make it crisp "THE PREVENTION OF CORRUPTION ACT, 1988 –
• Initially, within the Indian Justice System, the Indian Penal Code dealt with the offenses of bribery and corruption in cases of Public Servant. But during the 1945s it came into notice that the then-existing law was not adequate to meet the exigencies and a need was felt to introduce special legislation to eradicate bribery and corruption, it was thus that the Prevention of Corruption Act, 1947 was enacted for the first time.
• The 1947 Act was later amended at two instances by the Criminal Law Amendment Act, 1952 and by the Anti-Corruption Laws (Amendment) Act, 1964 based on the recommendations of the Santhanam Committee.
• The 1947 Act became a pilot to the Prevention of Corruption Act, 1988 which came in force on 9th September 1988. It was aimed at making anti-corruption laws more effective by widening their coverage and by strengthening the provisions to make the overall statute more effective.
OBJECT AND REASONS FOR THE ENACTMENT OF THE PREVENTION OF CORRUPTION ACT, 1988 –
• 1. The bill is intended to make the existing anti-corruption laws more effective by widening their coverage and by strengthening the provisions.
• 2. The Prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abet them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attachment of ill gotten wealth obtained through corrupt means, including from transferees of such wealth. The bill seeks
to incorporate all these provisions with modifications so as to make the provisions more effective in combating corruption among public servants.
• 3. The bill, inter alia, envisages widening the scope of the definition of the expression public servant‘, incorporation of offences under sections 161 to 165A of the Indian Penal Code, enhancement of penalties provided for these offences and incorporation of a provision that the order of the trial court upholding the grant of sanction for prosecution would be final if it has not already been challenged and the trial has commenced. In order to expedite the proceedings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included.
• 4. Since the provisions of section 161A are incorporated in the proposed legislation with an enhanced punishment, it is not necessary to retain those sections in the Indian Penal Code. Consequently, it is proposed to delete those sections with the necessary saving provision
THE SALIENT FEATURES OF THE ACT –
• Some of the salient features of the Act are:
• 1. It incorporates the Prevention of Corruption Act, 1947, the Criminal Law Amendment Act, 1952, and Sec. 161 to 165-A of the Indian Penal Code with certain tweaks in the original provisions.
• 2. It has enlarged the scope of the definition such as Public Duty and Public Servant under the definition clause, Section 2, of the act.
• 3. It has shifted the burden of proof from the prosecution as mentioned in the CrPC to the accused who is charged with the offense.
• 4. The provisions of the Act clearly state that the investigation is to be made by an officer, not below the rank of Deputy Superintendent of Police.
• 5. The 1988 Act enlarged the scope of the term public servant‘ which now includes employees of the central government, union territories, nationalized banks, employees of the University Grants Commission (UGC), vice-chancellors, professors, and the like.
• 6. The Act covers corrupt‘ acts as bribe, misappropriation, obtaining a pecuniary advantage, possessing assets disproportionate to income and the like
THE CONSTITUTIONAL PROVISIONS RELATED TO PREVENTION OF CORRUPTION ACT –
• Statutory and Legal Provisions regarding corruption are also specified under the codified Laws. The Supreme law i.e. The Constitution of India, is also consist the provision of Writ Jurisdiction.
• To control the offences related to money as well as economy, Office of Comptroller and Auditor General (CAG) is constituted, besides these there are certain authorities at Central level and State level such as CVC (Central Vigilance Commission), CPA (Committee on Parliament Account), CBI (Central Bureau of Investigation), ACBS (Anti-Corruption Bureau of State). The Supreme Court is the guardian of the Constitution.
• The Constitution has empowered the Apex Court to safeguard the fundamental rights enshrined in Part III of the Constitution.
• Fundamental Rights are the rights against the mighty powers of the State. The State is defined in Art. 12 of the Constitution.
• Under Art. 32 and 226 of Indian Constitution following ―Writs are provided as well as facility of Public Interest Litigation (PIL) available.
