The need to amend the Prevention of Corruption Act, 1988

Definition

• There is a dire need to look at corruption through the lens of law, economics and psychology.
• The design of corruption control mechanisms is important.

Introduction

• The Prevention of Corruption Act came into force in September 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.

Parameters

• The Prevention of Corruption Act extends to the whole of India except the State of Jammu and Kashmir and it applies also to all citizens of India outside India.

Who decides the case under the law?

• Crimes under this law have to be decided by a special judge.
• The State or Central Governments will appoint these judges.
• When crimes under this Act go to court, the crimes will be decided by the special judge who is responsible for the area where it was committed or the special judge appointed for that specific case.
• Every criminal trial has to follow certain procedural rules which are provided in the Code of Criminal Procedure, 1973.

Punishment rewarded

• 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.

Criticism of the Bill

• 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.
• Further issues arising from the Act include:
• prosecution delays
• needlessly long process for recovering the assets of a convicted bribe taker,
• weak whistle-blower protection
• central or state government must sanction prosecution against officers, and
• chief vigilance officers have limited jurisdiction

The Prevention of Bribery of Foreign Public Officials and Officials of Public International Organizations Bill (Bill) 2011

• The Prevention of Bribery of Foreign Public Officials and Officials of Public International Organizations Bill, 2011 was introduced in the Lok Sabha on March 25, 2011 by the Minister of State for Personnel, Public Grievance and Pensions, Mr. V. Narayanasamy.
• India had signed the United Nations Convention against Corruption on December 9, 2005.
• The Bill is necessary for the ratification of the Convention.
• It provides a mechanism to deal with bribery among foreign public officials (FPO) and officials of public international organizations (OPIO).
• The Bill empowers the Central Government to enter into agreements with other countries (contracting states) for enforcing this law and for exchange of investigative information.

The Prevention of Corruption (Amendment) Bill (2013)

• The Prevention of Corruption (Amendment) Bill, 2013 amends the Prevention of Corruption Act, 1988.
• The Act covers the offence of giving a bribe to a public servant under abetment.
• The Bill makes specific provisions related to giving a bribe to a public servant, and giving a bribe by a commercial organization.
• The Bill redefines criminal misconduct to only cover misappropriation of property and possession of disproportionate assets.
• The Bill modifies the definitions and penalties for offences related to taking a bribe, being a habitual offender and abetting an offence.
• Powers and procedures for the attachment and forfeiture of property of public servants accused of corruption have been introduced in the Bill.
• The Act requires prior sanction to prosecute serving public officials. The Bill extends this protection to former officials.
• The Bill has replaced the definition of criminal misconduct. It now requires that the intention to acquire assets disproportionate to income also be proved, in addition to possession of such assets.
• By redefining the offence of criminal misconduct, the Bill does not cover circumstances where the public official: (i) uses illegal means, (ii) abuses his position, or (iii) disregards public interest and obtains a valuable thing or reward for himself or another person.
• Under the Act, the guilt of the person is presumed for the offences of taking a bribe, being a habitual offender or abetting an offence. The Bill amends this provision to only cover the offence of taking a bribe.

Corruption perception index 2016

• India has been ranked 79th among 176 countries in the Corruption Perception Index 2016 released by the Transparency International organisation.
• Its score marginally improved from 38 in 2015 to 40 in 2016.
• Poor performance can be attributed to unaccountable governments, lack of oversight, insecurity and shrinking space for civil society, pushing anti-corruption action to the margins.

Other important Bills

• The Whistleblowers’ Protection Act 2011 is primarily intended to protect whistleblowers with respect to disclosure of acts of corruption, wilful misuse of power, wilful misuse of discretion or the commission of attempted commission of a criminal offence by a public servant.
• The Lokpal and Lokayuktas Act 2013 establishes the offices of the nodal ombudsman for the central and state governments (Lokpal and Lokayuktas, respectively) and accords relevant powers to these bodies to unearth, investigate and adjudicate corruption in India.
• The Foreign Contribution (Regulation) Act 2010 regulates the acceptance and use of foreign contributions and hospitality by corporate entities and individuals. Braxton Miller – Ohio State Buckeyes Receipt of foreign contributions requires prior registration with or approval of the Ministry of Home Affairs. In the absence of such registration or approval, receipt of foreign contributions may be considered illegal and punishable.
• The Prevention of Money Laundering Act 2002 aims to prevent instances of money laundering and restrict use of the proceeds of crime in India.