Ethical Perspective on The Prevention of Corruption (Amendment) Bill, 2013

 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. The Standing Committee examining the Bill submitted its report in February 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.

KEY ISSUES AND ANALYSIS

The inclusion of giving a bribe as a specific offence under the Bill

Bribe giving under all circumstances to be criminalised

Under the principal Act, a bribe giver may be penalised for abetting in the offence of taking a bribe. Under the
Bill, giving a bribe, directly or through a third party, is made an offence.

Several experts have examined the issue of whether bribe giving under all circumstances should be made an offence under the principal Act. The UN Convention states that giving a bribe, either directly or indirectly, should be made a punishable offence.7 India has ratified this Convention.5

The report of the Second Administrative Reforms Commission has recommended that the Prevention of Corruption Act must distinguish between coercive and collusive bribe givers. The Standing Committee examining the Bill has observed that individuals who report the matter to the state after the payment of a bribe in normal circumstances may be distinguished from those who a pay a bribe in compelling emergent situations. While in the former case no protection is necessary, in the latter situation the court may take a decision based on facts and circumstances of the case. An argument has also been made that giving immunity to a „harassed bribe giver? would incentivise him to report the incident.

Protection for bribe givers appearing as witnesses removed

Under the principal Act, during a corruption trial, if a person makes a statement that he gave a bribe it would not be used to prosecute him for the offence of abetment. The Bill omits this provision. This may deter bribe givers from appearing as witnesses in cases against public officials.

Certain offences in the Act that have been modified by the Bill

Establishing of intention for possession of disproportionate assets

Under the principal Act, the offence of possessing disproportionate assets would require establishing the existence of disproportionate monetary resources or property in the public servant?s possession.

The Bill modifies this provision. To establish that the public servant had disproportionate assets, two things would have to be proven: i) the possession of monetary resources or property disproportionate to his known sources of income, and ii) the intention of the public servant to enrich himself illicitly. Thus, by requiring that, in addition to the existence of disproportionate assets, the intention of the public servant to acquire disproportionate assets also be established, the Bill is raising the threshold for proving the offence.

The Standing Committee has observed that the inability of the public servant to reasonably explain the source of the disproportionate assets should be sufficient for prosecution. The Committee has recommended that the element of „intention? be removed from the Bill.6

Certain offences related to criminal misconduct not addressed

Under the principal Act, criminal misconduct by a public servant includes: i) using illegal means to obtain any valuable thing or monetary reward for himself or any other person; ii) abusing his position as a public servant to obtain a valuable thing or monetary reward for himself or any other person; and iii) obtaining a valuable thing or monetary reward without public interest, for any person.

The Bill redefines criminal misconduct by a public servant to only include: i) fraudulent misappropriation of property under one?s control, and ii) intentional illicit enrichment and possession of disproportionate assets. In doing so, the Bill no longer covers the three circumstances provided for in the principal Act.

The burden of proof on accused person only for taking a bribe

The principal Act contains a provision that transfers the burden of proof on the person facing trial for offences related to: i) taking a bribe, ii) being a habitual offender and iii) for abetting an offence. It states that if it is proved that the person has accepted or given any reward, it shall be presumed that such reward was a bribe. Under the principal Act, giving a bribe is penalised under the offence of abetment.

The Bill amends this provision. Under the Bill, the burden of proof is transferred to the accused person only for the offence of taking a bribe. In this case, he would have to establish that the reward that he obtained was not a bribe. But for offences related to: i) being a habitual offender, ii) abetment, and iii) giving a bribe, it will not be presumed that he committed the offences, but would require the prosecution to establish the same.

Trivial rewards not exempt

Under the principal Act, if the reward obtained by the public servant is considered as „trivial? by the court, then it
shall not be presumed as an act of corruption. The Bill deletes the provision related to a „trivial? reward.

Obtaining a valuable thing from a person related to business dealings not covered

The principal Act penalises a public servant who accepts or obtains a valuable thing for little or no cost, from a person whom he is engaged in business transaction with or knows officially. The Bill has deleted this provision
Recommendations of the Standing Committee

The Standing Committee examining the Bill has made some recommendations: 

• The provision that includes the requirement of proving intention of public servant, in a disproportionate assets case against him must be removed. The inability of the public servant to explain the source of his disproportionate assets should be sufficient for prosecution.

• The minimum punishment for habitual offenders must be enhanced from three to five years extendable to 10 years. This would ensure parity with the Lokpal and Lokayuktas Act, 2013. The time line for trial of corruption cases should be prescribed as provided for in Lokpal and Lokayuktas referred cases.

• There is a differentiation in punishment to commercial entities (fine only) and persons associated with the entities (three to seven years imprisonment, extendable to 10 years). The punishment prescribed for commercial organisations should be in addition to that prescribed to individuals in charge of the organisation.

• The definitions of „corruption? and „corrupt practices? must be included in the Bill. Further, the definition of
„public servant? should include retired officials, in line with a provision that extends protection of sanction
for prosecution to retired public servants.

• The government must formulate rules and regulations to ensure that chances of coercive bribery are reduced.
Laws like the Right of Citizens for Time bound Delivery of Goods and Services Bill, 2011 and The Whistle Blowers Protection Bill, 2011 should be enacted. This would address concerns of persons forced to give bribes to access services from the state, and encourage them to report acts of corruption respectively. [The Whistleblowers Protection Bill, 2011 has been enacted.]

By: Mona Kaushal