Admin presentation

Good morning everyone, so my topic of research Critical analysis of Prevention of corruption bill 2013.

First I will start with a little background such as some previous amendments and recommendations
before this 2013 bill so, To make anti- corruption laws in India more effective the Prevention of
Corruption Amendment Act, 1988 was enacted. By 166 th Law Commission report of India
recommendation was made for the enactment of separate law which provide for forfeiture of property
which are acquired through corrupt means by the public servants and the Committee Civil Services
Reform ( Hote Committee) and it also recommended for more transparent and accountable
administration of Civil Services. These recommendations were taken into consideration and it was
proposed to amend the PC act. As a Consequence, On December 19, 2008, The Prevention of Corruption
(Amendment) Bill, 2008 was introduced in Lok Sabha but it was not passed . This bill included provisions
related to attachment of property of corrupt public officials, and extending prior sanction for
prosecution to former public officials.

Then coming to Prevention of corruption amendment bill 2013,

On may 2011, India signed the United Nation Convention against Corruption (UNCAC), it necessitated, a
review of the existing provisions of the Act, so as to bring it in line with current international practice
and also to meet, more effectively, the country's obligations under the UNCAC. In order to fulfill its
international obligations, India introduced The Prevention of Corruption (Amendment) Bill, 2013 in the
Rajya Sabha on 19th August 2013 to amend PC Act, 1988. On 16th February, 2014 the Department
Related Parliamentary Standing Committee submitted its report on the Bill to the Rajya Sabha. Further
amendments to the Bill were circulated by the government on November 27, 2015.

Then I will come to the object and reason of this 2013 bill

The prevention of Corruption Act 1988 provided to prevent corruption and for the matters connected
with it. It makes clear that the amendments were necessitated by India’s ratification of the United
Nations Convention Against Corruption (UNCAC) in May 2011, judicial pronouncements, and the need to
bring domestic law in line with international practices. the need so as to fill the gaps in the act.
Therefore, the present was Bill.

Features of the proposed amendments to the PC Act 1988

1. The main aim of these amendments are to laid down more strict and rigorous measures to deal
with corruption.
2. Providing for more severe punishment for the offences of bribery, both for the bribe giver and
the bribe taker.
3. Penal provisions being enhanced from minimum 6 months to 3 years and from maximum 5
years to 7 years .
4. To contain gain of benefits from profits of corruption, the powers of attachment are proposed to
be conferred upon the trial Court (Special Judge) instead of the District Court.
 5. Expanding the ambit of provision for containing inducement of public servant from individuals
to commercial entities is being added to contain supply side of corruption.
6. Providing for issue of guidelines for commercial organizations to prevent persons associated
with them from bribing a public servant.
7. It is proposed to ensure speedy trial by providing a trial completion within 2 years.
8. Intentional enriching by public servants will be construed as criminal misconduct and
possession of disproportionate assets as proof of such illicit enrichment.
9. 10. It is also proposed to extend the protection of prior sanction for prosecution to public
servants who cease to hold office due to retirement, resignation etc.
10. 11. Further, prior sanction for inquiry and investigation shall be required from the Lokpal or
Lokayukta, as the case may be, for investigation of offences relatable to recommendations made
or decision taken by a public servant in discharge of official functions or duties.

Salient features of the proposed 2013 bill

1. Giving of bribe- The bill introduces a new provision related to the offence of giving of a bribe to
public servant

The punishment awarded for giving of a bribe is imprisonment for three which may extend to seven
years and shall include fine.

There was no such provision for bribe giver under PC Act1988 and it also used to give protection to
bribe givers under sec 24. As it provides protection to bribe givers, that the bribe giver made statement
for an offense under the PC Act against a public servant, that any gratification or any valuable thing has
been offered or agreed to be offered by bribe giver to the public servant, then such person shall not be
subjected to prosecution under section 12.

The Prevention of Corruption (Amendment) Bill, 2013 criminalized ‘bribe giving’ under all
circumstances .

According to the Standing Committee there is possibilities that an individual may be forced or
compelled to give bribe as in such circumstances he/she requires protection .Therefore, the court shall
keep into account the facts and circumstances of each cases while determining the liability of the bribe
giver.

Certain offences related to criminal misconduct not addressed

Under the Prevention of Corruption Act, 1988 criminal misconduct by public servant includes-

1. Using illegal means to obtain any valuable thing or monetary reward for himself or any other
person .
2. Abusing his position as a public servant to obtain a valuable thing or monetary reward
3. Obtain valuable thing or monetary reward without public interest for any person.

But the bill redefines criminal misconduct by public servant only include-
 1. Fraudulent misappropriation of property under one’s control and
2. Intentional illicit enrichment and possession of dis-appropriate assets.

