Welcome changes to anti-corruption law

Bulbul Sen | Updated on August 15, 2018

A risky proposition Offering of bribe for getting an undue advantage is now a criminal offence

Criminalising bribe-giving and time-bound trial are among measures introduced in the amended law

In a country like India where corruption is rampant, the efforts of the government to amend the anti-corruption legislative framework through amendments to the Prevention of Corruption Act 1988, passed in July this year, are welcome.

Under the legislative framework of the Prevention of Corruption Act, there was no provision to criminalise directly the supply side of corruption, or the offering of bribe for getting an undue advantage. Under the new dispensation, this is criminalised. The demand side of corruption, which is the solicitation and acceptance of a bribe, is also criminalised, as in the earlier Act.

Thus, by criminalising both sides of corruption, the cycle is now complete, as the supply and demand sides of corruption are two sides of the same coin, with corrupt acts occurring due to collusion between the two, the suppliers and the demandes. Introduction of this provision is in fulfilment of India’s commitment under the UN Convention Against Corruption (UNCAC) ratified by us in 2011.

Earlier, it was difficult to penalise commercial organisations involved in corruption, as their directors, especially in the case of MNCs, were often stationed abroad, beyond the effective reach of Indian law-enforcing agencies. Moreover, the supply side of corruption had not been criminalised. Now, the commercial organisation itself shall be punished with fine, if any person associated with such an organisation commits an act which may fall under the purview of the supply side of corruption.

If such offence is committed with the connivance of any director or any other officer of the organisation, he would also be guilty of the offence in his personal capacity and is punishable with imprisonment of three to seven years along with fine. Thus the provision to fine the body corporate in India is a powerful alternative tool, and once more displays the influence of the UNCAC in its enactment.

Earlier, even if the public servant gained no personal pecuniary or other advantage, he would be guilty of an offence if his action gave an advantage to any other person, and did not benefit the public. Most high-profile corruption cases handled by the CBI used to be booked under this provision.

This provision has been dropped now, as this was felt to be highly anomalous and led to policy paralysis of sorts in governance in India. Now, the public servants will not hesitate to take right decisions in managing public affairs.

Prosecuting public servants

The new framework has, however, diluted the power of investigating agencies to prosecute public servants to a certain extent, as they will not get the advantage of the aforesaid provision of law.

There is thus a trade-off, which has been deliberately introduced in favour of public servants in the context of overall good governance.

Now, without approval of a competent authority, no police officer can conduct any inquiry or investigation against a serving or retired public servant where the decision taken by such public servant was in discharge of his official functions or duties. This was not available earlier and public servants used to face unnecessary harassment from investigating agencies.

Rightly, this provision has not been made applicable for cases involving arrest of the public servant on the spot for committing an act on the demand side of corruption. In effect, more protection to public servants against unnecessary harassment from investigating agencies has now been introduced.

One of the steps in prosecuting a corrupt public servant is to obtain sanction for prosecution from a competent authority. This has now been extended to retired public servants.

Thus public servants would not be afraid to take decisions for fear of prosecution after their retirement.

Harassment by public

Second, harassment of officials by the public, through filing of unnecessary complaints and asking for prosecution sanction, were common during the earlier regime. Now, on a complaint from the public, no prosecution sanction will be accorded without providing an opportunity of being heard to the public servants concerned.

Third, the decision of the appropriate government for according sanction must now be taken within three months from the date of receipt of requests.

These measures have given major relief to government servants, whether serving or retired, who have felt absolutely helpless if they are wrongly implicated by investigating agencies.

The attachment of property and its confiscation are important tools in handling corruption cases. Unfortunately, existing anti- corruption legislation did not have any specific provision to address them. Now, a provision has been introduced on the lines of the Criminal Law Amendment Ordinance 1944 for dealing with attachment, administration of attached property and confiscation of money or property procured by illegal means.

However, the Central government missed an opportunity by not adopting the best practices undertaken by some State governments such as Odisha and Bihar which enacted their confiscation legislation during 2006 and 2009, respectively.

For example, under the Bihar legislation, confiscation of property takes place prior to trial in a court of law and property or money along with five per cent interest is returned if the accused is proved innocent.

Under the new legislative framework, no confiscation can take place until the accused is proved guilty through trial and, thus, the confiscation procedure will be lengthy and time-consuming.

This situation could have been avoided. One of the hurdles connected with conviction of public servants is that trial of cases in a court of law takes many years for their conclusion.

There are a significant number of corruption cases pending for conclusion of trial. Under the new dispensation it is mandated that trial of anti-corruption cases should be held as far as possible on day-to-day basis and should be concluded within four years.

This time-bound trial is a welcome step and, hopefully, corrupt public servants would now be convicted in a short time.

Corruption in India is not diminishing. For example, India’s position in the global corruption perception index went up during 2017 as per a survey by Transparency International; it now stands at 81.

Corruption is a societal issue also. Unless a host of other measures, for example, systemic change in governance, are made, corruption will continue to thrive. However, to curb corruption, legal measures, such as the aforesaid framework, are one of the important tools.

The writer, a former member of the Indian Revenue Service, is a Senior Adviser with CUTS Institute of Regulation and Competition.

Published on August 15, 2018

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