With steps being taken to put a check on black money it is high time that the next big thing be done i.e. to relieve the common man from the clutches of corruption is here.
"When the rich stop giving,
The corrupt will stop asking,
And when everybody will have to stand in the same line,
INDEED MY COUNTRY SHALL BE FREE FROM CORRUPTION."
Prajval Albuquerque.
Hence with this object in mind through this post I have made a sincere effort to analyse the Amendment Bill to Prevention of Corruption Act 1988 and the way forward.
Proposed
Amendment To Prevention of Corruption Act, 1988.
Introduction:
The entire Act of 1988 is not repealed entirely but the following sections of the Act are proposed to be amended which are as follows S.7, S.8, S.9 and 10, S.11, S.12 to S.15, S.17A (I),[S.18A(I) to18N],19 and 20, S.24 have been omitted. The bill focuses on amending the Act with regards to the definition, meaning and application of 1988. The Bill makes giving of a bribe an offence against only taking of bribe as in Current Act. The Amendment also focuses on; Intermediaries and third party involvement, giving of a bribe by a commercial organization, abetment, criminal misconduct and habitual offender, attachment of property acquired as a bribe, protection to retired public servants from prosecution, Presumption of wrongdoing.
The entire Act of 1988 is not repealed entirely but the following sections of the Act are proposed to be amended which are as follows S.7, S.8, S.9 and 10, S.11, S.12 to S.15, S.17A (I),[S.18A(I) to18N],19 and 20, S.24 have been omitted. The bill focuses on amending the Act with regards to the definition, meaning and application of 1988. The Bill makes giving of a bribe an offence against only taking of bribe as in Current Act. The Amendment also focuses on; Intermediaries and third party involvement, giving of a bribe by a commercial organization, abetment, criminal misconduct and habitual offender, attachment of property acquired as a bribe, protection to retired public servants from prosecution, Presumption of wrongdoing.
History:
The Prevention
of Corruption (Amendment) Bill, 2013 was
introduced in the Rajya Sabha in August 2013 to amend the PC Act. The Amendment
Bill was referred to the Standing Committee of Personnel, Public Grievances,
Law and Justice, which submitted its report in February, 2014. In pursuance to
the report there had been certain modifications to the Amendment Bill. The
revised draft was approved at a cabinet meeting and was subsequently sent to
the Law Commission of India for its views. The Law Commission has in
February, 2015[1]
Analysis of Sections in the
Act and the Amendments passed by the cabinet :
·
S.7(As to be Amended by the Bill compared with Existing Section 7 and UK Bribery Act):
The
ingredients of these Sections are compared along with the sections of the Act
in existence, proposed Amendment and UK Bribery Act[2]
S.
7, PC Act, 1988
|
S.
7(1), 2013 Amendment
|
S.
2(1) UK Bribery Act
|
Any
public servant who
accepts
obtains
agrees to accept
attempts to obtain
“any
gratification whatever, other than legal remuneration….”
in
the context of “official acts” or “official functions”
|
Any
public servant who
requests
any person for
obtains
agrees to receive
accepts
attempts to obtain
“any
undue financial or other advantage” ….
in
the context of “improper performance” of “a relevant public function
or activity”
|
Any
person who
requests,
agrees to receive or
accepts
“a
financial or other advantage”…..
