceremonies, which are also viewed as an attempt to dismantle minority religions. Most troubling is the role of the BJP in religious violence in the country. The party has been complicit in many incidents of religious violence, especially against Muslims. The historical development of the BJP is intrinsically tied to its minorities, especially Muslim, populist bashing catering to its Hindu nationalist base. The development of the party took place because of this stance against minorities, especially Muslim. In 1983, right-wing Hindu zealots from the Vishva Hindu Parishad and the Bajrang Dal destroyed the 16th Century Babri mosque, declaring, without any proof. That it was built on the site of a temple destroyed by Muslim rulers. 50 Many political analysts trace the rise of the Party BJP since that event. It is believed that the demolition of the mosque was indeed the most blatant act of defiance of law in India and a watershed for Indian nationhood. Then the BJP had hoped that the demolition of the mosque would consolidate Hindu votes in its favor, but the party failed in coming into power until 1999. Later, a 2010 Allahabad court ruled that the site was indeed a Hindu monument before the mosque was built there, based on evidence submitted by the Archaeological Survey of India. This action had caused great humiliation to the Muslim community. The resulting religious riots caused at least 1200 deaths. The Government of India then blocked off the disputed site and the matter lingers on in the court. Much later, the BJP achieved its first absolute majority in parliament in 2014 and Narendra Modi became prime minister. Since then he has actively promoted Hindu nationalism and has started to implement the BJP’s Hindutva agenda. Human Rights Watch, an influential global human rights watchdog organization, in its latest World Report 2018 states: 1. Vigilante violence aimed at religious minorities, marginalized communities, and critics of the government—often carried out by groups claiming to support the ruling Bharatiya Janata Party (BJP)—became an increasing threat in India in 2017. 2. The government failed to promptly or credibly investigate the attacks, while many senior BJP leaders publicly promoted Hindu supremacy and ultra-nationalism, which encouraged further violence. 3. Dissent was labeled anti-national, and activists, journalists, and academics were targeted for their views, chilling free expression. Foreign funding regulations were used to target nongovernmental organizations (NGOs) critical of government actions or policies. 51 4. Lack of accountability for past abuses committed by security forces persisted even as there were new allegations of torture and extrajudicial killings, including in the states of Uttar Pradesh, Haryana, Chhattisgarh, and Jammu and Kashmir…. Mob attacks by extremist Hindu groups affiliated with the ruling BJP against minority communities, especially Muslims, continued throughout the year amid rumors that they sold, bought, or killed cows for beef. 5. Instead of taking prompt legal action against the attackers, police frequently filed complaints against the victims under laws banning cow slaughter. As of November, there had been 38 such attacks, and 10 people killed during the year. In July, even after Prime Minister Narendra Modi finally condemned such violence, an affiliate organization of the BJP, the Rashtriya Swayamsevak Sangh (RSS), announced plans to recruit 5,000 “religious soldiers” to “control cow smuggling and love jihad.” So-called love jihad, according to Hindu groups, is a conspiracy among Muslim men to marry Hindu women and convert them to Islam. The Indian media acknowledges that hate crimes are taking place in India. Lynching of Muslims suspected of consuming beef, a taboo for Hindus, have become commonplace. Paranoid extremist Hindus accuse Muslim men of engaging in “love jihad” or converting Hindu women by seducing them into marriage. Christians also face the same sort of allegations. Today, it is common that Hindu extremists beat up a Hindu- Muslim couple in India. Recently, a court annulled a marriage between a Muslim man and a 25-year-old Hindu woman in medical school. Although Modi constantly proclaims his aim is to develop India for all Indians, Muslims are barely represented in BJP governments in the center and in the states. The chief minister Modi has selected to govern Uttar Pradesh is renowned for his hostility to Muslims. The state is the most important one in India because of its population and political significance. Meanwhile, the voices of the country’s vulnerable Muslim minority are 54 The 1947 Act declared such corrupt acts offences as taking bribe, misappropriation, obtaining a pecuniary advantage, possessing assets disappropriate to income, and abusing official position. However, the authority for prosecution was vested only in the department authorities and not in the Central Bureau of Investigation (CBI). The 1988 Act enlarged the scope of the term ‘public servant’ and included a large number of employees within its ambit. Besides the employees of the central government and the union territories, the employees of public undertakings, nationalized banks, office-bearers of cooperative societies of the central and the state government receiving financial aid, employees of the University Grants Commission (UGC), vice- chancellors, professors, and scientists in institutions receiving financial aid from the central or state governments or even from the local authorities have all been declared as public servants. However, MPs and MLAs, even though performing ‘public duties’, have been kept out of the ambit of the Act. The Act covers all the ‘corrupt’ acts as covered by the 1947 Act, (bribe, misappropriation, obtaining pecuniary advantage, possessing assets disproportionate to income, etc.). The Act extends to whole of India except Jammu and Kashmir and applies to all Indian