Intro
- The Prevention of Corruption Act, 1988 is an Act of the Parliament of India enacted to combat corruption in government agencies and public sector units of government in India.
- History - The Prevention of Corruption Act, 1947 was based on the recommendation of the Santhanam committee report.
Features:
- It consolidated the provisions of the Prevention of Corruption Act, 1947, the criminal law amendment act, 1952 and sec.161 to 165 A of Indian Penal Code 1860)
- The 1988 Act enlarged the scope of the term ‘public servant’ and included a large number of employees within its ambit.
- Appointment of Special Judges: The Central and the State Government is empowered to appoint Special Judges by placing a notification in the Official Gazette.
- Cases to be tried by the Special Judges: The offences punishable under this act can be tried by special Judges only.
Penalties:
(i) Taking gratification in order to influence public servant, by corrupt or illegal means, shall be punishable with imprisonment for a term which shall be not less than three years but which may extend to seven years and shall also be liable to fine.
Prevention of Corruption (Amendment) Bill 2018 Intro
- The Parliament passed the Prevention of Corruption (Amendment) Bill 2018 to enhance transparency and accountability of the government.
- The amendment was necessitated to bring it in line with the United Nations Convention against Corruption (UNCAC)
Case laws
In an important ruling, the Supreme Court held that direct evidence of demand or acceptance of bribe is not necessary to convict a public servant under the Prevention of Corruption Act and that such fact can be proved through circumstantial evidence when there is no direct evidence available against him.
Section 2(b) of the Act
- Section 2(b) of the Act defines “Public duty” as a duty in the execution of which the state, the public, or society at large has an interest.
- The term ‘state’ has a broad meaning as well. In this context, state means
A corporation created or founded by a Central, Provincial, or State Act.
A government authority or a body controlled or aided by a government company, as defined in Section 617 of the Companies Act of 1956.
Whether they are public servants or not?- Minister, Chief Minister, and Prime Minister
- According to Clause (12) of Section 21 of the Indian Penal Code, which is equivalent to Clause (c) of Section 2 of the Prevention of Corruption Act, 1988, a Minister, Prime Minister, or Chief Minister is a public servant.
- The Supreme Court in the case of M. Karunanidhi v. Union of India (1979), determined that a Minister is employed by and subject to the authority of the Governor, receives compensation for labour or duties performed on behalf of the public, and is paid his salary from public money.
- A Member of the Legislative Assembly (MLA) was found not to be a public servant under Section 21 of the Indian Penal Code, but he is covered by Clause (c) of Section 2 of the Prevention of Corruption Act, 1988.
P.V. Narasimha Rao vs State (1998)
In P.V. Narasimha Rao vs State (1998), the definitions of “public duty” and “public servant” were questioned. Thus the Supreme Court’s decision made it apparent that the terms “public duty” and “public servant” would be given a broad construction. An MP would therefore be subject to section 2 of the Prevention of Corruption Act, 1988, even if no authority may obtain authorisation for his prosecution under section 19 (1) of the Act.
The function of the bribe provider and the presumption of taint
According to Section 20 of the POCA, there is a presumption that any expensive item or pleasure discovered in the hands of a person under investigation was obtained for the reasons described in Section 7 of the Act. This is a rebuttable presumption, and the individual under investigation would have the burden of proving that the valued item or gratification was not obtained in connection with the Act’s violation. Accordingly, a person under investigation would be found guilty if no evidence was presented to refute the assumption, as was decided in the case of M. Narsinga Rao vs State of Andhra Pradesh (2001).
Parkash Singh Badal And Anr vs State Of Punjab And Ors, (2006)
The Supreme Court ruled in the case of Parkash Singh Badal And Anr vs State Of Punjab And Ors, (2006) that if a public servant received compensation for persuading another public servant to perform or refrain from performing any official act, he would be subject to the provisions of Sections 8 and 9 of the Prevention of Corruption Act. In the same case, the Supreme Court determined that satisfaction might be of any form for Sections 8 and 9, indicating that the scope of their applicability was broad
Subash Parbat Sonvane vs State of Gujarat (2002)
Similar to Section 7, Section 13(1)(d) has been the focus of extensive litigation. The Supreme Court in the case of Subash Parbat Sonvane vs State of Gujarat (2002) held that to be found guilty under Section 13(1)(d), there must be proof that the subject of the investigation, i.e the person under investigation, obtained something valuable or financially advantageous for himself or another person through dishonest or illegal means, by abusing his position as a public servant, or by obtaining something valuable or financially advantageous for another person without any consideration of the public interest
Bhupinder Singh Sikka vs CBI (2011)
The Delhi High Court in the case of Bhupinder Singh Sikka vs CBI, (2011) found that an employee of an insurance company established by an Act of Parliament was inherently a public servant and that no evidence was necessary in this regard
Habibulla Khan vs State of Orissa (1995)
It was decided in this case, Habibulla Khan vs State of Orissa,(1995) that, while an M.L.A. falls under the definition of a “public servant,” he is not the type of “public servant” for whom the prior sanction is necessary for prosecution.
