THE PREVENTION OF CORRUPTION ACT 1988

SUBMITTED TO SUBMITTED BY

FACULTY :- DR. VARINDER KAUR NAME :- PARVATHAM RAMYA

SUBJECT :- LAW 518 REG.NO :- 11806187

SECTION :- LE003 ROLL.NO :- A09

 INDEX

 INTRODUCTION

 DEFINITION OF PUBLIC SERVANT

 HISTORICAL BACKGROUND OF CORRUPTION

 LIMITATIONS OF THE PREVENTION OF CORRUPTION ACT

 LIMITATIONS OF THE PREVENTION OF CORRUPTION ACT

 CONCLUSION
 INTRODUCTION

• The Prevention of Corruption of Act, 1988 is an important legislation to fight with evil of corruption.

• The Prevention of Corruption Act 1988 was enacted to prevent corruption in Government departments and to prosecute and punish public servants involved in
corrupt practices.

• As the PC Act saw limited success an amendment was enacted (Amendment Act) and brought into force on 26 July 2018.

• The Amendment Act attempted to bring the PC Act in line with United Nations Convention against Corruption 2005 which was ratified by India in 2011.

• The 1947 Act was later amended at two instances by the Criminal Law Amendment Act 1952 and by the Anti Corruption Laws Amendment Act 1964 based on
the recommendations of the Santhanam Committee.

• The 1947 Act was later amended at two instances by the Criminal Law Amendment Act 1952 and by the Anti Corruption Laws Amendment Act 1964 based on
the recommendations of the Santhanam Committee.
• The Prevention of Corruption Act, 1988 was passed by the Indian Parliament and received the assent of the President on September, 9th of 1988 and was published in the
Gazette of India on September 12th, 1988.

• As is clear from the Statement of Objects and Reasons, the Act was passed to make then existing anti-corruption laws more effective by widening their coverage and by
strengthening the provisions. Following are the significant features of the Act:

 The Act repealed the Prevention of Corruption Act, 1947 and the Criminal Law Amendment Act, 1952. In addition, it has also omitted the Sections 161 to 165-A of the
Indian Penal Code and has reincorporated them into the Act itself under Chapter – III.

 The Act has consolidated the provisions regarding the corruption. The Act has increased the quantum of the sentence provided in the previous Act of 1947. The maximum
punishment provided in the previous Act was three years of imprisonment. While the Prevention of Corruption Act, 1988 has increased it up to five years of imprisonment in
normal conditions and seven years of imprisonment in cases of grave offences.

 The term Public Servant is defined in the Act. The definition is broader than what existed in the IPC.

 The new concept of Public Duty is introduced in the Act.

 The cases of corruption under the Act are to be tried only by Special Judges
 HISTORICAL BACKGROUND OF CORRUPTION

• The evil of corruption is not a novel one. It has been a threat to the society from the very beginning. It was one of the main causes of the fall of
Roman Empire. Similarly, it was present in India and all other parts of the world.

• The cause of corruption is the need and greed of the people. The greed factor is more responsible for the spread of this evil.

• It has endangered the lives of the common people and the honest officials as well. This evil has become so prevalent that we tend to suspect the
activities even of the honest officials.

• It has become very difficult for the honest officers to work without any fear in such an environment.
Kautilya has given a detailed list of not less than forty ways of embezzlement that the treasury officers were used to practice at that time. These ways give us an idea
about the misdeeds of public servant and as to how they misused the public machinery for their personal benefit. Some of the ways of embezzlement are

 Apahara means defalcation

 Avastra means fabrication of accounts

 Pariahapana means causing loss to revenue

 Parivartana means exchanging government articles for articles of others

 Pratibandha means obstruction

 Prayoga means loan (lending of treasury money for interest

 Samagamavishanah means inconsistency in transactions

 Upabhoga means using funds for personal enjoyment

 Vyavhara means trading carrying on trade by making use of government money

 CORRUPTION IN CHINA IS MENTIONED AS

Black Corruption (Class A) – this category of corruption includes many of the crimes like graft, bribe, fraud, embezzlement, extortion,
smuggling, tax evasion, etc. This category consists of crimes which are of economic nature. These activities are done by the officials for their
personal benefit.

Grey Corruption (Class B) – under this category of corruption, the leaders of public institutions get involved in corruption by using their
institutional power to enhance the productivity or profit of their institutions. ―Grey corruption‖ also includes the activities of spending
extravagantly upon the luxuries of officials.