citizens, whether living in the country or outside it. If the offence against the public servant is proved in the courts, it is punishable with imprisonment of not less than six months but extending to a maximum period of five years. Six months imprisonment is thus mandatory and the courts have no discretion in this regard. If public servant is found committing offence habitually, he is to be punished with imprisonment of not less than two years but not more than seven years, and also a fine. 55 Salient Features Essential feature of this Act ➢ it makes it obligatory for the Court to make certain presumptions of guilt against the accused radical departure from the normal rule under which the prosecution is required to prove ‘beyond doubt’ all the ingredients of an offence. Section 1 - gives extent of the ACT Section 2 – defines terms like public servant, Government, etc. The term ‘public servant’ as contained in Section 21 of IPC has been enlarged to include a large number of employees within the ambit of definition by incorporating Sections 2(c)(iii) and 2(c)(ix) covering employees of Nationalised Banks and office bearers of Co-operative societies of the Central and State Section 3 This Section empowers Central Government and State Government to appoint Special Judges to try the following offences punishable under this Act any conspiracy to commit or any attempt to commit offences specified in above Section 4 ❑ Specifies the jurisdiction of the special Judges appointed in Sec 3. ❑ offences described in Sec 3 are to be tried by Special Judges. ❑ Special Judge also has powers to try any offence, other than an offence specified in Sec 3. Section 5 Describes the procedure to be followed and the powers of Special Judge. 56 Special judge ➢ can take cognizance of offences without the accused being committed to him ➢ may tender a pardon to such person who makes a true disclosure of the whole circumstances relating to the offence Provisions of Cr. P. C. shall apply to the proceedings before the Special Judge Section 6 ➢ Authorises Special Judge to conduct a trial in a summary manner, in cases where violation of Section 12-A(1) of Essential Commodities Act, 1955. ➢ and pass upon any person a sentence of imprisonment for a term not exceeding one year. ➢ Convicted person will not have any right to appeal against such summary trial if the term of imprisonment does not exceed one month Section 7 If a public servant is charged with Accepting any gratification other than legal remuneration in respect of an official act, as a motive or reward for doing any official act or showing any favour or disfavour to any person in official function Section 8 If a public servant is charged with Accepting or attempting to obtain any gratification by corrupt or illegal means, to do any official act Section 9 59 Section 18 A Police Officer empowered to investigate under Section 17 can even inspect any bankers’ books in so far as they relate to the accounts of the person suspected to have committed that offence. Section 19 Before taking cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, court shall obtain prior sanction of the authority competent to remove the public servant from office. Section 20 Deeming fictions in regard to the offences committed under section 7 or 11 or 12, 13 (1) (a) or (b) or 14 (b) It shall be presumed that the public servant accepted or obtained the gratification, unless the contrary is proved. Section 21 Defines the accused public servant as a competent witness to disprove the charges made against him. He can give evidence on oath to defend himself. Section 22 Describes application of Cr.P.C. 1973 in respect of Sections 243(1), 309(2), 317(2) and 397(1), to the proceedings under ‘the Act’ with certain modifications. Section 23 Deeming fiction and enjoins upon the authority under ‘the Act’ to deem the public servant accused of the offence U/S 13(1) (c), i.e. in charge of property without specifying particulars. 60 Section 24 Grants immunity to the bribe giver from prosecution proceedings U/S 12. Section 25 PC Act not interfere with the procedure applicable to Military, Naval and Air Force Acts. Section 26 Special Judges appointed under Criminal Law Amendment Act, 1952 shall be deemed as Special Judge. Section 27 Authorises High Court to exercise all powers of appeal and revision conferred by the Cr. P. C. as if the Court of the Special Judge were a Court of Session trying cases within the local limits of the High Court Section 28 Nothing contained in ‘the Act’ shall exempt any public servant from any proceeding which might be instituted against him Section 29 Lists various amendments/ substitutions/ insertions, in respect of authorities, time limit, Schedules, Paragraphs etc., in the Criminal Law Amendment Ordinance, 1944. Section 30 Repeal and saving. Section 31 Allows application of Section 6 of the General Clauses Act, 1897 in place of sections which had been repealed. 61 Corruption Laws in India Public servants in India can be penalized for corruption under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. The Benami Transactions (Prohibition) Act, 1988 prohibits Benami transactions. The Prevention of Money Laundering Act, 2002 penalizes public servants for the offence of money laundering. India is also a signatory (not ratified) to the UN Convention against Corruption since 2005. The Convention covers a wide range of acts of corruption and also proposes certain preventive policies. Key Features of the Acts related to corruption Indian Penal Code, 1860: • The IPC defines “public servant” as a government employee, officers in the military, navy or air force; police, judges, officers of Court of Justice, and any local authority established by a central or state Act. • Section 169 pertains to a public servant unlawfully buying or bidding for property. The public servant shall be punished with imprisonment of up to two years or with fine or both. If