• i. Writ of Habeas Corpus
• ii. Writ of Mandamus
• iii. Writ of Prohibition
• iv. Writ of Certiorari
• v. Writ of Quo-Warranto
• All these writs are having their own impact and power in different fields, and actually these are nothing but ―Powers in Hands of Judiciary to control the Administrative discretion‖. Preamble of the Constitution of India gives guaranty of Justice to the citizens of India.
• Constitution adopted federal government which consist Union Government at Central level and State Government at State level. Crime is in a list of state subject whereas, law and order is in a concurrent list.
• There are number of provisions made under Constitution for eradication of corruption in the society. Art. 311 of the Constitution of India and judicial Reform process aims to eradicate corruption from the society.
THE INVESTIGATING AGENCIES CONSTITUTED FOR IMPLEMENTING ANTI-CORRUPTION POLICIES IN INDIA –
• To eradicate the evil of corruption and for implementing anticorruption policies and raising awareness on corruption issues, the Central Government has enacted Anti-Corruption Laws to deal with the prevention of corruption and constituted commissions namely Central Vigilance Commission, Central Bureau of Investigation, Enforcement Directorate and Anti-Corruption Bureau to enforce the Law of Prevention of Corruption Act. No doubt these anti-corruption agencies are doing best to combat corruption through implementing and enforcing anti-corruption policies adopted by government.
• At the federal level various bodies are constituted.
• Out of which key institutions are the Supreme Court (S.C), the Central Vigilance Commission (CVC) the Central Bureau of Investigation (CBI) the office of the Comptroller and Auditor General (CAG) and the Chief Information Commission (CIC), Enforcement Directorate (ED) and at the State level there are the Anti-corruption Bureau (ACB) for each State.
• Above investigating agencies are specialized bodies to form anti-corruption strategies. Its main function is to enforce the anti-corruption legislature and detect the corruption.
• These agencies have a power to investigate and prosecute corrupt persons who have committed an offence under the provision of anti-corruption laws. In addition to these, anti- corruption
agencies are also responsible for awareness campaign, mobilizing and educating citizens about corruption.
• As per recommendation of Santhanam Committee, Government of India vide resolution dt.11/2/84 establish Central Vigilance Commission (CVC), the Central Bureau of Investigation (CBI), the office of the Comptroller and Auditor General (CAG) and Anti-corruption Bureau (ACB) which are the main nodal investigating agencies for each State.
A) Supreme Court and High Courts:
• Any citizen can file a petition, known as Public Interest Litigation, before the Hon‘ble High Courts and Hon‘ble the Supreme Court, alleging corruption in the public sector. If the Hon‘ble High Courts and the Supreme Court find the allegations credible, they can refer such cases to the Central Bureau of Investigation for further enquiry or investigation. Many big cases of corruption have been successfully investigated by the agency in the past on such references from these courts.
B) Central Vigilance Commission (CVC):
• Central Vigilance Commission is an apex Indian governmental watchdog body created in 1964 to address governmental corruption constituted under the provision of Central Vigilance Commission Act, 2002.
• It has the status of an autonomous body i.e. free from executive control.
• The Central Vigilance Commission set up by the Government of India to advise and guide central government agencies, as well as it also have special power to analysis of complaints of corruption, professional misconduct, misuse of power by administrative bodies.
• The Central Vigilance Commission Act provides for constitution of a Central Vigilance Commission, to inquire or cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act, 1988 by certain categories of public servants of the Central government, corporation established by or under any Central Act, government companies, societies and Local authorities owned or controlled by the Central Government and for matters connected therewith or incidental thereto.
C) Central Bureau of Investigation (CBI):
• The Central Bureau of Investigation is an investigating agency set up by the Government of India to investigate crime, especially corruption cases in Union Territories, which are directly administered by the Government of India. Over a period of time, it has become the premier corruption investigation agency in the country.
• It enjoys high credibility amongst the people of India. As a result even the States also refer sensitive and large-scale corruption cases to the Central Bureau of Investigation for investigation.
• The High Courts of various States and the Supreme Court of the country have powers under the Indian Constitution to entrust investigation of any crime to the Central Bureau of Investigation for investigation
D) Comptroller and Auditor General of India (CAG):
• Comptroller and Auditor General is supreme constitutional audit authority of India.
