By Pooja Meena, National law University, Jodhpur.
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 organisation.
The Union Cabinet on 30th April approved amendments to the Prevention of Corruption Act, 1988, that provide for classifying corruption as a heinous crime and longer prison terms for both bribe-giver and bribe- taker. The proposed amendment act will also ensure speedy trial, limited to two years, for corruption cases.
Objectives of the Bill-
- Widening of description of both demand and supply sides of corruption by providing criminalization of bribe giving by any person/organization to public servant; bribe taking by public servant by direct or indirect manner; and corporate liability in bribe giving.
- Protection of honest public servants.
- Laying down of criteria and procedure for sanction of prosecution.
- Confiscation of proceeds of corruption.
Statement of Objects and Reasons to the Bill-
It mentions that changes proposed to the aforesaid Acts/Ordinance have been necessitated
due to ratification of the United Nations Convention Against Corruption (UNCAC) in May, 2011 by our country; and Judicial pronouncements in corruption cases to fill in gaps in description and coverage of offence of bribery so as to bring it in line with the current international practice.
Salient Features of the Amendment[1]–
- Offering of Bribe is an Offence
No provision of the Prevention of Corruption Act, 1988 deals with the supply side of corruption directly. However, only Section 12 of that Act deals with supply side of corruption indirectly through the route of abetment which provides minimum punishment of six months extendable to five years of imprisonment with fine. But Section 24 of that Act provides that statement made by the bribe giver in any proceedings against public servant for the crime of corruption shall not subject that person to prosecution.
In order to plug such deficiencies in the law, Section 8 of that Act has been substituted by introducing a new definition of ‘bribe giving’ which is largely based on Section 1 of the UK Bribery Act, 2010 under Clause 3 of the Bill. Thus any person who now offers, promises or gives financial or other advantage to another person or public servant to induce or reward the public servant to perform improperly any public function or activity
would constitute as on act of corruption. Even the offering/giving or promising financial other advantage by the bribe giver itself constitutes ‘improper’ performance of relevant public function or activity’. It therefore implies that bribe giver can not give any pecuniary or non pecuniary advantage to public servant even in the case of proper function of public function or activity.
The minimum punishment proposed for that offence is three years which is extendable to seven years of imprisonment with fine. The punishment prescribed for bribe giver is equal to the punishment prescribed for the bribe taker in corruption cases.
- Widening of Description of Bribe Receiving by Public Servant and Enhanced Punishment therefore.
The new provisions under proposed Section 7 of PC Act make it an offence for any public servant to request, agree to receive or accept or attempt to obtain from any person any financial or other advantage:-
- intending that, in consequence, a relevant public function or activity should be performed improperly either by himself or by another public servant;
- where such request, agreement, acceptance or attempt itself constitutes the improper performance of a relevant public function or activity.
The proposed Section defines ‘public function/activity’ and ‘improper function of public function/activity’. Any function/activity in order to become public function must be of public nature and performed in course of person’s employment and is performed impartially and in good faith. The public function is construed to be performed improperly when it is performed in breach of ‘relevant expectation’ Again test of ‘relevant
expectation’ is what a reasonable person in our country expect in relation to performance of public function/activity. In addition, failure to perform public function/activity is itself a breach of relevant expectation. The enhanced punishment proposed for bribe taking is minimum of three years extendable to seven years of imprisonment and fine in addition to confiscation of proceeds of bribe from the disproportionate assets.
- Corporate Liability in Bribe Giving to Public Servant
Under Section 9 of the Act (Clause 3 of Bill) it will be an offence for the commercial organization if person associated with it bribes a public servant intending to obtain or retain business for such organization; or to obtain or retain an advantage in the conduct of business for it. But it shall be a defence for the commercial organization to prove that it had in place adequate procedure designed to prevent person associated with it from undertaking such conduct of bribe giving. The new Section10 under Clause 3 of the Bill provides for punishment to any Director, Manager, Secretary or any other officer of the commercial organization if it is proved that the offence is committed with consent or connivance of or is attributable to any neglect on the part of that person for punishment of three years extendable to seven years of imprisonment with fine. But if it is proved that the offence is committed without his/her knowledge or he/she has exercised all due diligence to prevent commissioning of such offence the commercial organization may be liable to fine proposed under new Section 9 coupled with proviso to proposed new Section 10 (1) of the Act under Clause 3 of the Bill.
- Enhanced Punishment for Habitual Commission of All Offences Including New Offences Relating to Bribe taking
The act of bribe giving is included in the offence in the PC Act which was earlier confined to Section 8, 9 and 12 of the Act in restricted way. Furthermore punishment was two years extendable to seven years of imprisonment with fine which has been proposed to three years extendable to ten years of imprisonment with fine through Clause 7 of the Bill.
- Protection to Honest Public Servant
The safeguard of prior sanction for prosecution provided under Section 19 of the Act to protect public servant against malicious and vexatious prosecution for any bonafide omission or commission in the discharge of official duty. The affording of such protection need to be based on careful appraisal of the facts and the process of decision making involved. It is proposed to amend the said Section for extending the same protection to public servant after they cease to hold public office through Clause 10 of the Bill. Section 10 provide that no request can be made, by a private person for the previous sanction of the appropriate Government or competent authority unless such person has filed a complaint in a competent court; and the court has directed the complainant to obtain the sanction for prosecution. In the case of a request from a private person, the appropriate Government or competent authority shall not accord sanction without providing an opportunity of being heard to the concerned public servant.
- Confiscation of Proceeds of Corruption
The Prevention of Corruption Act, 1988 does not specifically provide for the confiscation of the bribe and proceeds of bribery. It is now proposed through Clause 9 of the Bill to insert a new Chapter, i.e., Chapter IVA captioned ‘Punishment and Forfeiture of Property’ on the lines of the Criminal Law (Amendment) Ordinance, 1944.
Conclusion–
The original bill brought in 2013 to amend the 1988 Prevention of Corruption Act extended the liability of the commercial organisation to every person “in charge of and responsible” to the organisation for the conduct of its business through a deeming provision.[2]
Further, any officer of the organization was to be deemed guilty if the act of corruption was “attributable to his neglect” and the burden of proving otherwise lay with him, as per the 2013 Bill. The sentence for the offence meant a jail term of three-seven years, raising fears among corporates of misuse of the law and consequent harassment.[3]
As per today’s laws, both giving and taking bribes are crimes. This needs to be changed immediately. While the bribe-giver is invariably giving bribe for escaping harrassment, the bribe taker takes bribe by misusing his powers by not doing his duty in time or by inconveniencing the people he is supposed to serve. The British, who were biggest bribe-takers, made such laws to immediately punish the bribe giver on a complaint and did not take any or much action against their own officers whom the police could not touch without “permission” which was never given.
[1] The Prevention of Corruption (Amendment) Bill, 2013, SIXTY-NINTH REPORT, Parliament of India, Rajya sabha.
[2]http://economictimes.indiatimes.com/news/economy/policy/prevention-of-corruption-amendment-act-to-bring-relief-for-corporate-heads/articleshow/47241552.cms
[3] Ibid