the property is purchased, it shall be confiscated. • Section 409 pertains to criminal breach of trust by a public servant. The public servant shall be punished with life imprisonment or with imprisonment of up to 10 years and a fine. The Prevention of Corruption Act, 1988 • In addition to the categories included in the IPC, the definition of “public servant” includes office bearers of cooperative societies receiving financial aid from the government, employees of universities, Public Service Commission and banks. • If a public servant takes gratification other than his legal remuneration in respect of an official act or to influence public servants is liable to minimum punishment of six months and maximum punishment of five years and fine. The Act also penalizes a public servant for taking 64 • All cases under the Prevention of Corruption Act, 1988 are tried by Special Judges who are appointed by the central or state government. Corruption is a worldwide phenomenon. It has become the part of our daily life. It is detestable as it has entered the very roots of our society. Corruption, nepotism, dishonesty is increasing rapidly. Santhanam Committee Report on Prevention of Corruption It was created by Central Government in 1960. The chairman of the committee was K. Santhanam. This committee gave its report in 1962. The committee observes that “Corruption cannot be eliminated or reduced unless preventive measures are been taken and implemented in a proper manner. Preventive measures must include administrative, legal, social, economic and educative measures.” On the recommendations of this committee, central government set up Central Vigilance Commission in 1964 for looking into the cases of corruption against central government. Recommendations by the committee • A thorough study has to be done of each department, undertaking or ministry. The study should also mention preventive measures to be taken. • Citizens should be educated and made aware of their rights and responsibilities. They should know how the government operates. • Various facilities such as housing, medical etc. should be given to the employees. There must be an increment in their salaries. • Recreational activities should be conducted for the employees of each department. • Companies and businessmen are required to keep detailed accounts of expenditure. • Administrative officers should be selected with due care. Only those who satisfy the requirements to the fullest must be appointed for the key posts. • The government servants cannot accept any private commercial employment for two years after retirement. 65 • Administrative delays should be reduced to avoid corruption practices. • The licenses and permit system along with taxation laws must be reviewed. • The higher authorities should make sure that laws are properly enforced. • Media should play a positive role in encouraging honesty and discouraging corruption. 66 Unit –III POLICE DEVIANCE Police Indian Police Act, 1861 enacted by British still governs the Police System in India. Role of Police: ➢ Maintenance of law and order situation. ➢ Patrolling and surveillance ➢ Implement Preventing function ➢ Investigation of crimes ➢ Arrest criminals ➢ Interrogation of offenders and suspect ➢ Search and Seizure ➢ To assist the Prosecutor ➢ Perform general welfare function. ➢ Control juvenile delinquency. Deviance by police Police deviance occurs when law enforcement officers behave in a manner that is “inconsistent with the officer's legal authority, organizational authority, and standards of ethical conduct” Police Atrocities Unconstitutional – Third Degree Methods: Case – Niranjan Singh v. Praphakar Rajaram 69 Corruption has been rampant in Indian polity, not only at the electoral level, but also at the Executive level. In addition to this, India stands witness to an alarmingly high number of people with criminal background who have polluted Indian polity. The criminalization of our political system has been observed almost unanimously by all recent committees on politics and electoral reform. Criminalization of politics is of forms, but the most alarming among them is the significant number of elected representatives with criminal charges pending against them. Political Control over the Police The image of the police in this country has always been bad. With the passage of time, it has only become worse. Citizens are highly dissatisfied with the quality of policing. There are many reasons for the poor quality of policing, but a major reason identified is the type of control that has been exercised over the police. Control over the police is exercised by the state government. The situation resulting from wrong control over the police has become worse during the last few decades because of increasing criminalization of politics. The fact that the rule of law is gradually being replaced by the rule of politics is a cause of concern to all who are interested in establishing good governance in the country. The Padmanabhaiah Committee too has shown this concern. Reasons for Criminalization of Politics Despite the best intentions of the drafters of the Constitution and the Members of Parliament at the onset of the Indian Republic, the fear of a nexus between crime and politics was widely expressed from the first general election itself in 1952. In fact, as far back as in 1922, Mr. C. Rajagopalachari had anticipated the present state of affairs twenty five years before Independence, when he wrote in his prison diary: “Elections and their 70 corruption, injustice and tyranny of wealth, and inefficiency of administration, will make a hell of life as soon as freedom is given to us. . .” Interestingly, observers have noted that the nature of this nexus changed in the 1970s. Instead of politicians having suspected links to criminal networks, as was the case earlier, it was persons with extensive criminal backgrounds who began entering politics. This