in
the context of “improper performance” of a “relevant function or activity”
|
The Amendment by proposing to add the word requests in S.7 (1) acts as a very potent
tool to snip corruption in the bud as now there shall be no need of actual
physical delivery of the bribe, thus any such person who had demanded a bribe but due to intimation
or pre-knowledge of a trap by Anti-
Corruption Authorities refuses such a bribe and files a suit of Defamation, or
maligning the image of a public official
against the person from whom such
bribe was demanded and who took up the effort to set up the trap. By inserting the word request a safety cover for the activist is inserted, however it is up to him how he would prove this request was made. Though the previous Act provided a protection
against counter filing of suit by using the words attempts to obtain. Yet these words came into picture when a suit
had begun against the person who had initially made a complaint against the
public servant was before the court and the court decided whether the act of
public servant was an attempt to obtain any gratification based on the motive
of the act. The word request thus
leaves no scope for identifying ‘was there an attempt or not’. Secondly by the
use of the word request. It becomes
easier for the complainant to identify what is an attempt to obtain
gratification and thus he can be judicious while lodging a complaint. The words
however attempt to receive gratification are not deleted. It is beneficial as the
court where no request was made can still at is discretion based on facts
determine whether there was an attempt to receive gratification. Hence there is
clarity regarding when to complain and ample space for judiciary to decide on
how to Act when no request was made yet there was an intention to receive
gratification. Thus this Section is a perfect combination of rigidity and
flexibility. When compared with UK bribery Act Amendment this section
specifically uses the words, “requests any
person”. But the word person is not defined in the Act so to increase the ambit of the Act S.9 was amended which incorporated the term
commercial organization and in the same section,the word "business" is defined under (3)(a) of the above mentioned section which incorporates every other entity other than a person who may give
bribe. The issue can be solved by the judicial
interpretation of the words attempts to
obtain. In spite of this to add more clarity to this Section a need is felt
either to delete the word person as
in UK Bribery Act or to define the word person
in this amended Act, though the general clauses act takes care of it. S.7 is
an excellently drafted section that caters to the various facets of
receiving gratification which are described in detail so as to avid any loop
hole in the law. The S.7
(2) (a) to (d) describes as what may be construed as public activity and (e)
leaves the discretion to court so as to consider of any other act as may be understood by a
reasonable man. However a need is felt either to make the public servant
responsible for his private acts which have an impact on the ultimate
fulfilling of legal obligation. Basically the intention of framing this
legislation was to stop the people from paying bribes hence focus should be not
on the activity but on the consequence or the effect sought and the same which is to be achieved. Thus the provisions in this
section should be made applicable regardless of the form of activity either public or
private if the legal objective sought by the complainant is left unfulfilled
due to non-performance or wrongful performance of the public servant due to
non-payment of any gratification to which he is not entitled to or to achieve
any such legal or illegal objective any public servant demands any
gratification which he is not entitled to
then he shall be liable for prosecution.
The punishment has also been enhanced in this
amendment from minimum punishment of 6 months to 3 years in this section and maximum from 5 years to 7
years.
S.8 ( As to be Amended by the Bill compared with Existing Section 8):
In S.8 of the 1988 Act it stated the liability and
the punishment to be imposed on any such person who received any such
gratification for himself on behalf of any public servant to which he was not entitled to.....(It further states the penalty for the same). S.8 has been modified in the
Amendment as with regards to changing
context and it has been observed from the acts of the Corporates in the 2G Scam case that
corruption is not only limited to situations where bribe would be demanded by
the public servant to fulfill his legal obligation but where persons would give
gratifications to direct a public servant to perform his public function in an
unlawful or erroneous manner. Thus the amendment to S. 8 focuses on making the
person offering or giving the bribe too liable for his act and a punishment of
minimum 3 years and a maximum punishment of 7 years will be awarded. At present however the bribe
giver or offerer walks out scot free as per the provisions of the Section 24 of
this Act. The intention of the framers of the 1988 Act was to prevent corruption in its totality and to
punish any person who committed an act of offering bribe. Hence they drafted
S.12 but however word used was abetment which means, “To contribute as an
assistant or instigator to the commission of an offence”[3].
Based on this meaning the bribe offeror is in no way contributing to the act of
public servant rather he is just making a proposal
“When
one person signifies to another his willingness to do or to abstain from doing
anything, with a view to obtaining the assent of that other to such act or
abstinence, he is said to make a proposal”[4].
Thus if such person offered a bribe but did not give
any such bribe would be exempted under
S24 and even if he actually paid such a
bribe he would not come under
S.12, as he would not fit in the definition of S.12. Hence the Amendment
to S. 8 of this Act was the need of the hour.