• Comptroller and Auditor General is the watchdog on each and every financial transaction of Central or State department such as railway, telecom, public sector, organizations etc.
• Every department/ organization is subject to internal audit as well as of statutory audit. Comptroller and Auditor General is one of the institutions to prevent the corruption in government department.
• Art.148 of the Constitution deals with Comptroller and Auditor General. In democratic form every department is accountable to the people. Role of Comptroller and Auditor General in democracy is as prejudiciary.
• Main function of the Comptroller and Auditor General is to see that, money sanction by parliament must be spent only for that purpose for which it is sanction.
E) Anti-Corruption Bureau (ACB):
• These police agencies of the States are meant mainly for investigating corruption cases within the States under the Corruption Act.
• They are responsible for the prevention, detection and investigation of corruption crime only and are not engaged in conducting other police duties such as handling conventional crimes and law and order.
• After investigating a crime, they file the investigation reports in a court of law to launch prosecution.
VARIOUS STATUTES THAT HAVE BEEN ENACTED WITH THE AIM TO CURB CORRUPTION AND WHAT ARE THE KEY FEATURES OF SUCH STATUTES –
• Public servants in India can be penalized for corruption under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. The Benami Transactions (Prohibition) Act, 1988 prohibits benami transactions.
• The Prevention of Money Laundering Act, 2002 penalises public servants for the offence of money laundering. India is also a signatory (not ratified) to the UN Convention against Corruption since 2005.
• The Convention covers a wide range of acts of corruption and also proposes certain preventive policies.
Key Features of the Acts related to Corruption:
• I. Indian Penal Code, 1860:
• The IPC defines ―public servant‖ as a government employee, officers in the military, navy or air force; police, judges, officers of Court of Justice, and any local authority established by a central or state Act.
• Section 169 pertains to a public servant unlawfully buying or bidding for property. The public servant shall be punished with imprisonment of upto two years or with fine or both. If the property is purchased, it shall be confiscated.
• Section 409 pertains to criminal breach of trust by a public servant. The public servant shall be punished with life imprisonment or with imprisonment of upto 10 years and a fine.
• II. The Benami Transactions (Prohibition) Act, 1988:
• The Act prohibits any benami transaction (purchase of property in false name of another person who does not pay for the property) except when a person purchases property in his wife‘s or unmarried daughter‘s name.
• Any person who enters into a benami transaction shall be punishable with imprisonment of upto three years and/or a fine.
• All properties that are held to be benami can be acquired by a prescribed authority and no money shall be paid for such acquisition.
• III.The Prevention of Money Laundering Act, 2002
• The Act states that an offence of money laundering has been committed if a person is a party to any process connected with the proceeds of crime and projects such proceeds as untainted property.
• Proceeds of crime‖ means any property obtained by a person as a result of criminal activity related to certain offences listed in the schedule to the Act. A person can be charged with the offence of money laundering only if he has been charged with committing a scheduled offence.
• The penalty for committing the offence of money laundering is rigorous imprisonment for three to seven years and a fine of upto Rs 5 lakh. If a person is convicted of an offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 the term of imprisonment can extend upto 10 years.
• The Adjudicating Authority, appointed by the central government, shall decide whether any of the property attached or seized is involved in money laundering. An Appellate Tribunal shall hear appeals against the orders of the Adjudicating Authority and any other authority under the Act.
• Every banking company, financial institution and intermediary shall maintain a record of all transactions of a specified nature and value, and verify and maintain records of all its customers, and furnish such information to the specified authorities.
• IV. The Prevention of Corruption Act, 1988:
• In addition to the categories included in the IPC, the definition of ―public servant includes office bearers of cooperative societies receiving financial aid from the government, employees of universities, Public Service Commission and banks.
• If a public servant takes gratification other than his legal remuneration in respect of an official act or to influence public servants is liable to minimum punishment of six months and maximum punishment of five years and fine. The Act also penalizes a public servant for taking gratification
to influence the public by illegal means and for exercising his personal influence with a public servant.