was confirmed in the Vohra Committee Report in 1993, and again in 2002 in the Report of the National Commission to Review the Working of the Constitution (NCRWC). The Vohra Committee report pointed to the rapid growth of criminal networks that had in turn developed an elaborate system of contact with bureaucrats, politicians and media persons. Money – The Root of the Problem The primary function of money is to serve as a medium of exchange, and as such it is accepted without question in final discharge of debts or payment of goods or services. The term ‘money’ generally includes banknotes as well as coins, although it may be limited to such of each as are legal tender at the time and place in question. Money has been regarded as bone of contention between friends and relatives. It is said lend money to a person if you want to spoil him or make foe (enemy), money – wealth, property or estate have always caused family, feuds (rivalry), and even murders for it is said that all is fair in love and war. Money is devil’s child and is responsible for many mischief and evils. Some people think that wealth can bring happiness in life but it is not so. Money is the root cause of many evils like corruption, black marketing, smuggling, drug trafficking, tax evasion, and the buck does into stop here it goes to the extent of sex tourism and human trafficking. Corruption “Just as it is impossible not to taste the honey or the poison that finds itself at the tip of the tongue, so it is impossible for a government servant 71 not to eat up, at least, a bit of the king’s revenue. Just as fish moving under water cannot possibly be found out either as drinking or not drinking water, so government servants employed in the government work cannot be found out (while) taking money (for themselves).” Corruption in India is also a legacy of the colonial system. As colonial governments were generally regarded as alien and hence illegitimate, consequently cheating and deceiving such an alien power was considered a fair game. The roots of political corruption in developing states thus lie in the colonial order or native tyrannical rule from which they have emerged as independent democratic states. Democracy implies rule of law and holding of free elections to ascertain the will of the people. But in quite recent times this peaceful process of social change has been much vitiated. Criminalization of politics has become a headache for the Indian democracy. It’s shameful to admit that in the world’s largest democracy the cult of the gun prevails; Goondas and Criminals are hired to kill political rivals etc. Vohra Committee Report Twelve bomb blasts that shook Bombay on 13th March 1993, had involved the collaboration of a diffuse network of criminal gangs, police and customs officials as well as their political patrons. A commission was instituted to investigate the so-called nexus. The Vohra (Committee) Report was submitted by the former Indian Union Home Secretary, N.N. Vohra, in October 1993. It studied the problem of the criminalization of politics and of the nexus among criminals, politicians and bureaucrats in India. The report contained several observations made by official agencies on the criminal network which was virtually running a parallel government. It also discussed criminal gangs who enjoyed the patronage of politicians, of all parties, and the protection of government functionaries. It revealed that 74 elected representatives, ministers and legislators have to first create a climate of integrity as an example for others to follow. Padmanabhaiah Committee Report The Padmanabhaiah Committee on Police Reforms (The Committee) was set up by the Ministry of Home Affairs. Government of India in January 2000. In addition to the Chairman, a former Union Home Secretary, the Committee consisted of four members, who were all policemen-two retired and two serving. The report was submitted by the Committee to the central government in October, 2000. Regarding the Politicization and Criminalization of Police, the Committee pointed out that politicization and criminalization of the police force has been growing. According to the Committee, “Corruption is the root cause of both politicization and criminalization of the police.” And criminalization of police cannot be de-linked from criminalization of politics. It is the criminalization of politics, which has produced and promoted a culture of impunity that allows the wrong type of policeman to get away with his sins of commission and omission. The Committee ascribes the growing political interference in the police administration and its work to “recruitment and transfer policies/procedures, failure of political leadership and the failure of police leadership.” The Committee is of the view that most problems of police are due to arbitrary and frequent transfers of police personnel of different ranks and once the powers in this regard are given to the departmental hierarchy, political interference in policing will be reduced. To reduce political interference, the Committee has suggested that “(i) coordination with the secretariat should be the function of the DG/Commissioner of Police” or their nominee and (ii) any officer approaching a politician for transfers/postings, training, rewards etc, should be severely dealt with.” 75 Lokpal Institution The word "Lokpal" is derived from the Sanskrit word "loka" meaning people and "pala" meaning protector or caretaker. Together it means "protector of people". The aim of passing such a law is it to eradicate corruption at all levels of the Indian polity. For a nation to develop it needs to have an extremely well organized and meticulously planned organization. A failure of the administrative set up reflects on the holistic growth of the state, the biggest reason for the failure of the administration can be attributed to the ill effects of corruption. The growth of the country has