·
S.9 (As to be Amended by the Bill compared with Existing Section 9):
Section
9 talks about the liability of the various commercial organization towards the
acts of the employees committed for the benefit of the commercial organization.
This concept is based on the tortuous concept of Vicarious liability of Master
towards the acts of its servants. There are provisions in various Acts
regarding the laws regulating them individually but to bring them under the
ambit of one single Act so as to increase their liability towards public they
have been combined and classified as commercial organizations which is defined
in S.9 (3)(a) of the Amendment.
Note: The punishment has also been enhanced in this
amendment from minimum punishment of 6 months to 3years in this section and maximum from 5years to 7
years
·
S.10 (As to be Amended by the Bill compared with Existing Section 10):
S.10
is the punitive or the application section for the acts committed by the employees
of the commercial organizations as in S.9 of the Amendment. S.9 and S.10. Where
in (1) it makes the persons in charge
and responsible for running these commercial organizations responsible for the
acts of its employees as in S.9 and awards punishment for a period of minimum 3 years and maximum 7
years and fine . It however nullifies the liability of such persons mentioned
above if they prove that the offence was committed without their knowledge or
that they had exercised all due diligence to prevent the commission of such
offence
This
is further clarified in the (2) of this Section where it states the persons
responsible for the acts of their employees and as and when such liability
comes into effect. It is worded as follows:
“where
an offence under section 9 has been committed by a commercial organization and
it is proved that the offence has been committed with the consent or connivance
of, or is attributable to, any neglect on the part of any director, manager, secretary
or other officer of the commercial organization,such director, manager,
secretary or other officer shall also be deemed to be guilty of the offence and
shall be liable to be proceeded against and punished accordingly under
this section.”
Here it must be clarified that the original 1988 Act S.10 does not contain Sub section 2 and will be incorporated in this Act if this bill is passed.
Here it must be clarified that the original 1988 Act S.10 does not contain Sub section 2 and will be incorporated in this Act if this bill is passed.
S.9
and S.10 when read together eliminates the ambiguity which has been created in
S.7 by not defining the term person though this ambiguity is cleared by looking at the definition of person in General Clauses Act, but however abiding by the Rules of interpretation it is always a safer bet to deal with such an essential term in the Act itself.
·
S.11( As to be Amended by the Bill compared with Existing Section 11):
The
Amendment bill omits the S.11 of the previous Act. The Section is in context of
a Public servant obtaining valuable
thing, without consideration from person concerned in proceeding or business
transacted by such public servant. Going by the contents in the current Section
it contains three main ingredients
Obtains or agrees to obtain any gratification for
himself or any other person:
1. Without
consideration.
2. Or
for a consideration which is inadequate.
3. Punishment
for receiving such gratification.
Though a classification is made in this section with
regards to public servants who demand a bribe yet the punishment is the same. This
specific section does not serve any purpose. Secondly in case of corruption
there is no need to make any reasonable classification as permitted in Article
14 as any such classification must be made with regards to objectives of the
Act and no objective of this Act is fulfilled by making such classification. Hence
the Amendment omits it.
·
S.12 (As to be Amended by the Bill compared with Existing Section 12):
The
current section in the Act punishes offence for abetting any of the acts
committed in S.7 and S.11. But since the Amendment changes the wordings of S.7
and omits S.11. So a need is felt to amend the S.12 as well. Secondly the
wordings of the Amendment to this section are so worded so as to generalize the
offence of abetting any acts committed in violation of this Act. It also
contains the punishment there to.
·
S.13 (As to be Amended by the Bill compared with Existing Section 13):
Only
clause(a) and (b ) of the current Act have been substituted .
These
sub clauses in the current Act relate
only to habitual offenders but to make the law more stringent there should be
no classification made with habitual and non- habitual offenders as this differentia
is not necessary to serve the objectives of this Act so these have been substituted in the Amendments which rather focus on the
words fraudulently and intention of the public servant.
·
S.14 (As to be Amended by the Bill compared with Existing Section 14):
The
current section punishes specific habitual offences as in S.8, 9 and 12.
