E-Gyan Shala

The Prevention of Corruption (Amendment) Bill, 2013 and proposed 2015 amendments

Highlights of the Bill

1.      The Prevention of Corruption (Amendment) Bill, 2013 amends the Prevention of Corruption Act, 1988. Certain amendments to the Bill were circulated by the government in 2015.

2.       The 1988 Act defines taking a bribe by a public servant as accepting any reward other than a salary for performing one’s official act. The 2015 amendments replace this to cover acts where a public servant

accepts any undue advantage other than legal remuneration. Anyone who performs his public function honestly    would not be penalised.

3.      Under the Act, a bribe giver is charged with abetment. The 2013 Bill makes giving a bribe to a public servant a direct offence. The 2015 amendments add that if a person gives a bribe to assist law enforcement authorities, he will not be punished.

4.      The Act defines criminal misconduct to covers six types of offences including: (i) abuse of position; (ii) use of illegal means; (iii) disregard to public interest. The 2013 Bill retains only two offences: (i)

misappropriating property; and (ii) amassing disproportionate assets.

5.      Under the 2015 amendments, prior sanction from the Lokpal or Lokayukta must be obtained before investigating a public servant. Key Issues and Analysis

6.      A public servant will not be charged with taking a bribe if he proves that he did not ‘perform his public functions dishonestly’. As this term has not been defined, the circumstances under which a public servant’s actions would qualify as ‘honest’ is unclear.

7.      The 2013 Bill makes giving a bribe a direct 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.

8.      The requirement of prior sanction for investigation may be considered necessary to protect a public servant from harassment. However, it could delay investigation into genuine cases of corruption. The Supreme Court had also observed that such a provision could affect the efficiency of the investigation process.

9.      The Lokpal, and Lokayuktas in some states, have not been constituted. This may affect the obtaining of prior sanction for investigation.

Key changes proposed in the Bill compared with provisions of the Act:

Key Features	Prevention of Corruption Act, 1988	Prevention of Corruption (Amendment) Bill, 2013 [as modified by the 2015 amendments]
Definition of a ‘bribe’	§ Any reward other than a salary.	§ Undue advantage which is any gratification other than legal remuneration.
Acts that qualify as taking a bribe by a public servant	Covers any of the following acts: § Accepting or attempting to obtain any reward, other than a salary.  § Accepting a reward to favour or disfavour anyone.  § Accepting a reward from another person to exercise personal influence over a public servant.	Covers any of the following acts:  § Attempting to obtain or obtaining, or accepting an undue advantage;  § Attempting to obtain or obtaining, or accepting an undue advantage, i) with the intention of, or ii) as a reward for, or iii) before or after, the improper performance of a public function.
Exceptions to taking a bribe	§ No provision.	§ If a person does not perform a public function dishonestly, it would not qualify as taking a bribe
Giving a bribe to a public servant	§ No specific provision.  § Covered under the provision of abetment.  § If a bribe giver makes a statement in court that he gave a bribe it would not be used to prosecute him for the offence of abetment.	§ Offering or giving an undue advantage to another person, intending to: i) induce, or ii) reward, the public official to perform his public duty improperly; or  § Offering an undue advantage to a public official, knowing that such acceptance would qualify as performing his public duty improperly;  § A person would not have committed the offence of bribe giving if he did so, after informing a law enforcement authority, to assist in its investigation of a public servant.
Giving a bribe by a commercial organisation to a public servant	§ No specific provision.   § Covered under the provision of abetment.	§ Offering a reward for obtaining or retaining any advantage in business. § Central government to prescribe guidelines for adequate procedures for commercial organisations to prevent bribing of public servants.  § If a commercial organisation is held guilty of giving a bribe, and it is proved that it was committed with the consent of the director, manager, secretary etc., they will be punished.
Abetment	§ Covers a public servant abetting an offence related to influencing another public servant.  § Covers any person abetting offences like: i) taking a bribe and ii) obtaining a valuable thing from a person engaged with in a business transaction	§ Covers abetment by any person for all offences;  § Excludes the offence of attempting to misappropriate property (covered under criminal misconduct).
Criminal Misconduct by a public servant	Covers 6 types of offences:  § Fraudulent misappropriation of property in the control of a public servant.  § Possession of monetary resources or property disproportionate to known sources of income.  § Habitually taking a bribe or valuable thing for free.  § Obtaining a valuable thing or reward illegally.  § Abuse of position to obtain a valuable thing or monetary reward.  § Obtaining valuable thing or monetary reward without public interest..	Covers 2 types of offences:  § Fraudulent misappropriation of property entrusted to a public servant.  § Intentional enrichment by illicit means during the period of office. This would involve amassing resources disproportionate to one’s known sources of income. [It shall be presumed that the person intentionally enriched himself.]
Habitual Offender	§ Habitually taking a reward to either influence a public servant or abet in the taking of a bribe.	§ The committing of any offence under the Act by a person who has previously been convicted.
Presumption of guilt Trivial rewards	§ The guilt of the accused would be presumed for the following 3 offences: i) taking a bribe, ii) being a habitual offender and iii) for abetting an offence.  § Such a presumption of guilt would not apply if the reward obtained is considered ‘trivial’ by the court.	§ The guilt of the accused would be presumed only for the offence of taking a bribe.  § The provision related to trivial rewards has been omitted.
Attachment and forfeiture of property	§ Not provided in the Act.	§ The provisions of the Criminal Law Amendment Ordinance, 1944 would apply.  § In place of a District Judge (as in the Ordinance), cases will be referred to a Special Judge.
Prior approval for investigation	§ Not provided in the Act	Before a police officer conducts any investigation into an offence alleged to have been committed by a public servant, prior approval of Lokpal/lokayukta to be taken.  § Such approval would not be necessary in certain cases which involves the arrest of a person on the spot on the charge of taking a bribe, either for himself or another.
Prior sanction for prosecution	The prior sanction from the appropriate authority is required for prosecution of public servants.	§ Extends the requirement of prior sanction to former public servants, for any act committed in office.
Time period for trial of cases	§ No time period mentioned.	Trial by special judge to be completed within 2 years.  § If not, reasons for the delay must be recorded, for every six months of extension of time obtained.  § Total period for completion of trial not to exceed 4 years.
Penalties*:  § Habitual offender  § Criminal Misconduct  § Taking/giving a bribe, abetment	§ Imprisonment of five years-10 years and a fine.  § Imprisonment of four years-10 years and a fine.  § Imprisonment of three years-seven years and a fine.	§ Same as the 1988 Act, for all offences.

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