been plagued by corruption and it has extended its wings throughout the entire administrative set up. To root out the menace of corruption the institution of "ombudsman" came up and has played a great role in fighting administrative malpractices. Historical Background The institution of ombudsman originated in Scandinavian countries. The institution of ombudsman first came into being in Sweden in 1713 when a "chancellor of justice" was appointed by the king to act as an invigilator to look into the functioning of a war time government. From 1713 the duty of this ombudsman was to mainly ensure the correct conduct of royal officials. The institution of the ombudsman was firmly incorporated into the Swedish constitution from 1809. It was defined as the parliamentary body supervising judges, government and other officials, and ensuring their compliance with laws and other legal regulations. The embedding of the ombudsman in the constitution was completed by a further law specifying in greater detail the scope of his activities and his legal authority. The institution of the ombudsman developed and grew most significantly in the 20th century. Ombudsman institutions were on the increase especially in the period after the Second World War when almost a hundred of them were established. The institutions took varied forms and 76 modifications depending on the historical, political and social background of the given country. In India the ombudsman is known as Lokpal or Lokayukta. The concept of constitutional ombudsman was first proposed by the then law minister Ashok Kumar Sen in parliament in the early 1960s.The term Lokpal and lokayukta were coined by Dr.L.M.Singhvi as the Indian model of ombudsman for the redressal of public grievances, it was passed in Lok Sabha In the year 1968 but it was lapsed with dissolution of Lok Sabha and since then has lapsed in the Lok Sabha many times. Need For Lokpal There are several deficiencies in our anti-corruption systems because of which despite overwhelming evidence against the corrupt, no honest investigation and prosecution takes place and the corrupt are hardly punished. The whole anti-corruption set up ends up protecting the corrupt. 1) Lack of Independence Most of our agencies like CBI, state vigilance departments, internal vigilance wings of various departments, Anti- corruption Branch of state police etc. are not independent. In many cases, they have to report to the same people who are either themselves accused or are likely to be influenced by the accused. 2) Powerless some bodies like CVC or Lokayukta are independent, but they do not have any powers. They have been made advisory bodies. They give two kinds of advice to the governments “to either impose departmental penalties on any officer or to prosecute him in court. Experience shows that whenever any minister or a senior officer is involved, their advice is rarely followed. 3) Lack of Transparency and internal accountability in addition, there is the problem of internal transparency and accountability of these anti- corruption agencies. Presently, there isn’t any separate and effective mechanism to check if the staff of these anti-corruption agencies turns 79 not be published or made available t anyone. The Lokpal will also have jurisdiction over Ministers and MPs but not in the matter of anything said in Parliament or a vote given there. Lokpal jurisdiction will cover all categories of public servants. Group A, B, C or D officers defined as such under the Prevention of Corruption Act, 1988 will be covered under the Lokpal but any corruption complaint against Group A and B officers, after inquiry, will come to the Lokpal. However, in the case of Group C and D officers, the Chief Vigilance Commissioner will investigate and report to the Lokpal. However, it provides adequate protection for honest and upright Public Servants. Also any person who is or has been in charge (director / manager/ secretary) of anybody / society set up by central act or any other body financed / controlled by central government and any other person involved in act of abetting, bribe giving or bribe taking. Salient features of The Lokpal and Lokayukta Act, 2013 1) The Lokpal and Lokayukta Act, 2013 provided for Lokpal at the Centre having jurisdiction of trying cases of corruption against all Members of Parliament and central government employees. The Lokayukta have functions similar to the Lokpal, but they function on a state level. 2) The office of the Lokpal and Lokayuktas deals with charges of corruption against any public official and includes the office of the prime minister of the court but with reasonable safeguards. Both the Lokpal and the Lokayukta deal with charges of corruption against the government and its employees, in fact they even conduct investigations and based on the findings from such investigations they conduct trials. 80 3) The act lays down the provision to set up a Lokayukta and its set of powers for each state without clearly defining the extent of the same, this has led to various different Lokayukta being setup, some with more power than the others. In order to create uniformity a proposal to implement the Lokayukta uniformly across Indian states has been made. The Act provides that all states set up office of the Lokpal and/or Lokayukta within one year from the commencement of the said Act.On the other hand, Lokpal will consist of a chairperson and a maximum of eight members, of which 50% will be judicial members, 50% members of Lokpal shall be from SC/ST/OBCs, minorities and women. 4) The newly enacted Lokpal Act provides for confiscation and attachment of any property of any government official which he or she has come to own through corrupt practices and the same can be done during pendency of proceedings against the said official. 