Analysing the amendments in Prevention of Corruption Act

The current Indian government has shown its commitment towards reducing corruption in the country consistently. There is a continuous endeavour to weed out corruption. Be it demonetization or the passing of the Fugitive Economic Offenders Bill, a multi-pronged attack against corruption has been launched by the government.

The latest of these efforts is the amendment brought about in the Prevention of Corruption Act. The has sought to make the legislation more stringent government through these amendments and punish not only the bribe takers but also the bribe givers. Through this article, the authors seek to analyse the changes brought about and whether these changes would actually help in reducing corruption.

Key Changes Brought About Under the Prevention of Corruption Act (Amendment) Bill, 2018

Redefining Criminal Misconduct

The amendment seeks to redefine the definition of criminal misconduct as given under the section 13 of the current Act. It purports to bring under the ambit of the criminal misconduct, the following acts:

§ Misappropriation of assets

§ Possession of disproportionate assets

The amendment makes intentional possession of disproportionate assets punishable. This change is greatly debated, as some say that the inclusion of intention would lower the threshold for the invocation of the Prevention of Corruption Act, whereas others say that this would higher the threshold.

Higher Penalties

The amendment seeks to tighten the noose around both bribe givers and takers. The punishments have been enhanced under the new amendment. The minimum limit is extended to three years with a maximum limit of 7 years. For repeat offenders, this limit has been extended to a minimum of 5 years and a maximum of 7 years. It is to be noted here that for the first time, the Act seeks to punish both the bribe givers and takers. The protection given to bribe givers of freedom from prosecution if they turned witnesses against the bribe takers has been removed. The only protection available to bribe givers is that they do not face prosecution if they are coerced into giving bribes and the matter is reported within a week of such coercion.

Prior Approval Requirement

The amendment has brought great relief to government servants. Now, a prior approval from a competent authority will have to be sought before any case based on corruption can be instituted against them. However, this protection would not apply, if the government servant is caught taking bribes on the spot. Moreover, now the element of undue advantage would have to be established if the accused involved is a public servant.

Timelines

The Amendment further, in order to reduce the inordinate delays plaguing the corruption cases has imposed a timeline within which cases should be disposed of. The lower limit for completion of the trial is 2 years whereas with citing reasons of delay, a trial under the Prevention of Corruption Act may go on for four years.

Liability of Corporates

The senior members of commercial organisations would now be held liable for corporate bribery, if them or their employees are held giving/taking bribes in order to advance the interests of their commercial organisations. This is a novel step and was not present in the original Act. Charitable organisations have been excepted from this provision.

Analysis

The Amendment is a welcome step towards eradicating corruption in the country. However, it has been criticised on several points by several quarters. Let us discuss the loopholes extant in the amendment:

Protection extended to bribe giver for turning witness has been removed

Earlier, the bribe givers would readily render statements during corruption trials as this would afford them protection. However, the removal of this provision and protecting bribe givers only on grounds of coercion might deter the bribe givers from coming forward and becoming witnesses. From a positive standpoint, it may be noted that this would also prevent bribe givers turning witnesses just to escape prosecution. Moreover, the protection based on coerced bribe giving would be the right kind of protection.

The inclusion of intention in criminal misconduct

The definition of criminal misconduct has been redefined. Its scope is now limited to misappropriation of assets and intentional disproportionate possession of assets. By introducing the element of intention, the government has raised the threshold for proving criminal misconduct. This change has been heavily criticised.

Redefining criminal misconduct

The changed definition of criminal misconduct does not include abuse of position of disregard of public interest. The new definition has been criticised for being limited in nature.

Conclusion

The Amendment is a welcome change, especially with regard to the increase in penalties. However, certain changes brought about by the Amendment do not seem to be in tune with its purpose. For instance, restricting the definition of criminal misconduct and increasing the threshold of proof or introducing the requirement of prior approval for trial of government servants would make it difficult to invoke the Prevention of Corruption Act.

Research and inputs by Soumya Shekhar

About the author:

Bhumesh Verma is the Managing Partner of Corp Comm Legal, Advocates and writes regularly on legal and business issues. His two books on Contract Drafting Skills are very popular among students and professionals alike.