Prevention of Corruption (Amendment) Bill, 2018

Context

Recently, parliament has adopted amendments to the Prevention of Corruption Bill, 2018

Prevention of Corruption Act, 1988

• It consolidated the provisions of the Prevention of Corruption Act, 1947, some sections of the Indian Penal Code, the Criminal Procedure Code, and the Criminal Law Act, 1952.
• The 1988 Act enlarged the scope of the term ‘public servant’ and in­cluded a large number of employees within its ambit.
• However, MPs and MLAs, even though performing ‘public duties’, have been kept out of the ambit of the Act.
• 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.
• A key problem of the 1988 Act was that the person giving the bribe was legally seen as a victim and so not held culpable or criminally liable.

UN Convention against Corruption

• The UNCAC, 2005 is a comprehensive convention that provides for domestic rules and treatment of transactions with foreign officials as well.
• It provides for treatmentof transactions of public sector, private sector, preventiveaction, attachment etc.
• Countries agree to cooperate with one another are required to give mutual legal assistance in gathering information for use in court.

Important provision of UNCAC that is missing inIndia’s corruption laws

• Preventive anti-corruptionpolicies and practices.
• The right of an aggrieved party to seek compensation/ damages for loss caused due to corruptpractices.

OECD guidelines

• OECD Guidelines for Multinationals, 2011 provides for guidelines for enterprises to combat bribery
• It alsolay stress on preventive measures. Although in India there isn’t a unified code ofconduct for companies (or commercial organizations)to comply with the best anti-corruption practices.

Prevention of Corruption Amendment bill, 2013

• After India ratified the UNCAC, the Government of India initiated measures to amend Prevention of Corruption Act to bring it in line with international standards
• The Prevention of Corruption (Amendment) Bill, 2013 was introduced in the Rajya Sabha but the Bill was not passed
• The Bill attempts to widen the definition of both demand and supply side offences of corruption

Main provisions include

• Prosecuting the act of offering a bribe
• Providing time-limits for completing trials
• Attachment of tainted property
• Prosecuting commercial organization as well for offering bribe
• Prior sanction to prosecute serving public officials. Bill extends this protection to former officials also

Criticism

• It doesn’t distinguish between coercive and collusive bribe giver
• It may be used to harass the commercial organizations
  • The proposed Section 10 (1) provides that if a commercial organisation is found guilty of an offence under Section 9, every ‘person in charge’ of the commercial organisation will also be liable to prosecution

4^th Report of 2^nd ARC

• There must be distinction between “coercive” and “collusive” corruption. Coercive bribe giver should be exempted if they report it thereafter

Coercive corruption: Citizens are forced to pay bribes. Example Ration card, Driving license, telephone connection

Collusive corruption: Bribe giver and bribe taker benefit at immense cost to society. Example 2G, Coal scam

Law commission Report

• It recommend change in the provision related to the commercial organization.
• It recommend to streamline this bill with other existing bill. As for example Attachment mechanism is already existing in Prevention of money laundering Act

1. Definition of Corrupt Public officials:

• It defines a corrupt public official as any public servant who tries to obtain or accept from any person an “undue advantage with the intention to perform or cause performance of public duty improperly or dishonestly.”

2. Giving bribe made punishable offence:

• It criminalize bribe giving as well as bribe taking.
• It distinguish between coercive and collusive corruption. Person who is compelled to give bribe have reports matter to law enforcement authority within 7 days

3. Prior approval for investigation:

• Mandatory prior approval of relevant Government or competent authority to conduct any investigation into offence alleged to have been committed by a public servant.
• However, such approval will be not necessary in cases that involve arrest of person on spot on charge of taking a bribe.

4. Redefines Criminal misconduct:

• Criminal misconduct covers only two type of offences

a) If public servant dishonestly uses the property under his control as a public servant or allows any other person to do so.

b) if a public servant cannot account for assets or property disproportionate to their known sources of income

5. Commercial entities as accused

• It allow for “commercial entities” – corporations or partnership firms or even any association of people that does business in India – to be listed as accused in a corruption case.
• The amendments allow for punishment against employees or directors of the company, and also say that the organization itself shall be punished with a fine.

6. Trial Time limit:

• The bill set trail time period within two if it is handled by special judge
• In case of delays, reasons for it must be recorded for every extension of six months obtained. However, total period for completion of trial may not exceed four years

7. Penalties for offences

• Bribe giving is punishable for 7 year term
• Attachment and forfeiture of property of public servants accused of corruption

Issues / Challenges with Corruption bill

• In previous law a prior sanction requirement was essential before prosecution of government servant. The addition of prior approval for investigation added extra layer of protection for officials
• The amendment Bill has not mentioned who the concerned authority is for providing sanctions for investigating a public official
• There is a concern over situation of bribe giver, if police or other law enforcement agency refuses to register complaint within 7 days
• The new Bill restricts this definition of “known sources of income” only to income received from any lawful source. This permits the accused public servant to claim lawful income from a variety of sources
• Many existing laws has overlapping provisions. As The Prevention of Money Laundering Act, 2002, also has provisions for attachment of property. However, under the PMLA, prior approval of the government before filing application for the attachment of property is not needed

Way Ahead

• There should be a comprehensive package to fight against corruption. The government must strengthen existing laws like whistleblower protection act, lokpal act etc.
• The government should also address the regulatory concerns in Competition act, companies act, income tax etc.
• Government must ensure citizen participation and transparency in decision making to eradicate corruption
• There should be an equal focus on judicial reform and police reform to create a deterrence
• Government should not follow the prevention practices in UK or USA blindly but customize the prevention law according to Indian conditions as suggested by Law commission.
• India should engage itself more actively with other nation to gather information and evidence against the corrupt officials