The Prevention of Corruption Act. the ratification by India of the UN Convention Against Corruption. the international practice on treatment of the offence of bribery and corruption and judicial pronouncements had necessitated a review of the existing provisions to the Act
The Prevention of Corruption Act. 1988 provided for prevention of corruption and tor matters connected therewith. The ratification by India of the United Nations Convention Against Corruption. the international practice on treatment of the offence of bribery and corruption and judicial pronouncements had necessitated a review of the existing provisions to the Act and the need to amend it so as to till in gaps in description and coverage of the offence of bribery so as to bring it in line with the current international practice and also to meet more effectively, the country’s obligations under the aforesaid Convention. The Government, therefore, brought forward the Amending Bill.
Â
# Section 7 of the Principal Act at present covered the offence of public servant taking gratification other than legal remuneration in respect of an official act. The definition of offence has been substituted by a new comprehensive definition which covers all aspects ot passive bribery. including the solicitation and acceptance of bribe through intermediaries and also acts of public servants acting outside their competence.
# The Principal Act did not contain any provisions directly dealing with active domestic bribery. that is. the offence of giving bribe. Section 12 of the Principal Act which provides for punishment for abetment of offences defined in section 7 or section 11.covers the offence indirectly Section 24 provides that a statement made by a bribe giver in any proceeding against a public servant for an offence under sections 7 to 11. 13 and 15 of the Act shall not subject him to prosecution under section 12 Experience had shown that in a vast majority of cases. the bribe- giver goes scot free by taking resort to the provisions of sect 24 and it becomes increasingly difficult to tackle consensual bribery. The aforesaid Convention enjoins that the promise. offering or giving, to a public official, directly or indirectly, of an undue advantage, for the official himself or hersef or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties be made a criminal offence. Accordingly, a new section 8 to meet the said obligation had been proposed to be inserted.
# As the proposed new definitions of bribery. both as regards the solicitation and acceptance of undue advantage and as regards the promise, offering or giving, to a public official, directly or indirectly. of an undue advantage, are found to be comprehensive enough to cover all offences presently provided in section 8 which covers taking gratification, in order. by corrupt or illegal means to influence public servant; section 9 which covers taking gratification. for exercise of personal influence with public servant section 10 which provides for punishment for abetment by public servant of offences defined in section 8 or section 9: and section 11 which provides for public servant obtaining valuable thing without consideration from person concerned in proceeding or business transaction by such public servant; and also the offences presently defined in clauses (a), (b) and (d) of sub-section (1) of section 13 of the Act which covers criminal misconduct by a public servant. these sections had been proposed to be omitted.
# It had been proposed to substitute 9 to provide punishment for the offence relating to bribing a public servant by a commercial organisation. A commercial organisation would be guilty of this offence if any person associated with it offers, promises or gives a financial or other advantage to a public servant intending to obtain or retain business or some advantage in the conduct of business for the commercial organisation. The proposed section 10 provides for punishment ot persons in charge of a commercial organisation which had been guilty of the offence under the proposed section 9.
# Section 12 provides for punishment of abetment of offences defined in section 7 or section 11, it has been proposed to substitute section 12 of the Act to provide punishment for abetment of all offences under the Act.
# It had also been proposed to substitute sub—section (1) of section 13 with a new sub-section so as to omit the existing clauses (a), (b) and (d) of sub—section (1) as mentioned above; to incorporate the element of intentional enrichment in the existing clause (e) relating to possession of disproportionate assets by a public servant: and to modify the definition of ‘known sources of income’ as contained in Explanation. to mean income received from any lawful source, that is, by doing away with the requirement of intimation in accordance with any law, rules or orders applicable to a public servant.
# Section 14 in Principal Act provided for habitual commission of offences under sections 8, 9 and 12. The Amending Bill proposed to substitute section 14 of the Act to provide punishment for habitual commission of all offences under the Act.>
# The Prevention of Corruption Act, did not specifically provide for the confiscation of bribe and the proceeds of bribery. A Bill, namely, the Prevention of Corruption (Amendment) Bill, 2018, to amend the Prevention of Corruption Act, 1988. providing, inter alia, for insertion of a new Chapter IVA in the Prevention of Corruption Act for the attachment and forfeiture of property of corrupt public servants on the lines of the Criminal Law (Amendment) Ordinance, 1944, was introduced in the Lok Sabha on 19 December 2008 and was passed by the Lok Sabha on 23 December 2008. However, the said Brit lapsed due tc dissolution of the Fourteenth Lox Sabha. lt had accordingly been proposed to insect similar provisions on the lines of the 2008 Bill in the Prevention of Corruption Act.
# The Prevention of Corruption (Amendment) Bill. 2008 had proposed an amendment section 19 of the Act on the lines of section 197 of the Code of Criminal Procedure, 1973 for extending protection of prior sanction of the Government or competent authority after retirement or demittance of office by a public servant so as to provide a safeguard to a public servant from vexatious prosecution for any bona tide omission or commission in the discharge of his official duties. The said Bill having lapsed. this protection was, not available for a person who had ceased to be a public servant. lt had, therefore, been proposed to amend section 19 to provide the said protection to the persons who ceased to be public servants on the lines of the said Bill. Further, in the light of a recent judgment of the Supreme Court, the question of amending section 19 of the Act to lay down clear criteria and procedure for sanction of prosecution, including the stage at which sanction can be sought, timelines within which order had to be passed, was also examined by the Central Government and it had accordingly been proposed to incorporate appropriate provisions in section 19 of the Act.
# It had, therefore, been proposed to amend section 6A of the Delhi Special Police Establishment Act, 1946 contains a protection of prior approval of the Central Government in respect of officers working at policy making levels in the Central Government before any inquiry or investigation is conducted against them by the Delhi Special Police Establishment. The basic principle behind the protection under section 19 of the Prevention of‘ Corruption Act, 7988 and section 6A of the Delhi Special Police Establishment Act 1946. being the same. namely, protection of honest civil servants from harassment oi of investigation or prosecution for things done in bona fide performance of public duty. it was felt that the protection under both these provisions should be available to public servants even after they cease to be public servants or after they cease to hold sensitive policy level positions. as the case may be. Accordingly. it was proposed to amend section 6A of the Delhi Special Police Establishment Act, 1946 for extending the protection of prior approval of the Central Government before conducting any inquiry or investigation in respect of offences under the Prevention of Corruption Act, 1988. to civil servants holding such senior policy level positions after they cease to hold such positions due to reversion or retirement or other reasons.
Debate
The Amending legislation underwent detailed deliberations during debate thereon in both Houses of Parliament.
The Minister-in-charge of the Bill while replying to the debate inter alia summed as follows:
The Minister observed that all the Members had expressed their concerns as to how to curb corruption in the country. This legislation was enacted way back in 1988. Since then 30 years had elapsed and the dimension and style of corruption had also changed in all these years. So, the Government had also decided to change their stand as per the need of the hour to deal with it. The Government would be laying guidelines for the decision to be given within two years. The commercial organisations offering bribes would also be included whereas the charitable institutions are kept outside. Strict measures against corruption had been put in place in the Bill and at the same time Government would also ensure provision of a work friendly environment to a Government officer or public servant so that he can perform to the best of his ability.
The Bill was passed by Paiya Sabha on 19 July 2018 and by Lok Sabha on 24 July 201 8. The Bill as passed by both Houses of Parliament was assented to by the President of India on 26 July 2018.