“Power doesn’t corrupt people, people corrupt power”
Corruption is a dishonest behaviour of government officials while holding their position. Corruption comprises of giving or accepting bribes or inappropriate gifts, double dealing, under table payments, tampering elections, diverting funds, money laundering and cheating the investors. To curb this evil, our legislature enacted a law i.e. The Prevention of Corruption Act. The Act was enacted to prevent corruption in Government departments and to prosecute and punish public servants involved in corrupt practices. Recently, in the year of 2018 the Indian Parliament made amendments in the Act by passing the Prevention of Corruption (Amendment) Act, 2018. The Amendment of 2018 brings critical changes in the Act including direct liability for commercial organizations involved in bribery in India.
Salient Features of Prevention of Corruption Act:
Who are covered under the ambit of the Act?
The Act has wide scope of application to curb the menace of corruption. By the Amendment of 2018 the Act extends its scope from public servant to commercial organizations. The persons or entities covered under the Act are enumerated below:-
Public Servants: The following persons are called public servants for the purpose of the Act:-
- Any person who is in the service of govt. for performance of any public duty and paid by govt. for such duty.
- Any person in the service of local authority and paid by such authority.
- Any person in the service of corporation established by Central or State Govt. and paid by corporation.
- Any judge.
- Any liquidator, commissioner or received appointed by the court.
- Any arbitrator.
- Election commissioner.
- Any person who holds an office to perform public duty.
- President, secretary or other office bearer of registered co-operative society engaged in agriculture, industry, trade or banking.
- Chairman, member or employee of any Service Commission or Board.
- Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee of any University.
- Office-bearer or an employee of an educational, scientific, social, cultural or other institution.
Commercial Organizations: Commercial organizations under the Act include company or partnership incorporated in India and carrying on business in India or outside Indian even corporate body or partnership formed outside Indian but carrying on business in India. The Act provides that if a commercial organization commits any of the offences under the Act with an intention to obtain or retain business and advantage in the conduct of its business, then such commercial organization shall be punished with fine. Howbeit, the quantum of fine is not given in the Act.
What is undue advantage?
Undue advantage means any gratification other than the legal remuneration that a public servant is permitted to receive. Gratification is not restricted to monetary gratification even non-monetary considerations such as better posting, post-retirement benefits, gifts and favors not estimable in money can also be a undue advantage.
What is the punishment if public servant took bribe?
Section 7 of the Act provides offences related to public servant being bribed. As per this Section where public servant accepts or attempts to obtain an undue advantage from any person in exchange to perform public duty improperly or dishonestly either by himself or any other public servant or if any public servant accepts reward for improper or dishonest performance of public duty from any person. This can attract the offence under Section 7 of the Act and such public servant can be punished for imprisonment of 3 years and may extend upto 7 years also with fine. Inducing other public servant to perform dishonest duty is also an offence under this Section.
Is another person who took bribe for public servant can be punished?
Yes, mediator between the public servant and bribery giver can be also punished under the Act, as per newly added Section 7A, who accepts or attempts to obtain any undue advantage as a motive or reward from another person for himself or any other person to induce public servant by corrupt or illegal means or by exercising its political influence to perform improper or dishonest public duty. This offence can be punished with imprisonment of 3 years and can be extended upto 7 years with fine also.
Is briber giver liable for punishment?
Yes, according to Section 8 of the Act, any person who gives or promises to give an undue advantage to another person to induce a public servant to perform improper public duty or to reward such public servant for improper public duty can be punished with imprisonment which may extend to 7 years or with fine or both. Howbeit, this Section shall not apply where a person is compelled to give undue advantage. A person who is compelled to do so can report the matter to law enforcement authority or investigating agency within 7 days from the date of giving such undue advantage.
Criminal misconduct is defined under Section 13 of the Act which means misappropriation of entrusted property. A public servant is said to commit the offence of criminal misconduct when he/she while holding office as public servant obtains from any person any valuable thing or pecuniary advantage without any public interest. The commission of this offence can attract punishment for 1 year and extend up to 7 years along with fine also.
Under Section 19 of the Act prior approval of govt. is required to prosecute public servants on corruption charges. As per Amendment of 2018, this section would apply all serving or retired public officials to make sure that frivolous and vexatious case are not filed. The appropriate govt. must convey its decision on sanction within the period of 3 months. This protection of sanction is also extends to the requirement of prior approval to investigation prior to prosecution. The sanction is required so that public officials may not be harassed and efficacy of administrative machinery is not tampered.
Time limit to dispose of the cases:
The time limit of disposing of cases under the Act is 2 years. Howbeit, the court can extend this period 6 months at a time upto a maximum of 4 years.
To eradicate the evil like corruption there should be comprehensive package to fight against corruption. Government must guarantee citizen participation and transparency in decision making. There should be equal focus on judicial and police reform to create deterrence. The Amendment in the Act can be seen as a positive development in respect of anti-corruption regime. It has also modified and enhanced the definitions and penalties for offences relating to accepting bribery to set free the nation from the clutches of corruption.
Associate at Aggarwals & Associates S.A.S. Nagar, Mohali