5) The Lokpal Act mandates that all public officials should furnish the assets and liabilities of themselves as well as their respective dependents. In fact the said Act even guarantees protection to any government official who acts as a whistle blower and as an ancillary a Whistle Blowers Protection Act has also been enacted Powers of Lokpal 1) It has powers to superintendence over, and to give direction to CBI. 2) If it has referred a case to CBI, the investigating officer in such case cannot be transferred without approval of Lokpal. 3) Powers to authorize CBI for search and seizure operations connected to such case. 4) The Inquiry Wing of the Lokpal has been vested with the powers of a civil court. 5) Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arisen or procured by means of corruption in special circumstances 81 6) Lokpal has the power to recommend transfer or suspension of public servant connected with allegation of corruption. 7) Lokpal has power to give directions to prevent destruction of records during preliminary inquiry. Lokayukta in Karnataka In the State of Karnataka, the history of the Lokayukta institution could be traced back to 1978 when Justice C. Honnaiah, a former Chief Justice of Rajasthan High Court, was appointed the first Lokayukta under an ordinance which was short lived. The Ordinance was allowed to lapse. However, when the Janata Party came in to power in 1983 as a fulfillment of its election pledge made to the people for ―clean and value based policies‖, the R K Hegde Government introduced a Bill in the legislature in March 1983. The Bill was aimed at ending political and administrative corruption. Even after the passage of the Bill and the clearance of the Union Government in October 1983, the functioning was delayed as none in the panel of names approved by the Government and the leader of the opposition was ready to head it. As a result of this the State Government not only requested the Union Government to suggest some names but the emoluments and the service conditions of the Lokayukta were made better and attractive. Finally, Justice A.D. Koshal, a retired judge of the Supreme Court of India, was sworn in as the Lokayukta on 15th January 1986. The appointment of the Lokayukta, it may be pointed out here, was one of the major planks of the Janata Government of Hegde as part of its declared commitment to purity in public life. Appointment of Lokayukta Section 3(1) of the Karnataka Lokayukta Act, 1983 provides for a mode of appointment of the Lokayukta and Upa-lokayukta or Upalokayuktas. only an independent institution is able to render justice 84 investigated by him on a complaint made to him under Section 9 of the Act by any aggrieved person. This is because the Act reserves the right to make the final order against the delinquent public servant with the competent authority in a matter referred by it to the Lokayukta under Section 7(2A) of the Act. Exemption from the Jurisdiction of Lokayukta However, there are certain matters which are not subjected to investigate by the Lokayukta or Upa-lokayukta. These have been spelt out in section 8 of the Karnataka Lokayukta Act, 1983. According to this section 8 (1) of the Act, the Lokayukta or an Upa-lokayukta shall not conduct any investigation under this Act in the case of a complaint involving a grievance in respect of any action, - (a) If such action relates to any matter specified in the Second Schedule; or (b) If the complainant has or had, any remedy by way of appeal, revision, review or other proceedings before any tribunal, Court officer or other authority and has not availed of the same. Section 8(2) of the Act, excludes from the jurisdiction of the Lokayukta or Upa-lokayukta investigation into any action in respect of the following circumstances: (i) Any action in respect of which a formal and public enquiry has been ordered with the prior concurrence of the Lokayukta or an Upa-lokayukta, as the case may be; (ii) Any action in respect of a matter which has been referred for inquiry, under the Commission of Inquiry Act, 1952 with the prior concurrence of the Lokayukta or an Upa-lokayukta, as the case may be; (iii) Any complaint involving a grievance made after the expiry of a period of six months from the date on 85 which the action complained against become known to the complainant; or (iv) Any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place. Functioning of Lokayukta The primary objective of the office of the Lokayukta is to investigate and counter corruption and mal administration in the functioning of the government and the public offices. Any aggrieved person can seek justice from the Lokayukta without the long delays and costs involved in filing a suit in the Courts of law. There can be two types of complaints that may be submitted to the Lokayukta, viz. grievances and allegations. The Lokayukta Act specifies against whom grievances or allegations could be filed as well as the procedure for filing complaints. A grievance is defined as a claim by a person that he sustained injustice or undue hardship as a consequence of maladministration. For the purpose of grievance Mal-administration means action taken or purporting to have been taken in the exercise of administrative function in any case where (a) Such action or the administrative procedure or practice governing such action is unreasonable, unjust, oppressive or improperly discriminatory; (b) There has been willful negligence or undue delay in taking such action or the administrative procedure or practice governing such action involves undue delay. Powers of the Lokayukta and Upa-lokayukta The Office of the Lokayukta institution is endowed with wide latitude of investigating power, virtually free from legislative, executive and judicial 86 intrusion. The proceeding before the Lokayukta or an Upa-lokayukta shall be deemed to be a judicial proceeding within the meaning of Section 193 of the Indian Penal Code. To achieve the objectives of the Act, the Office of the Lokayukta and Upa-lokayukta is empowered with Criminal as well as Civil Court powers. 