In India, the primary law that regulates corruption related offences by public servants is the Prevention of Corruption Act, 1988. The Act of 1988 covers offences like that of taking bribe, criminal misconduct (including amassing of disproportionate assets) by a public servant and mandates prior government sanction for prosecution.

The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the government. The purpose for which those acts are performed protects them from criminal prosecution. However there is an exception- When a criminal act is performed under the colour of authority but which in reality is for the public servants’ own pleasure or benefit, then such act shall not be protected under the doctrine of state immunity.

In the year 2011, India ratified the United Nations Convention against Corruption, 2005 (UNCAC for short) and agreed to bring its domestic laws in line with UNCAC. The UNCAC covers giving and taking a bribe, illicit enrichment and possession of disproportionate assets by public servant as offences, addresses bribery of foreign public officials and bribery in the private sector.

The Prevention of Corruption (Amendment) Act, 2018

The main object of this Act is to bring the Act of 1988 in line with UNCAC. The Amendment Act of 2018 has made drastic changes in the Act of 1988 which may be summarised as follows:

  1. Scope of offence of bribe – The Act makes the giving of a bribe an offence, enlarges the definition of taking a bribe and covers commercial organisations.
  2. Taking of bribe – The Amendment Act amends the offence of taking bribe by a public servant. The punishment for the offence has been enhanced and ranges from three to seven years and shall be liable to fine.
  3. Giving a bribe – A new provision related to the offence of giving of a bribe to a public servant has been enacted. The punishment is imprisonment from three to seven years and shall also be liable to fine.
  4. Intermediaries and third party involvement – The Act penalises taking of a bribe through third parties and intermediaries.
  5. Giving of a bribe by a Commercial Organisation – A Commercial Organisation would be held guilty of giving a bribe to a public official if it offers any gratification in return of obtaining or retaining any advantage in business. The person acting for the organisation and its head would be held guilty and liable to imprisonment from three to seven years and a fine.
  6. 6. Abetment – Abetment in taking bribe would be punishable with imprisonment from three to seven years and shall be liable to fine
  7. Criminal misconduct and habitual offender: The scope of criminal misconduct and habitual have been enlarged and punishment revised from three to seven years and shall be liable to fine.
  8. Attachment of property acquired as bribe-A new Chapter namely; Chapter IV-A, titled Attachment and forfeiture of property comprising of Section 18A have been added. The investigating agency is now empowered to confiscate the property of a public servant under investigation with prior government approval and sanction by Special Judge.
  9. Protection of retired public servant – Prior sanction from State or Central Government is now necessary for the prosecution of retired public servants.
  10. Presumption of wrongdoing – The Amendment Act amends this provision to include the presumption of wrongdoing for the offence of taking of a bribe only.

Few Relevant Changes:

  • According to Section 4(4), courts no longer have to complete trials for Act-related offences within two years, failing which judges must record the demand for time extension.
  • A trial may now be extended for an additional six months at a time, up to a maximum of four years.
  • Section 8 imposes penalties on those who aid in the payment of a bribe or attempt to corrupt a public officer. The Amendment Act exempts acts undertaken under coercion, provided that the person who was alleges coercion makes a complaint with the police or an investigating agency within seven days of committing a bribe under compulsion.
  • Section 9 now expressly addresses commercial organisations and individuals linked with them. The term ‘commercial organisation’ is defined to encompass all company structures, while the phrase ‘persons affiliated with commercial organisation’ is broad enough to encompass both workers and vendors.
  • Section 10 now imposes specific lengths of imprisonment and a fine on directors, officials in default, or a person with control over a commercial organisation who consent to a corrupt act in violation of the Act’s requirements.
  • The Amendment Act appears to have narrowed the circumstances under which a public worker may face criminal charges.
  • Section 13 of the Act has been revised to include merely misappropriation of property and unjust enrichment as grounds for misconduct (which is assessed by disproportionate assets). Previously, Section 13 considered broad proclivities to solicit bribes or engage in corrupt acts to be grounds for criminal misbehaviour.
  • The Amendment Act appears to make prosecuting government personnel more difficult.
  • The change to Section 19 provides that before a public worker can be prosecuted under Sections 7, 11, 13, and 152 of the Act, a sanction must first be sought from an authority with the jurisdiction to dismiss them.
  • An investigating authority (such as a police officer) must seek authorization; more so, numerous formalities of compliance must be followed before the court can take cognizance of the offence.

Conclusion

The Amendment Act can be seen positively in terms of the anti-graft system because it contains numerous clauses relating to business organisations and individuals that provide an undue benefit. Additionally, it amended and strengthened the definitions and punishments for offences involving receiving an undue advantage, being a habitual offender, and aiding and abetting an offence.

Despite enacting necessary reforms, the Amendment Act imposed new barriers to inquiry and prosecution. The Amendment Act makes it mandatory to acquire prior approval from the appropriate government before initiating an investigation of current or former public servants. While the Amendment Act was intended to protect honest officers, it has also strengthen the shield available to the officials accused of corruption.

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