• If a public servant accepts a valuable thing without paying for it or paying inadequately from a person with whom he is involved in a business transaction in his official capacity, he shall be penalized with minimum punishment of six months and maximum punishment of five years and fine.
• It is necessary to obtain prior sanction from the central or state government in order to prosecute a public servant.
THE OFFENCES COVERED UNDER THE PREVENTION OF CORRUPTION ACT, 1988 RELATED TO BRIBING OF A PUBLIC SERVANT –
• Section 7:
• Offence relating to public servant being bribed Any public servant who-
• (a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
• (b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
• (c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
• Explanation 1-- For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Explanation 2-- For the purpose of this section—
• (i) the expressions “obtains” or “accepts” or “attempts to obtain” shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
• (ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party
• It was observed by the Supreme Court in Subash Parbat Sonvane v. State of Gujarat, (2002) 5 SCC 86, that words like ―accepts and ―obtains has been especially used by the legislature in Sections 7 and 13(1)(a) and (b) of the Act but in Section 13(1)(d) there is withdraw of the word ―accepts and put importance on the word ―obtains.
• It has cited its prior decision of Ram Krishna v. State of Delhi, AIR 1956 SC 476, where it observed that: “We have primarily to look at the language employed and give effect to it.
• The word “obtains” on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver.
• One may accept money that is offered, or solicit payment of a bribe, or extort the bribe by threat or coercion; in each case, he obtains a pecuniary advantage, by abusing his position as a public servant.
• It is enough, if by abusing his position as a public servant, a man obtains for himself any pecuniary advantage entirely, irrespective of motive or reward for showing favour or disfavor”.
• In P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152, it has been settled by the Supreme Court that to convict the accused it is necessary to have adequate proof of demand and acceptance of illegal gratification by the public servants U/s 7 and 13 of the Prevention of Corruption Act, 1988.
• It also laid down that without the proof of demand by the accused, mere possession and recovery of currency notes would not establish the offence U/s 7 and 13(1)(d)(i) and (ii) of the Act.
• The Supreme Court has made the below-mentioned observations
• ―The proof of demand for illegal gratification, thus, is the gravamen, of the offence U/s 7 and 13(1)(d)(i) and (ii) of the Act and in the absence thereof, unmistakably, the charge, therefore, would fail. Mere acceptance of any amount, allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under the two sections of the Act”.
• Section 8:
• Offence relating to bribing of a public servant (1) Any person who gives or promises to give an undue advantage to another person or persons, with intention—
• (i) to induce a public servant to perform improperly a public duty; or
• (ii) to reward such public servant for the improper performance of public duty; shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both: Provided that the provisions of this section shall not apply where a person is compelled to give such undue advantage: Provided further that the person so compelled shall report the matter to the law enforcement authority or investigating agency within a period of seven days from the date of giving such undue advantage: Provided also that when the offence under this section has been committed by commercial organization, such commercial organisation shall be punishable with fine.
• Explanation.-- It shall be immaterial whether the person to whom an undue advantage is given or promised to be given is the same person as the person who is to perform, or has performed, the public duty concerned, and, it shall also be immaterial whether such undue advantage is given or promised to be given by the person directly or through a third party.
• (2) Nothing in sub-section (1) shall apply to a person, if that person, after informing a law enforcement authority or investigating agency, gives or promises to give any undue advantage to another person in order to assist such law enforcement authority or investigating agency in its investigation of the offence alleged against the later. In Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1, the Supreme Court held that ―Gratification is not restricted to pecuniary gratification. It has been further held that the opening word of Sections 8 and 9 is ―whoever.
• The expression is very wide and would also cover public servants accepting gratification as a motive or reward for inducing any other public servant by corrupt or illegal means.
• Restricting the operation of the expression by curtailing the ambit of Sections 8 and 9 and confining to private persons would not reflect the actual legislative intention.
A.R. ANTULAY’S CASE –
• In the case of R. S. Nayak vs. A. R. Antulay, 1984 AIR 684, the appellant filed a complaint approved by the sanction of the Governor, against the then Chief Minister of Maharashtra( respondent ). The complaints alleged the respondent to be guilty of misallocation of public funds and corruption.