1. Power to investigate The procedure regarding the investigation of complaints is almost the same in the states of Orissa, Maharashtra, Bihar, Rajasthan, Uttar Pradesh, Assam and Karnataka. 2. Power to issue search warrant The Act confers power to Lokayukta or the Upa-lokayukta to require any public servant or any person who can furnish any information or produce documents relevant in the investigation to furnish such information or produce such documents by issuing search warrant. 3. Power to issue summons and require attendance For the purpose of this Act, The Lokayukta and Upa-lokayukta has the power of the Civil Court while trying a suit under the Civil Procedure Code. For the purpose of any investigation (including the preliminary inquiry, if any, before such investigation) under this Act, the Lokayukta or an Upa-lokayukta may require any public servant or any other person who, in his opinion is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such document. 4. Power to Direct Public Servant to Vacate Office After investigation into a complaint the Lokayukta or an Upa- lokayukta is satisfied that the complaint involving an allegation against the public servant is substantiated and that the public servant concerned should not continue to hold the post held by him, the Lokayukta or the Upa-lokayukta shall make a declaration to that effect in his report under subsection (3) of Section 12 of K.L Act, 1984. 89 Unit- IV DEVIANCE IN MEDICAL PROFESSION & LENTIN COMMISSION REPORT Introduction Professional deviance in medical field - a time to rethink. Medical profession is the noble profession as it directly concerns with saving the life of human being. This professional deviance not only harm the patient's health but also encouraging white collar criminality in the medical profession and the society. Doctors are considered as most reputed and responsible citizens of the society. They are considered to be inculcated with principles of moral and ethics. But, sometimes it has been heard about commission of illegal acts by medical professional violating their professional and legal norms. Usually in the entire tenure of medical profession, the health professionals could add good money in to his income and pay taxes honestly. But there are also doctors who involved in the corruptions, including issuance of false medical certificates, helping illegal abortions, providing secret services to criminals, by giving expert opinion in criminal cases leading to acquittal of true criminals and selling sample drugs and medicines to patients or chemists. Doctors are also human beings having their own needs of life. They are considered as white collar personality without any defect and expected to have morals, ethics and professionalism while treating their patients. But as a human being to fulfill the never ending demands, some doctors get involved in unethical practice in their profession leading to white collar crimes. “Deviation” is interpreted as a frank violation of an operational rule, or a variation in practice that departs from standard and increase in risk to 90 people. Professor Sutherland defined White collar criminal (WCC) as, “A person of upper socio-economic class who violates the criminal law in the course of his occupational or professional activities”. James Cameron, an eminent journalist described in the following words: “it is denied by nobody indeed, the totality and persuasiveness of India, corruption is almost a matter of National pride”. A White Collar Crime is more dangerous to society than ordinary crimes, because the financial loss to the society from WCC is much more than other known crimes such as burglaries, robberies etc. and the injury or damage caused as a result of WCC affects large body of society. In the recent era White Collar Crime are mostly related to health, wealth, weight and measures, food, standards, insurance, banking, tax matters and computer related crimes such as banks frauds, insurance frauds, counterfeiting, drug trafficking, human trafficking are all master planned crimes by well educated persons or professionals. Implication of medical professional deviance Financial loss to the patients Financial loss of patient and society at large from WCC is probably much more than the financial loss from traditional crimes. Social damage to morals Ordinary crimes cause some inconvenience to the victims only and occasionally, when repeated in succession causes great loss to general community. But medical professional deviances destroy the moral and ethics and promote social disorganization. Since these crimes are generally causes violation of trust, they create the feeling of distrust towards the medical profession not for that victimized patient but also evenly spread out to the entire community. 91 Causes Increased industrialization, urbanization, growing competitive tendency, greed and lack of morals, ethics and lack of vigorous punishment are some causes of any types of deviance. There are some additional causes for such deviances are as follows. 1. Increased professional deviance due to strong back up of corrupt politician, who always support them to perform their illegal activities. In return such deviant professionals finance politicians at the time of election or help them in any illegal acts. 2. Majority of people in our country are poor and illiterate and economically backward. They blindly follow what the health professional advised to them due to the trust on the doctors. They do not have adequate knowledge so they become easy prey for exploitation by such professionals. Whereas educated people who are well aware of such illegal acts of these professional deviants, are helpless to fight against such practices based on money, flattery and opportunism. 