PGCL Moot Court Society
Dec 3, 20214 min
- Bhakti Chandan and Vidhi Mehta
Introduction
Transparency International, a global coalition against corruption, defines corruption as, ‘the abuse of entrusted power for private gain’.[1]
India is a country known for its widespread corruption problems, while various legislative attempts have been made to curb the problem - one of them being The Prevention of Corruption Act, 1988, the problem persists. India continues to rank on the higher side of the Corruption Perception Index (CPI), its latest rank being 86 out of 180 nations for the year 2020. According to a survey conducted by Transparency International it was estimated that India loses approximately 26 thousand crores annually to corruption with the health sector being its second-largest contributor.
Thus, a country that was already stuck in the clutches of one pandemic was forced to deal with another - the novel Coronavirus (Covid- 19), an infectious disease, which was first identified in December 2019 in Wuhan, China. As this virus continued to spread globally, the World Health Organization declared it as a global pandemic on 11.03.2020. Following this situation, governments across the globe were forced to take rapid measures to address the Covid- 19 pandemic.
The Tale of two Pandemics
India imposed its first nationwide lockdown on 24.03.2020 to curb the spreading of this virus. After multiple lockdown extensions, ‘Janta curfews’, and the desire to break free from the clutches of a monotonous lockdown came a period of unfathomable chaos, trauma, and tragedy.
The second wave of the Coronavirus wreaked havoc on India's already precarious healthcare system, pushing doctors and nurses to their limits; leaving hospitals short on beds, medications, oxygen cylinders, and ventilators. As hospital wards were crammed with more dead patients than alive ones and parks transformed into mass cremation grounds, the nation witnessed the inadequacy of the government to fill these voids in the healthcare system. Amid this tragedy, there emerged a group of "pandemic profiteers" who took upon the role of filling these voids. Their black market of medical supplies boomed with oxygen cylinders, ventilators, illegal plasma, Remdesivir vials, and other essential goods.
These ‘pandemic profiteers’ gambled with the lives of patients by repainting and selling fire extinguishers as oxygen cylinders and selling thousands of vials of Remdesivir that were nothing more than vials of glucose, water, and salt, thus, posing a massive public health risk. As India gasped for every breath of air, oxygen cylinders, and ventilators were sold at exorbitant prices. Thus, in the wake of these tragic conditions, the question arises: where did the billions of dollars that were raised by the PMCares Fund, 2020 disappear?
The Saga of the PMCares Fund
The PMCares Fund was established in 2020 to raise funds for an effective Covid- 19 response regime. However, it was established as a charitable trust instead of a public authority thus, keeping it outside the ambit of the Right to Information Act, 2005. From the very little information that is available to us, it is estimated that the PMCares Fund received about 3000 crores out of which 2300 was approximately spent on buying some 60,000 ventilators. However, the Ministry of Health claims to have dispatched only about 20,000 of them, hence the original question sustains, where was the rest of the money spent? What happened to the remaining 40,000 ventilators?
The Right to Information Act, 2005, was framed for the sole purpose of providing a transparent system of governance thereby reducing corruption, but the very fact that this fund was kept outside the ambit of the Right to Information Act, 2005, shows the non-transparency of the government in these trying times.
The PMCares Fund, though not formed by a public authority, was formed by a government official to protect and serve the interests of the public at large, thus, falling under the ambit of the Prevention of Corruption Act, 1988 that clearly states that ‘any person who holds an office by virtue of which he is authorized or required to perform any public duty’[2] is a public servant. Consequently, the Act defines ‘public duty’ as a ‘duty in the discharge of which State, the public or the community at large has an interest’.[3]
As a result, the PMCares Fund and various private hospitals and individuals, who may not fall under the ambit of ‘public authority’ reasonably fall under the ambit of a ‘public servant’ performing their ‘public duty’ in times of crisis, and thus, can be held liable under the Prevention of Corruption Act, 1988 for a breach of their duties. The very crux of the Prevention of Corruption Act, 1988 is ‘to shift focus from those who are traditionally called public officials, to those individuals who perform public duties’,[4] as opined by the Supreme Court in the case of the State of Gujarat v. Mansukbhai Kanjibhai Shah.
Conclusion
Today, the number of Covid-19 cases is falling to single digits and the day is not far where this pandemic becomes a part of history. However, with or without Covid-19, India’s other pandemic continues to exist. If India wishes to do away with its age-old pandemic - corruption, it needs to bring about a system of transparent governance.
If the Covid-19 pandemic has taught us anything, it is that the lack of transparency and the failure to effectively implement anti-corruption laws will only leave the system open to abuse, thus, taking away the lives of millions of people. Thus, showing us that there is no substitute for the effective implementation of laws and its significance is now more than ever.
Bhakti Chandan and Vidhi Mehta are second year students at Pravin Gandhi College of Law, Mumbai.
https://www.transparency.org/en/what-is-corruption#
https://transparencyindia.org/wp-content/uploads/2019/04/india-corruption-study-2002.pdf
https://cvc.gov.in/sites/default/files/CEO.pdf
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1168938/
[1] https://www.transparency.org/en/what-is-corruption#
[2] Section 2(c)(viii) of the Prevention of Corruption Act, 1988.
[3] Section 2(b) of the Prevention of Corruption Act, 1988.
[4] State of Gujarat v. Mansukbhai Kanjibhai Shah, 2018 SCC OnLine Guj 307.