Introduction:
India is a country with the second largest population in the whole world. Among the vast population, there are a large number of people who prefer to serve in government jobs and avail benefits provided by the government. Though the Anti-Corruption Laws in India are strict, corruption still exists. Some abuse their position of power to gain economical favors and by doing so, they disregard their sense of duty and righteousness. Corruption is a form of a dishonest or criminal act, perpetrated by someone in a position of authority in order to get illicit benefits or to abuse power for personal gain. Businesses face significant corruption risks in the public sector. When interacting with India’s government, companies are likely to encounter red tape, minor corruption, bribery, and facilitation fees.
Conflicting regulations and a complicated bureaucratic system with wide discretionary powers continue to restrict India’s economy. Facilitation fees are prevalent in order to speed up public services such as police protection, water delivery, and government aid. Businesses also complain that the government’s bureaucracy is inefficient and onerous and that bribes are frequently paid when applying for public services. Facilitation fees are also prevalent in order to speed up public services such as police protection, water delivery, and government aid. Businesses complain that the government’s bureaucracy is inefficient and onerous and that bribes are frequently paid when applying for public services. Corruption isn’t only found in the public sector. People in any sort of position to command or control something, are prone to become corrupt. Greed and selfishness are human flaws that interfere with the notion of one’s integrity and morality.
India’s Anti-Corruption Law is based on the Prevention of Corruption Act. Regardless, the recently modified Prevention of Corruption (Amendment) Act, 2018 makes it more difficult to investigate and prosecute corrupt public officials, diluting the Prevention of Corruption Act’s basic essence. Although the latest modification to the PCA has made significant improvements to how things will operate in the future, certain parts have made it much more difficult to probe corrupt public officials. Few of the act’s changes have helped to improve the fight against corruption, while others have merely made it easier for corrupt officials to avoid inquiry and conviction. The many concerns of the revised Act will be covered in this article.
History
India’s anti-corruption law is based on the Anti-Corruption Act of 1988 primarily. The newest amendment of 2018, criminalized the acceptance of bribery by anyone instead of just civil servants. The Act of 1988 came into force after replacing the post-colonial PC Act of 1947[1] which was also amended in the year 1964. The newly amended legislation of 1988, prioritized making the anti-corruption laws, take into consideration wider aspects of the same. The first Act helped in laying the foundation for the Act of 1988.
India is rated 102nd out of 198 countries in the Corruption Perception Index 2020[2]. Even though corruption has always been a problem for many governments, the most recent amendment to the act has made it far more difficult to not just investigate but also punish corrupt government officials. Having said that, there are several flaws in the way investigations are conducted, which must be addressed as soon as possible. The PCA went into effect on September 9, 1988, and it applies to all Indian nationals living in India and abroad. The Prevention of Corruption Act was enacted to combat corruption in the country, but it also instilled fear in individuals, causing them to refrain from engaging in such behavior.
From the Anti-corruption Bureau (ACB) to the Chief Vigilance Commission (CVC), there are a number of institutions in India that play a significant role in detecting and combating corruption. The ACB’s primary mission is to gather intelligence in order to detect and investigate incidents of bribery that fall under Section 5 of the PCA. Regardless, the CVC is not an investigative body, and the PCA only allows it to propose disciplinary action against specific types of public employees. Group A, B, and other AIS officials should face disciplinary action, according to the CVC. With that stated, the CVC as an institution is ineffective, since the country’s PCA conviction rate is low, and it lacks the authority to begin an investigation into officers with the level of JS and higher. Even though the latest modification to the PCA has made significant improvements to how things will operate in the future, certain parts have made it much more difficult to probe corrupt public officials. PCA 2018 has also been widely panned by the general public, including prominent attorneys such as Prashant Bhushan. Few of the act’s changes have helped to improve the fight against corruption, while others have simply made it easier for corrupt officials to avoid inquiry and conviction.
In the case of Vineet Narain & Ors. versus Union of India[3], the apex court rewarded the CVC with higher execution status and declared the CVC to be responsible for the actions of the Central Bureau of Investigation (CBI), and oversee the functioning of the same. The CBI was to report its’ cases, findings, and investigations directly to the CVC.