The
Amendment generalizes punishment for all the offences which are committed
habitually rather than making it specific to certain offences besides this it
also helps to concise the legislation.
The
minimum and the maximum punishment under the current Act have been enhanced in
the current amendment from 2 to 3 years and from 7 to 10 years.
·
S.15 (As to be Amended by the Bill compared with Existing Section 15):
The current S.15 of the Act deals with
punishment for attempting to commit professional misconduct as in S.13. The
current amendment has amended S.13. Hence S.15 too has been amended in
accordance with it. However the punishment has not been enhanced in the
Amendment to S.15.
·
S.17 (As to be introduced by the Bill):
S.
17 of the Act designates certain authorities to investigate charges of corruption
bu t no authority can be appointed under this Act or investigation by any authority appointed be conducted violating any provision of CrPC.
S.17
A is added in the Amendment so as to
keep a check on the powers of the authorities who are designated to Act on a
complaint of any person but to avoid any
arbitrary act or misuse of power by such
designated authorities. The legislators through this provision have given
powers in the hands of Lokpal in case of central government employees and
Lokayuktas in case of state government employees and without their approval an investigation cannot be initiated but at the same time it can be said that the powers of the Lokpal and the
Lokayuktas are being diluted because as per S.11 and 12 of the THE LOKPAL AND THE LOKAYUKTAS ACT 2013 has
empowered the Lokpal and the Lokayuktas to constitute a inquiry wing of which he
himself must be a member of and prosecution wing but at the beginning of S.11
the words,“Notwithstanding anything
contained in any law for the time being in force” hence once this
legislation is passed the Lokpal will not be able to conduct or initiate inquiry
on his own. But at the same time this section of the amendment plays a crucial
role in the decentralization of Authority as the power to sanction an inquiry
will be with him and the designated police officer. Hence there can be no scope
for collusion between the accused public servant and the person investigating
the matter. Despite all this some questions
still remains unanswered i, Why are special bodies like Lokpal and the
various tribunals created ? They are created with a view to hasten the legal
proceedings but if despite creating these bodies if we are depending on police for
investigation then why are we exerting pressure on our
consolidated funds by creating such
bodies? Lastly doesn’t the Government trust the credibility of the Lokpal? If
the Government does not trust the Lokpal then THE LOKPAL AND THE LOKAYUKTAS ACT
2013 Act must be severed or in the current Act Lokpal and the Lokayuktas should
be given authority to conduct to investigate and prosecute the public servants
as per S.11, 12 , CHAPTER IV and CHAPTER V of
THE LOKPAL AND THE LOKAYUKTAS ACT 2013.
The
proviso to this Amendment allows for investigation of any public servant without
the consent of Lokpal or Lokayukta where
the public servant has been arrested on the spot while receiving any
gratification. The law commission of India in its report 254 has summarised this section as follows:
The proposed section 17A(1), introduced in 2014, thus
extends such a limited requirement of “previous approval” to public servants
who are or were in service at the time of the alleged offence. This is in line
with the provisions of section 197 Cr.P.C. and the scheme of section 14 of the
Lokpal Act.
The proviso to the proposed section 17A (1) is similar
to Clause (2) of the repealed section 6A of the Delhi Special Police
Establishment Act, 1946 (hereinafter “DSPE Act”) which provided that in
certain factual scenarios/gross cases, no sanction/previous approval would be
necessary. However, the proviso to the proposed section 17A (1) is narrower than
Section 6A(2) of the DSPE Act – now requiring that even if a person is caught
on the spot while accepting illegal gratification (“undue financial or other
advantage”), it would have to be shown by the prosecution that it was intended that
such acceptance consequential to a relevant public function or activity being
performed improperly.