Due to these changes the bill does not cover the three circumstances which were included in 1988 act.

Liability of corporation

All kinds of enterprises in India in addition to also those which are incorporated beyond India but
participate in business in India includes in the term ‘commercial organization’

The bill introduces direct offence for the first time related to the liability of the Corporation.

Section 8 of 2013 bill criminalize act of commercial organization of bribing a public servant .

For such act the commercial organization had to pay fine .

If there is failure on the part of commercial organization to prevent the linked persons from it for
bribing a public servant for preservation of business or attaining profit in business then such
organization will be accountable for this failure according to sec 9 of the bill.

When there is breach of PC Act by the commercial organizations then the key personnel who runs the
organization will be accountable for the offence . He will be liable of punishment of minimum three year
imprisonment which may extend to seven years, and also liable for fine.

Burden of proof

In the Bill the burden of proof is on the person who is facing the trial but only for the offence of taking
bribe. The accused have to prove that the reward that he/she obtain was not a bribe. Unlike the PC
Act, 1988, the prosecution proves the offences related to – i) habitual offender ii) Abetment and
iii) giving a bribe, as there will be no presumption, that the accused has committed the offence.

Provisions related to Investigation

➢ Section 17A (Prior Sanction for Investigation)

So in PC Act 1988 there was no provision for this. In 2013 bill it was inserted .

1. 17A as recommended by the Select Committee makes it obligatory on the police/probe agency to
obtain prior sanction in cases of corruption involving the employees of the Union/State before initiating
any inquiry/investigation.

2. The competent authority shall convey its decision within 3 months, which is extendable by another
month. No such approval is necessary if a person is arrested on the spot on the charge of accepting or
attempting to accept any undue advantage.
3. The official amendment (2015) provided for approval of Lokpal/Lokayuktas.

➢ Attachment and Forfeiture of Property

For attachment and forfeiture of property there was no provision in 1988 bill.

18A has been proposed to be inserted. It inter alia provides that except as provided under the Money
Laundering Act 2002, the provisions of the Criminal Law Amendment Ordinance, 1944 shall apply in
respect of attachment and forfeiture of property or confiscation of money obtained through corrupt
practices.

2. The references to the District Judge (in the above Ordinance) shall be construed as references to
Special Judge

Provisions related to Sanction for Prosecution

section 19 of the Prevention of Corruption Act, 1988 provides that a sanction is needed before the
commencement of the prosecution against any public servant. It is amongst the most controversial
section as this section has been abused to slow down or postpone the proceedings against the public
servants. But it is made to save public servants from malicious accusations and vexatious litigation for
any action done bonafidely while performing his official duty. This protection has been extended to
former public servants by Clause 10 of the Bill.

Time limit for Sanction

Secondly There was no provision regarding the Time limit for completion of sanction in 1988 Act but
the 2013 The bill provide for time limit within which the sanction is to be accorded by the appropriate
authority.

2.A period of three month shall be given to the appropriate authority whether to give sanction or not .

3.This period can further be extended to one month provided reasons are recorded in writing by
appropriate authority and consultation with attorney general. 4. But the bill does not provide any
punishment against sanctioning authority failing to meet time line.

Key issues

1. A public servant will not be charged with taking a bribe if he proves that he did not ‘perform his
public functions dishonestly’. As this term has not been defined, the circumstances under which
a public servant’s actions would qualify as ‘honest’ is unclear.
2. The 2013 Bill makes giving a bribe a direct offence. There are diverging views on whether
bribe giving under all circumstances must be penalized. Some have argued that a coerced bribe
giver must be distinguished from a collusive bribe giver.
3. The requirement of prior sanction for investigation may be considered necessary to protect a
public servant from harassment. However, it could delay investigation into genuine cases of
corruption.
4. The Supreme Court had also observed that such a provision could affect the efficiency of the
investigation process.
5. The Lokpal, and Lokayuktas in some states, have not been constituted. This may affect the
obtaining of prior sanction for investigation.

Conclusion

According to the Statement of Objects and Reasons of the 2013 Bill, the amendments to the Act
were introduced to bring it in line with the UNCAC, 2005. However, certain provisions of the UNCAC
have not been included in the 2013 Bill .These include:

i) giving a bribe to a foreign public servant;

ii) ii) taking a bribe by a private sector entity; and
iii) (iii) compensation for those aggrieved by acts of corruption.

Overall, the bill take stringent measures for the purpose of tackling corruption. It makes bribe
giving a specific offence. The bill has expanded the ambit of inducement of public servant from
individuals to commercial entities also. It also provide for time limit for the procedure of sanction
which would help in disposal of cases at faster rate It will ensure that organizations begin to take
anticorruption and anti-bribery compliance a lot more seriously.