The anti-corruption acts, together with other statutes and legislations, prove to be a valid deterrent for those who indulge in corruption. However, the mere existence of stringent laws won’t be enough. It is necessary to ensure the correct implementation of the same and ensure that justice is delivered.
Prevention of Corruption Act
The Prevention of Corruption Act, 1988 (PCA) is India’s principal anti-corruption legislation, outlawing, among other things, the taking and giving of “undue benefit” to “public officials.” A violation of the PCA can result in penalties for both people and businesses. This act is an amendment to the original legislation passed in the year 1947 and repealed the overlapping clauses of the same.
Any gratification (not restricted to being financial in character or estimable in money) other than the lawful pay that a public servant is authorized to receive either from the government or any other organization served by the public servant constitutes an unfair advantage, according to the PCA. Moreover, the phrase “public servant” has now been broadly interpreted to include anyone employed or paid by any government, local council, legislative corporation, government business, or other government-owned, monitored, or assisted entity, along with the judiciary, adjudicators, and workers of establishments able to receive government monetary support. The Supreme Court of India decided in CBI v. Ramesh Gelli & Others[4], that workers of banks (whether public or private) are also deemed public servants under the PCA because of specific provisions of Indian banking legislation.
Public servants obtaining any undue advantage with the intent of, or as a reward for, improperly or dishonestly performing or causing the performance of public duty, and/or public servants obtaining any undue advantage without consideration from a person concerned in proceedings or business transacted either by the public servant[5] or by any of the person’s superiors are among the offenses under the PCA. The Act also makes it illegal for a public worker to commit criminal misbehavior (which includes having excessive assets) or to commit a further crime after being convicted under the PCA.
Under the PCA, numerous offenses are punishable by imprisonment ranging from six months to ten years, as well as a fine (with one instance where it is imprisonment, a fine, or both). Furthermore, recent legislative revisions to the PCA have included measures for the attachment and seizure of property obtained via the commission of a PCA offense. It isn’t out of the realm of possibility for investigators to claim that any benefit gained by a bribe-giver as a result of the bribery may be susceptible to attachment and seizure, not only the property of the public officials in the issue. The PCA further stipulates a two-year grace period in which the judiciary must attempt to finish the trial, with a maximum four-year extension possible. The PCA offers protection to a man charged with supplying preferential treatment if that individual was forced to do so and is prepared to disclose the issue to the appropriate enforcement agency or investigative agency in less than 7 days of the date of the unfair benefit.
The Central Bureau of Investigation (CBI) (in the event of offenses involving charges against central government employees) or anti-corruption branches of state police investigate violations under the PCA. Trials in PCA cases are held in special courts. It’s worth noting that the PCA requires the government’s prior approval before any prosecution of public employees may begin. This safe harbor, however, only applies to actions against serving and former public employees, not to those accused of bribery.
This Act was recently amended in 2018. Before the amendment, the PC Act was only applicable against a public servant, instead of any person in a position to abuse their authority[6]. Parliament approved the Prevention of Corruption (Amendment) Act 2018 in July 2018, amending and bringing substantial amendments to the existing Prevention of Corruption Act 1988. The Amendment Act, among other things, makes bribe-giving a particular offense and introduces the notion of corporate criminal responsibility for bribery. The New Law included a new provision requiring police officers to get prior consent from the appropriate regulatory body before investigating an offense under the Prevention of Corruption Act perpetrated by a civil servant[7]. This clause has been challenged in India’s Supreme Court, and a decision is pending.
The Ordinance, which incorporates numerous measures pertaining to commercial organizations and people who provide an unfair benefit, can be regarded as a beneficial step in terms of the anti-graft system. It also changed and improved the definitions and punishments for crimes such as taking an unfair advantage, being a chronic criminal, and aiding and abetting an infraction. Having brought about much-needed improvements, the Act adds to the investigative and judicial burden. The Act makes it mandatory to get prior approval from the proper government before launching an investigation into current and former public employees.