• However, the respondent resigned on the same date and continued to serve as an MLA. The respondent contended that a sanction as provided under Section 6 of the PCA, 1947 is necessary to proceed against a public servant.
• The two main issues raised in front of the Court were:
• Whether an MLA can be called a public servant as under Section 21, IPC?
• Whether sanction as provided under Section 6 of the 1947 Act, a necessary requisite to proceed against MLA?
• The Supreme Court, by looking at the historical evolution of Section 21 and closely examining the contextual definition of a “public servant”, concluded that an MLA cannot be construed as a public servant. The Court further held that upon resignation from the post of CM, the respondent ceased to be a public servant. The provisions of Section 6 of the 1947 Act cannot be attracted as when the offence was committed, the respondent was a public servant but when the Court was called to take the notice of it, he resigned. The case became a landmark as it was for the first time that an ex-CM was prosecuted on the basis of a private complaint.
SOME OF THE PROBLEMS AND CHALLENGES FACED WHILE TACKLING THE MENACE OF CORRUPTION –
• Despite adequate laws to fight corruption in the public sector, it is still one of the biggest menaces Indian society must deal with. The Indian criminal justice system has been facing many problems and challenges in its fight against corruption, some of which are highlighted below.
A) No Law to tackle Corruption in the Private Sector:
• The Prevention of Corruption Act 1988 is the existing law in India dealing with offences relating to corruption.
• This law, however, was essentially enacted to take care of corruption cases in the public sector and by public servants, whereas in fact, there is widespread corruption in the private sector also which seriously hampers the overall growth and development of the country.
• After the liberalization of the Indian economy in the early 1990s, the private sector has expanded greatly.
• The problem of corruption in the private sector is increasing with the expansion of the private sector.
• Today it has assumed alarming proportions. It has become the single biggest menace to Indian society. Efforts are underway to enact laws to deal with corruption in the private sector as envisaged in the UNCAC.
B) Inherent Delays in the Criminal Justice System:
• The system is painfully slow and punishments are not swift. As explained earlier, sec. 19 of the Corruption Act requires prior permission of the authority competent to remove a public servant from his or her post before launching prosecution against him or her in court.
• This often delays the launch of a prosecution. Upon receiving reports from the investigating agencies seeking approval for a prosecution, the 18 concerned authorities often take considerable time to grant such permission. Also, permission is sometimes denied on political and other grounds.
• The Corruption Act provides for trial of corruption cases under the act exclusively by the Special Judges.
• The number of Special Judges is highly insufficient compared to the number of corruption cases filed in their courts.
• As a result, these courts are overburdened and there is a large discrepancy in the number of cases disposed by the investigating agencies and the number of cases disposed by the courts, adding to the backlog each year.
• During trial of offences, adjournments are often taken or granted on various grounds. Further, the proceedings in the trial court are challenged at various stages by parties filing petitions in the same court as well as in higher courts. Appeals and revisions filed in higher courts against the order of the trial court often take years to be concluded.
C) Hostile Witnesses:
• In order to convict a corrupt public servant, the prosecution has to prove its case beyond doubt.
• This is a strict legal requirement as per the Indian Evidence Act, the general law on evidence in India.
• There is no exception to this requirement even for corruption cases.
• Prosecution has to depend heavily on the testimony of witnesses to prove its case beyond doubt.
• However, witnesses often do not support the prosecution case because of influence, allurement and intimidation from the other side.
• There is no witness protection scheme, nor are there provisions for quick and effective action against witnesses who become hostile. As a result, witnesses frequently become unco-operative and spoil the prosecution case.
• Punishments are, therefore, not swift and effective under the Corruption Act and don‘t deter corrupt public servants.
D) Ineffective Asset Recovery:
• Though there are legal provisions for confiscation and recovery of property acquired as proceeds of crime, such recovery is not easy.
• Corrupt public servants often acquire properties with the proceeds of crime in the names of their friends, relatives, family members and other acquaintances.
• Therefore, it is not easy to prove in court that such properties are the proceeds of crime.
• Such properties are quite often held offshore under strict privacy laws and it is not easy to trace and recover them, especially in the absence of desired international co-operation."