CHAPTER IV A (As to be introduced by the Bill):
·
CHAPTER IV A has been proposed to
be added in this Act through this Amendment so as to make a provision for
attachment of property of any public servant who commits corruption or is
accused of the same. The entire chapter constitutes of Sections 18A to 18N which describes in
detail when such property can be
attached along with the procedure. The Indian law commission in its 254 report
has summarized this section, reported the drawbacks and has made
recommendations which are as follows:
Provisions regarding attachment and forfeiture
have been introduced vide sections 18A-N of the 2013 Bill. However, they
are bound to create confusion given that separate procedures for attachment and
forfeiture in cases of corruption of public servants are covered under the
following three laws:
a. The Criminal Law (Amendment) Ordinance 1944;
b. Prevention of Money Laundering Act, 2002 (“hereinafter PMLA”);
c. The Lokpal and Lokayukta Act, 2013.
Hence, it might
be better suited to replace the proposed sections 18A-18N with a single
provision referring to the forfeiture and attachment procedures in the PMLA Act
or the Criminal Law Ordinance of 1944. This will ensure our compliance with the
UNCAC.
There
may be some difficulties in the adoption of the PMLA procedure in
cases which are investigated and prosecuted by State Government agencies, Ex. State Police, State Anti-Corruption Bureaus etc. It may not be desirable to
load the Enforcement Directorate, the Adjudicating Authority and the Appellate
Tribunal with thousands of cases under the PC Act all over the country as an
exclusive forum for handling matters relating to attachment and forfeiture of
property.
Further, the
reach of the 1944 Ordinance is slightly different than that of the PMLA
in as much as the Ordinance enables the filing of application for attachment by
the appropriate government merely on the belief that any person has committed a
scheduled offence and the said person has procured money or other
property by means ofthe offence, whether or not any court has taken
cognizance of the offence.
PMLA on the contrary enables
provisional attachment where the Director or authorised Deputy Director
believes that any person is in possession of any proceeds of crime (not
necessarily the person who committed the crime) and such proceeds are likely to
be concealed, transferred, etc. which may result in frustrating any proceedings
for confiscation of such proceeds. PMLA requires that an order for provisional
attachment cannot be passed by the Director or authorised Deputy Director
unless, in relation to the scheduled offence, a report has been forwarded to a
Magistrate under Section 173 of the CrPC or a complaint has been filed by a
person authorised to investigate the offence before a Magistrate or court for
taking cognizance of the scheduled offence.
Having regard to these factors, a better option would be to
provide for recourse for both the PMLA and the Criminal Law Amendment Ordinance
of 1944, whichever may be found most convenient, depending upon the nature of
the case. It may, therefore, be desirable to delete the proposed new Chapter
IVA and in its place, incorporate a new Section 18A along the lines of the
provision made in the earlier Prevention of Bribery of Foreign Public Officials
and Official of Public International Organisations Bill, 2011, which was
introduced in the Lok Sabha in 2011 but lapsed with the dissolution of the 15th Lok Sabha.
Recommendation: The proposed Chapter IVA should be deleted
and be re-cast as follows:
“18A. Save as otherwise provided under the
Prevention of Money Laundering Act, 2002, the provisions of the Criminal Law
Amendment Ordinance, 1944 shall, as far as may be, apply to the attachment,
administration of attached property and execution of order of attachment or
confiscation of money or property procured by means of an offence under this
Act.”
Consequential
amendments will also need to be made to the PMLA, 2002 so as to include all the
offences under the PC Act, as now redefined, as predicate offences under the
Act by appropriate substitution of Paragraph 8 of Part A of the Schedule to the
PMLA.
·
S 19:
S.19
answers the question as and when sanctions are needed to prosecute a public
servant. Changes
have been made in this section to correspond with changes in other section
along with which it is supposed to be read i.e. with S.7, S.13 and S.15 of the
Amendment. As per the words in the current section (1) (a) and (b) it states
that in case of allegation of corruption
occurring during the course of public
servants either of state cannot be removed on allegation of corruption without
he sanction of the respective government but these clauses were unfavorable for the public servants as no sanction was required (As maybe construed from
(a) and (b)to remove them when the allegation
was pertaining to a previous employment and that where the nature of
their employment had been changed. To safeguard the interest of public servants
and that they may merely not be removed from his office based on past
allegations the necessary provisions have been made in the amendment by adding
the words “or as the case may be, was at the time of commission of the alleged
offence employed" in (a) and (b).(1)(c)States
that only a competent Authority can pass any such sanctions. But a proviso to
this has been added in the Amendment. Which states that only following
authorities have permission to request such sanctions:
Police officer,
officer of an investigation agency or any other law enforcement authority. Such request
must be made to the appropriate Government or competent authority and the
conditions in compliance with the sub clauses in the proviso.