White Corruption (Class C) – this category of corruption includes favoritism or nepotism. These activities are done in the process of
recruitment and promotion of State personnel by providing undue benefit to the near and dear ones. This practice of corruption is regarded as
normal by the persons who are engaged in such activities. On the other hand these activities are condemned by the persons who were left because
of these activities. But at the same time those who were left are willing to get the same undue benefit, if given a chance.
 SALIENT FEATURES OF THE ACT

Some of the salient features of the Act are :-

 It incorporates the Prevention of Corruption Act, 1947 the Criminal Law Amendment Act 1952 and Sec. 161 to 165-A of the Indian Penal Code with certain tweaks in the
original provisions.

 It has enlarged the scope of the definition such as Public Duty and Public Servant under the definition clause, Section 2, of the act.

 It has shifted the burden of proof from the prosecution as mentioned in the CrPC to the accused who is charged with the offense.

 The provisions of the Act clearly state that the investigation is to be made by an officer, not below the rank of Deputy Superintendent of Police.

 The 1988 Act enlarged the scope of the term public servant which now includes employees of the central government, union territories, nationalized banks, employees of the
University Grants Commission (UGC) vice-chancellors professors and the like.

 The Act covers corrupt acts as bribe, misappropriation, obtaining a pecuniary advantage possessing assets disproportionate to income and the like
 DEFINITION OF PUBLIC SERVANT

 The term public servant is one of the most important terms given under the Prevention of Corruption Act, 1988. It is of utmost importance because of being deciding
factor of one‘s liability being a public servant.

 Previous anti-corruption legislation that is the Prevention of Corruption Act, 1947 did not define the term public servant. It used to adopt the definition as is given
under Section 21 of the Penal Code, 1860.

THUS, THE PREVENTION OF CORRUPTION ACT 1988 PROVIDES A BROADER DEFINITION OF THE TERM WITHIN THE
ACT ITSELF UNDER SECTION 2 (C).

 Any person in the service or pay of a local authority

 Person in the service or pay of a corporation established by or under a central, provincial or state act

 Any judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons any adjudicatory functions
 LIMITATIONS OF THE PREVENTION OF CORRUPTION ACT

• There is a fine mechanism to book the accused persons under the Prevention of Corruption Act, 1988.

• The investigation agencies are equipped with vast powers regarding summon, arrest and other related actions regarding the investigation of offence under the
Act.

• The investigation agencies are equipped with vast powers regarding summon, arrest and other related actions regarding the investigation of offence under the
Act.

Examples of these loopholes

i. Insufficient punishment.

ii. Act applicable only upon public servants.

iii. Act does not cover corporate or private bribery.

iv. Act not applicable upon foreign public officials.

v. Act does not have extra-territorial application.

 LOOPHOLE IN PROVISIONS RELATING TO PUNISHMENT

• A criminal legislation without provisions of punishment is like a mouth without teeth which cannot
serve any purpose.
• Punishment is the sine qua non of an effective legislation to punish the wrongdoers and to restrain
possible wrongdoers to do such illegal activities in future.
• Hence, the system of punishment serves the dual purpose of controlling crime into the society and
punishing the criminals.
• Effective provisions relating to punishment of the crimes are thus essentials of an effective criminal
justice system.
 INCONSISTENCY REGARDING PUNISHMENT BETWEEN SECTION 13 AND 14

• It is also interesting to note here that there is no limit as to number of instances to establish the ―habit‖ of the accused. It is necessary to establish a number of
instances of bribery spread over a reasonable period of time.

• It was held in Biswabhusan naik v. State that the legislature has not imposed any limit as to the number of instances or the period to be covered as being
sufficient or necessary for proof, which it might well have done

Section 13 deals with criminal misconduct by a public servant

OM PRAKASH GUPTA V. STATE OF U.P AIR 1957 SC 458

The supreme court held that the offence of criminal misconduct punishable U/s 5 (2) of the prevention of corruption act, 1947 (which is equivalent to sec. 13(1)(e) of
the prevention of corruption act, 1988, prior to substitution) is not identical in essence, import and content with an offence U/s 409 of the indian penal code. The
offence of criminal misconduct is a new offence created by that enactment and it does not repeal by implication or abrogate s. 409 of the indian penal code.

Section 14 of the act is also relevant to study which states that habitual committing of offence under sections 8, 9 and 12

The term of punishment was one year minimum and seven years maximum‖ under section 13 and two years minimum and seven years maximum‖ under section 14.
SECTION 17: PERSONS AUTHORISED TO INVESTIGATE

VINOD KUMAR GARG V. STATE GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI (2020) 2 SCC 88,

Apex Court has held that if an investigation was not conducted by a police officer of the requisite rank and status required Under
Section 17 of the Act, such lapse would be an irregularity however unless such irregularity results in causing prejudice,
conviction will not be vitiated or be bad in law. Therefore the lack of sanction was found not to be a ground for quashing of the
proceedings.
SECTION 19: PREVIOUS SANCTION NECESSARY FOR PROSECUTION