3. Changing tendency of people to accumulate wealth by all means, when they find acute shortage of jobs and other opportunities for their children, as there is no guarantee from the State to provide livelihood. Difference between Medical negligence and professional deviance Negligence is define as, “Omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do”. In cases of medical negligence, the person is bound to have certain standard of duty and care by his professional ethics and he fails to accomplish that duty and care. In negligence, there must be element of 'guilty mind' i.e. mens rea and also due to that act the patient has suffered injury /damage. Also subsequent damage should be closely related (nexus) or inter related. 94 The 289 pages of the report, again in the restrained words of Justice Lentin, 'describe and illustrate the ugly facets of the human mind and human nature, projecting errors of judgment, misuse of ministerial power and authority, apathy towards human life, corruption, nexus and quid pro quo (a favour or advantage granted in return for something) between unscrupulous licence holders, analytical laboratories, elements in the Industries Department controlling the awarding of rate contracts, manufacturers, traders, merchants, suppliers, the Food and Drugs Administration (FDA) and persons holding ministerial rank. None of this will be palatable in the affected quarters. But that cannot be helped.’ THE FACFS OF THE CASES Chapter III of the Lentin report summarizes the case histories of the 14 patients who died from the poisonous effects of diethylene glycol present in the glycerol given to them. Four of them had brain tumours; three were under treatment for head injury; one was being investigated for cerebral stroke; three had glaucoma; two had cataracts; one had iridocyclitis and one had undergone keratoplasty. The early clinical manifestations of nephrotoxicity appeared within one to seven days of exposure to the toxic chemical. In all fourteen cases the average time of death was four to five days. Vomiting, gastrointestinal bleeding, abdominal pain, guarding and rigidity, distension and diarrhea formed the early features. Over the next two to three days oliguria, anuria, acidosis and instability of blood pressure followed. Infusion of sodium bicarbonate, administration of acetazolamide, mannitol, frusemide and the use of dialysis (in twelve of the fourteen patients) were of no help. Autopsy showed acute necrosis of the renal cortices (with destruction of glomeruli and proximal tubules), centrilobular hepatic necrosis, extensive adrenal hemorrhage and changes secondary to renal failure. 95 Two patients had died by 24 January 1986. Glycerol was first incriminated on 27 January. Diethylene glycol was recognized as the toxic agent on 28 January. The animal experiments were concluded on 31 January. As pointed out by Justice Lentin, glycerol for medical use must have a concentration of glycerine not less than 98% and moisture not more than 2%. 'As against this, the glycerol sold by Alpana Pharm a to J.J. Hospital was: Diethylene glycol 18.5% Water 21 % Polyglycol 51 % Glycerol 9 % RECOMMENDATIONS OF THE COMMISSION 'If I could have it my way, several would be candidates for instantaneous dismissal from service and certain others for permanent cancellation of their licences. However, the rule of the law must prevail. Administratively, the J.J. Hospital, at one time reputedly the best-run government hospital in all Asia, is today in shameless. Evidence reveals total lack of administrative or medical control or supervision by the Dean and Superintendent. If there had been, I have no doubt this ghastly incident could have been averted. The J.J. Hospital is a gigantic complex. Hence it must be managed administratively and medically on the footing of an industry and in its present state of shameless, must be resuscitated on a war footing. In the present set-up, the Dean, even with the best of intentions (which however were lacking here), cannot possibly hope to cope up with administrative and medical problems single-handed. Put a professional in administrative charge and give him a free hand with clearly laid down parameters. ‘ 96 Justice Lentin recommended two Deans--one on the medical side and one for administration, the two interacting harmoniously. 'A reasonable tenure must be assured to the Deans so as to ensure their involvement and commitment to the institution. This would prevent Deans considering themselves merely as birds of passage and would also obviate their having an eye to aggrandizement by way of promotion, or preventing their transfers, to which end, ministers, bureaucrats and politicians must be pandered to and time wasted in Mantralaya rather than in the performance of their duties in the J.J. Hospital. The Deans must be persons of independence and not compromise on principles or be subservient to ministers, politicians and bureaucrats in the discharge of their duties or in order to survive. The Deans must be given more power to operate within the budget for local purchases instead of having to run to "higher authority" every time for the purpose. Commenting on the FDA, Justice Lentin pointed out that the Drugs and Cosmetics Act 1940 and Rules are comprehensive and contain requisite provisions and safeguards to ensure public health and safety. 'Unfortunately, by reason of rampant corruption, nepotism and total lack of accountability prevailing in the FDA, and ministerial interference, the provisions of the Act and Rules are observed more in the breach than in their compliance. Justice Lentin emphasized that it was absolutely imperative that the provisions of the Act and Rules be scrupulously followed and implemented by the FDA officers without fear or favour. The FDA must be headed by an assertive Commissioner of proven administrative ability, preferably drawn from the Indian Administrative Service, Indian Police Service or the Defence Services, capable of withstanding ministerial, bureaucratic and political pressure without