However before
abiding by any such request a provision
has been made so as to give any such public servant an opportunity to be heard.
The proviso also consists of duration and hierarchy of authority for passing
any such sanction.
The Subsection
(2) which makes provisions with regards to previous sanctions, subsection (3)
which deals with the provisions in CrPc which are applicable to this section of
the Act and the courts power regarding prosecution without sanctions and (4)
talks about erroneous exercising power as in (3). The Amendment has not made
any changes in them and they shall continue
to be a part of this legislation.
·
S.20:
S.20 of this
Act is about presumption of gratification received the section in the current
Act has made differential provisions with regards to such gratification as in
section 7 and 11. The current section while making such presumptions relies on
S.12 and S.14 of the current Act . But with the Amendment omitting S.11 it
become applicable only to S.7 . Besides with the amending of S.12 and 14 they
can no longer be read along with section 20 so as to presume receiving of
gratification.
The amended
S.20 in the amendment is concise and states
that unless the contrary is proved it shall be presumed that the public servant
has
violated S.7
·
S.24 (The Bill intends to omit this Section which currently exists in PC Act):
Section 24 has been omitted by the amendment as it is
solely required in a scenario where there are no provisions regarding bribe
giver but with the amended S.8, 9 and 10
it is no longer required as it serves no
purpose. Besides the provision in this section provide a loop hole for the
bribe giver to escape conviction. The section relies on other sections but when such other have been amended in the
Act then this section will not comply
with those sections so this Section has been deleted in the Amenddment.
§
Besides this the Amendment to PC Act has made
provisions to amend theCriminal Law
Amendment Ordinance, 1944, in the Schedule and the DelhiSpecial Police
Establishment Act, 1946
.
Summary
|
The
whole amendment can be summarized as follows :
The
cabinet by passing this bill has acknowledged the fact that it is no longer true that the bribe giver is always the victim but with changing times
and rapid growth of corporate sector the bribe giver is no longer specifically
a victim.
The
times when bribery only existed due to the ignorance of the common man, are soon coming to an bribe was given to
achieve a legal objective that includes basic necessities as the public
servants would not do their rightful duty. The PC Act of 1988 was almost
sufficient to keep a check and control over such officials but in modern
scenario bribes are no longer given as a necessity but to gain undue privileges
in this scenario where a public servant does not ask the bribe per se but is offered
the same then holding such public servant alone guilty would not be right as
per the principle of equality before law as in A.14. The bribe giver or the one
who offers bribe is also equally guilty
and he must too be punished . The Amendment in S. 8,9 and 10 of PC Act
are amended and S.24 of the Act is omitted with the sole purpose of making the
person and commercial organizations liable for their acts of either giving or
offering bribes. The Amendment if
passed will remove the drawbacks in the earlier Act one of them being the
classification with regards to habitual offenders which will no longer be there
once this Amendment is passed. The Act at present relies on imprisonment and
fines as a mode of punishment but with the insertion of Chapter IV (A). The
court will be able to attach properties of persons in relation of any offences
under PC Act once this Amendment is passed. At the Same time provision is also
made in the Amendment for protecting the public servants from prosecution when
any false allegations are made by amending S.19. Under which provisions are
made with regards to procedure which must be followed before any sanction is
obtained for prosecution of public.
Like
any other legislation this Amendment has some drawbacks but as compared to the
current PC Act. This Amendment is the need of the hour and must be passed by the
Parliament.