ROMESH LAL JAIN V. NAGINDER SINGH RANA & ORS (2006) 1 SCC 294

the Supreme Court held that an order granting or refusing sanction must be preceded by application of mind on the part of
appropriate authority on material placed before it.
SECTION 20: PRESUMPTION WHERE PUBLIC SERVANT ACCEPTS ANY UNDUE ADVANTAGE

C.M. Girish Babu v. CBI, (2009) 3 SCC 779

the Apex Court has held as follows It is well settled that the presumption to be drawn under Section 20 is not an inviolable one.
The accused charged with the offence could rebut it either through the cross examination of the witnesses cited against him or by
adducing reliable evidence. It is equally well settled that the burden of proof placed upon the accused person against whom the
presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a
reasonable doubt.
 SECTION 21 ALREADY EXISTS UNDER THE CODE OF CRIMINAL PROCEDURE

• Section 21 of the Prevention of Corruption Act establishes that the persons who have been accused under the Act shall be competent witnesses in the eyes of
law under some specified circumstances.

• This provision was added to give fair opportunity to the accused to defend his case.

• the provision favours the concept of natural justice by providing an accused all opportunities to plead his case and he may act as a witness for himself or any
other persons accused under the same case

• Under Section 21 of the Act, any person punishable under the Prevention of Corruption Act 1988 shall be a competent witness for the defense and may give
evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial.

• But a limited technical flaw is that the wording of the Section is the same as is given under Section 15 of the Code of Criminal Procedure. Hence there was
no need of incorporating this provision again within the anti-corruption legislation
 INVESTIGATING AGENCIES CONSTITUTED FOR IMPLEMENTING ANTI-CORRUPTION POLICIES IN INDIA

SUPREME COURT AND HIGH COURTS

Any citizen can file a petition, known as Public Interest Litigation, before the Hon‘ble High Courts and Hon‘ble the Supreme Court, alleging corruption in the public sector. If the
Hon‘ble High Courts and the Supreme Court find the allegations credible, they can refer such cases to the Central Bureau of Investigation for further enquiry or investigation. Many
big cases of corruption have been successfully investigated by the agency in the past on such references from these courts

CENTRAL VIGILANCE COMMISSION (CVC)

Central Vigilance Commission is an apex Indian governmental watchdog body created in 1964 to address governmental corruption constituted under the provision of Central
Vigilance Commission Act, 2002. It has the status of an autonomous body i.e. free from executive control. The Central Vigilance Commission set up by the Government of India to
advise and guide central government agencies, as well as it also have special power to analysis of complaints of corruption, professional misconduct, misuse of power by
administrative bodies.
CENTRAL BUREAU OF INVESTIGATION (CBI)

The Central Bureau of Investigation is an investigating agency set up by the Government of India to investigate crime, especially corruption cases in Union Territories, which are
directly administered by the Government of India. Over a period of time, it has become the premier corruption investigation agency in the country. It enjoys high credibility
amongst the people of India. As a result even the States also refer sensitive and large-scale corruption cases to the Central Bureau of Investigation for investigation. The High
Courts of various States and the Supreme Court of the country have powers under the Indian Constitution to entrust investigation of any crime to the Central Bureau of
Investigation for investigation.

COMPTROLLER AND AUDITOR GENERAL OF INDIA (CAG)

Comptroller and Auditor General is supreme constitutional audit authority of India. Comptroller and Auditor General is the watchdog on each and every
financial transaction of Central or State department such as railway telecom public sector organizations etc. Every department or organization is subject
to internal audit as well as of statutory audit. Comptroller and Auditor General is one of the institutions to prevent the corruption in government
department. Art.148 of the Constitution deals with Comptroller and Auditor General. In democratic form every department is accountable to the people.
Role of Comptroller and Auditor General in democracy is as prejudiciary. Main function of the Comptroller and Auditor General is to see that, money
sanction by parliament must be spent only for that purpose for which it is sanction

ANTI-CORRUPTION BUREAU (ACB)

These police agencies of the States are meant mainly for investigating corruption cases within the States under the Corruption Act. They are responsible
for the prevention, detection and investigation of corruption crime only and are not engaged in conducting other police duties such as handling
conventional crimes and law and order. After investigating a crime they file the investigation reports in a court of law to launch prosecution
 CONCLUSION

• Here we have concluded by providing valuable suggestions dealing with the evil of corruption. We have suggested certain
amendments into the Prevention of Corruption Act 1988.

• The future scope of the corruption rests upon the introduction of these amendments into the anti-corruption law. The anti-
corruption regime in India is at its revolutionary stage where various statutes have been enacted and others are in pipeline.

• The mutual consistency of these statutes complementing provisions of each other might prove to be a great success against
the evil of corruption.