Besides that, under the PC Act, a person’s guilt was inferred if he or she accepted an unfair benefit, was a chronic criminal, or aided and abetted an offense. Only the offense of taking an unfair benefit is now subject to this assumption. For those suspected of being habitual offenders or aiding and abetting an offense, the burden of proof is transferred to the prosecution. Additional details, like the amount of the penalties for business enterprises, have still to be determined. When the Rules are finalized and announced by the Government, they should specify to whom a prospective quid pro quo provider must notify ahead of committing a prospective act of bribery within the time limit.
In 2016, the government announced the demonetization of Rs500 and Rs1000 banknotes to address unethical behaviors such as black money hoarding outside the official economy, tax evasion, and the use of illicit or counterfeit currency to support unlawful activities. As a result of the data obtained from financial institutions, tax offices, and other anti-corruption organizations, questionable individuals and businesses have been identified and taken action against.
The Ministry of Corporate Affairs shut out 224,000 shell firms voluntarily in 2017, imposing limitations on the use of their bank accounts and the transfer of business property. Directors who failed to comply with specified criteria under the Companies Act 2013 were disqualified. Any director or other authorized signatory of a struck-off company who tries to siphon money from the company’s bank account will face a prison sentence ranging from six months to ten years, with a minimum sentence of three years and a fine of up to three times the amount involved in the fraud involves public interest, according to the ministry. With the aid of different enforcement authorities, the prime minister’s office has formed a special task force to supervise the campaign against such defaulting firms. Moreover, an amendment to the Businesses Act 2013 was enacted in 2018, reinstating the necessity for newly established corporations to announce the beginning of an activity, which may limit the formation of shell companies.
The United Nations Convention Against Corruption was ratified in 2011, and India is a signatory. It is also a G20 Anti-Corruption Action Group member. Furthermore, the International Chamber of Commerce’s guidelines and draught provisions have persuasive value in the country.
Conclusion and Reforms
Even though the laws laid down are stringent in documentation, the implementation tends to lag and causes mistrust to ignite amongst the people, against the law. However, it’s a little too early to judge the outcome of the new amendment, the success of which, depends solely on implementation.
Abuse of power for one’s gains is a threat that is hard to eliminate, but not unlikely to mitigate. The administration’s poor pay is the major motivator for workers to engage in bribery. The desire for more wouldn’t abate until the state implements significant adjustments to its worker’s compensation system. The average person considers paying an officer a set fee to complete a duty to be a routine task. It’s only common sense.
If someone is willing to pay the bribe requested by the officer in order to complete the task, the identical case that generally requires a lot of time to clear is approved in moments. The PCA is undoubtedly a positive step forward, however, several aspects of the PCA make it harder to decrease corruption.
Section 17A is highly contentious, as it forbids even the investigative process without prior consent. Although this clause provides police with some immunity, it is justifiable for a variety of reasons.
To begin with, it is well known that officers are subjected to spurious complaints to the CVC. Furthermore, investigating organizations just wait for a chance to repair officers in order to appease political superiors. If a departmental investigation is launched into an officer who has done nothing illegal, but the complaints show otherwise, his promotions, allowances, increments, and perks are all put on hold until the investigation is completed. The investigation reveals that he is guilty. In a court of law, he challenges the same. He eventually wins the lawsuit, and the Court grants him all of his benefits retroactively. He may have won the long-running lawsuit, but the most successful years of his career have been erased due to an unproven claim. This is when the 17A supplement comes in handy.
To eradicate corruption considerably, The Prevention of the Corruption Act (Amended), 2018, should include pre-implementation clauses and the government should also increase the salaries of office workers.
References:
[1] Prevention of Corruption Act, 1947; came into effect on September 9, 1988.
[2] See Global Corruption Index via https://risk-indexes.com/global-corruption-index/
[3] Vineet Narain & Others Versus Union of India & Another; decided on December 1997
[4] C.B.I. Bank Securities & Fraud cell v. Ramesh Gelli & Ors; Criminal Appeal no. 1077-1081 of 2013, decided on 2 June, 2016.
[5] The Prevention of Corruption Act (1988), Section 7A
[6] The Prevention of Corruption Act (2018), Section 9
[7] Id. Section 19
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