This paradox was further resolved by a five-judge bench of the Hon’ble Supreme Court in P.V. Narasimha Rao vs State (C.B.I.), 1998, which stated that a Member of Parliament holds an office and is required or accredited to execute responsibilities like public obligations by such office.
prosecuting agency must obtain permission from the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha, as the case may be, before submitting the charge sheet
Vasant Rao Guhe vs State of M.P. (2017)
The Supreme Court held in this case of Vasant Rao Guhe vs State of M.P., (2017), that a public official accused of criminal misconduct cannot be expected to explain the absence of evidence to support the claim that he had property or money that was out of proportion to his known sources of income. The bench ruled that the prosecution must prove beyond a reasonable doubt that the public servant, had at any point during his employment, pecuniary resources or property that was out of proportion to his known sources of income.
If the prosecution fails to prove this burden, the prosecution will only be able to prove criminal misconduct.
state of mp v shambhu dayal nagar
Corruption among public servants has become a gigantic problem and the menace is affecting adversely nation-building activities, observed the Supreme Court.
‘Corruption is like a cancer, which is fast depleting the vital veins of the body politics, social fabric, efficiency in public service and demoralising the honest officials
The court also quoted with approval the observations made by the apex court in Swantatar Singh versus State of Haryana
Swantatar Singh versus State of Haryana
, ‘‘The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assidously to the performance of the duties of his post. The reputation of corrupt would gather thick and unchaseably clouds around the conduct of the officer and gain notoriety much faster than the smoke.’’
Criminal misconduct
- The Amendment Act replaced the old definition with a truncated definition of criminal misconduct to include only the following two acts: (i) misappropriation or conversion for his own use, any property entrusted to or under the control of a public servant: and (ii) amassing assets disproportionate to known sources of income.
- To prove the latter, the intention to acquire assets disproportionate to income must also be proved, in addition to possession of such assets.
- Thus, the scope of criminal misconduct has been narrowed and the threshold to establish the offence of possession of disproportionate assets has been increased by the Amendment Act.
- Any public servant, who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to 7 years and shall also be liable to fine.
Conclusion
an Act alone will always lose the battle against corruption, the investigating agencies’ effectiveness and efficiency are also crucial in this respect.
Highlights of the 2018 Amendment Act
- Defined ‘Undue advantage’.
3. - Persons liable for offering a bribe to public servants
- Offering of bribes by commercial organisations
- Redefining criminal misconduct
- Time frame for trial
- Enhancement of Punishment
Persons liable for offering a bribe to public servants:
Persons liable for offering a bribe to public servants: Previously, the PC Act did not contain a separate provision for a person who gives or promises to give an undue advantage, but the Amendment Act makes giving an undue advantage by a person to a public servant, a specific offence punishable by 7 (seven) years imprisonment or fine, or both. However, if a person is forced / coerced to give an undue advantage but reports the same to the concerned authority within 7 (seven) days of doing so, he shall not be liable for the same. Further, as per the PC Act, during a corruption trial, if a person made a statement that he gave an undue advantage to a public servant, it would not be used to prosecute him for the offence of abetment. The Amendment Act omits this provision. Effectively, it may become a potential risk for bribe givers to testify against the corrupt, and they may be discouraged from appearing as witnesses in a trial against public servants.
Offering of bribes by commercial organisations
Section 9 of the PC Act has been substituted by the Amendment Act to provide for a specific provision for offences committed by commercial organisations and persons associated with it. It provides that if a commercial organisation commits any of the offences listed out in the PC Act with the intention to obtain or retain business or obtain or retain an advantage in the conduct of its business, then such commercial organisation shall be punishable with fine, quantum of which is not prescribed in the Amendment Act.
2. Further, if such an offence is proved to have been committed with the consent or connivance of any director, manager, secretary or other officer of the organisation, then such person shall also be prosecuted under the PC Act.
Prior sanction of appropriate government for investigation and prosecution:
The PC Act required prior sanction of the appropriate government for prosecution of serving public officials. The Amendment Act extends this protection of requirement of prior approval to investigation prior to prosecution. Further, such protection is extended to former officials as well, for offences done while in office. The third proviso to Section 19(1) provides for a directory (not mandatory) time period of 3 (three) months within which the appropriate government must convey the decision on such sanction. Additionally, the Central Government may prescribe guidelines for grant of sanction for prosecution.
Time frame for trial
: The PC Act did not provide a time frame within which the trial was to be completed. However, the Amendment Act now prescribes that the Special Judge shall endeavour to complete the trial within 2 (two) years. This period can be extended by 6 (six) months at a time and up to a maximum of 4 (four) years in aggregate subject to proper reasons for the same being recorded. The wording of the section is directory in nature and not mandatory, making it less likely that the courts will abide by such timelines.
Enhancement of Punishment
: Punishment has been increased from a minimum imprisonment term of 6 (six) months to 3 (three) years, and from a maximum of 5 (five) years to 7 (seven) years, with or without fine. Punishment for abetment of offences has also been increased by the same quantum.
