Legislative Brief Essays - Prevention Of Corruption Act, Bribery

Legislative Brief Essays - Prevention Of Corruption Act, Bribery Legislative Brief The Prevention of Corruption (Amendment) Bill, 2013 The Prevention of Corruption (Amendment) Bill, 2013 was introduced in the Rajya Sabha on August 19, 2013. It was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice on August 23, 2013. The Committee submitted its Report on February 6, 2014. Recent Briefs: The Real Estate (Regulation and Development) Bill, 2013 June 10, 2014 The Civil Aviation Authority of India Bill, 2013 March 29, 2014 Prianka Rao [emailprotected] July 23, 2014 Highlights of the Bill The Prevention of Corruption (Amendment) Bill, 2013 amends the Prevention of Corruption Act, 1988. The Act covers the offence of giving a bribe to a public servant under abetment. The Bill makes specific provisions related to giving a bribe to a public servant, and giving a bribe by a commercial organisation. The Bill redefines criminal misconduct to only cover misappropriation of property and possession of disproportionate assets. The Bill modifies the definitions and penalties for offences related to taking a bribe, being a habitual offender and abetting an offence. Powers and procedures for the attachment and forfeiture of property of public servants accused of corruption have been introduced in the Bill. The Act requires prior sanction to prosecute serving public officials. The Bill extends this protection to former officials. Key Issues and Analysis The Bill makes giving a bribe a specific offence. There are diverging views on whether bribe giving under all circumstances must be penalised. Some have argued that a coerced bribe giver must be distinguished from a collusive bribe giver. The Bill has deleted the provision that protects a bribe giver from prosecution, for any statement made by him during a corruption trial. This may deter bribe givers from appearing as witnesses in court. The Bill has replaced the definition of criminal misconduct. It now requires that the intention to acquire assets disproportionate to income also be proved, in addition to possession of such assets. Thus, the threshold to establish the offence of possession of disproportionate assets has been increased by the Bill. By redefining the offence of criminal misconduct, the Bill does not cover circumstances where the public official: (i) uses illegal means, (ii) abuses his position, or (iii) disregards public interest and obtains a valuable thing or reward for himself or another person. Under the Act, the guilt of the person is presumed for the offences of taking a bribe, being a habitual offender or abetting an offence. The Bill amends this provision to only cover the offence of taking a bribe. PRS Legislative Research Institute for Policy Research Studies 3rd Floor, Gandharva Mahavidyalaya 212, Deen Dayal Upadhyaya Marg New Delhi 110002 Tel: (011) 43434035-36, 23234801-02 www.prsindia.org The Prevention of Corruption (Amendment) Bill, 2013PRS Legislative Research PART A: HIGHLIGHTS OF THE BILL1 Context Currently, offences related to corrupt practices of public officials are regulated by the Prevention of Corruption Act, 1988. The Prevention of Corruption Act, 1988 covers taking a bribe, criminal misconduct and mandates prior government sanction to prosecute a public official. In 2008, an amendment Bill was introduced which included provisions related to extending prior sanction for prosecution to former public officials, and the attachment of property of corrupt public officials. However, that Bill lapsed.2 In 1999, the Law Commission of India recommended that a separate Bill related to forfeiture of property of corrupt public officials be introduced.3 In 2007, the report of the Second Administrative Reforms Commission recommended that the Act be amended to include bribe giving as an offence, limit prior sanction for prosecution to certain cases, and provide for the attachment of property of public officials accused of corruption.4 In 2011, India ratified the United Nations Convention against Corruption, and agreed to bring its domestic laws in line with the Convention. The UN Convention covers giving and taking a bribe, illicit enrichment and possession of disproportionate assets by a public servant as offences, addresses bribery of foreign public officials, and bribery in the private sector.5 The Prevention of Corruption (Amendment) Bill, 2013 was introduced in Parliament in August 2013. The Bill amends the Prevention of Corruption Act, 1988. The Bill provides for the offence of giving a bribe by individuals and organisations, extends the requirement of prior sanction for prosecution to former public officials and covers attachment and forfeiture of property.