Monday, 3 August 2020

Statement of Objects and Reasons of Prevention of Corruption Amendment Act 16 of 2018.

The Prevention of Corruption Act, 1988, provides for prevention of corruption and for 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 have necessitated a review of the existing provisions of the Act and the need to amend it so as to fill 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. Hence, the present Bill.
2. The salient features of the Bill, inter alia, are as follows—
(a) Section 7 of the Act at present covers the offence of public servant taking gratification other than legal remuneration in respect of an official act. The definition of offence is proposed to be substituted by a new comprehensive definition which covers all aspects of passive bribery, including the solicitation and acceptance of bribe through intermediaries and also acts of public servants acting outside their competence;

(b) the Act at present does not contain any provisions directly dealing with active domestic bribery, that is, the offence of giving bribe. Section 12 of the 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 has shown that in a vast majority of cases, the bribe-giver goes scot free by taking resort to the provisions of Section 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 herself 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, it is proposed to substitute a new Section 8 to meet the said obligation;
(c) 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 transacted 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, it is proposed to omit the said sections;
(d) it is proposed to substitute Section 9 to provide punishment for the offence relating to bribing a public servant by a commercial organisation. A commercial organisation will 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 of persons in charge of a commercial organisation which has been guilty of the offence under the proposed Section 9;
(e) Section 12 at present provides for punishment for abetment of offences defined in Section 7 or Section 11. It is proposed to substitute Section 12 of the Act to provide punishment for abetment of all offences under the Act;
(f) it is 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;
(g) Section 14 at present provides for habitual commission of offences under Sections 8, 9 and 12. It is proposed to substitute Section 14 of the Act to provide punishment for habitual commission of all offences under the Act;
(h) the Prevention of Corruption Act, at present, does not specifically provide for the confiscation of bribe and the proceeds of bribery. A Bill, namely, the Prevention of Corruption (Amendment) Bill, 2008, to amend the Prevention of Corruption Act, 1988, providing, inter alia, for insertion of a new Chapter IV-A 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 19th December, 2008 and was passed by the Lok Sabha on 23rd December, 2008. However, the said Bill lapsed due to dissolution of the Fourteenth Lok Sabha. It is proposed to insert similar provisions on the lines of the 2008 Bill in the Prevention of Corruption Act;
(i) the Prevention of Corruption (Amendment) Bill, 2008 had proposed an amendment to 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 prosectuion for any bona fide omission or commission in the discharge of his official duties. The said Bill having lapsed, this protection is, at present, not available for a person who has ceased to be a public servant. Section 19 is, therefore, proposed to be amended 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 has to be passed, was also examined by the Central Government and it is proposed to incorporate appropriate provisions in Section 19 of the Act;
(j) Section 6-A 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, 1988 and Section 6-A of the Delhi Special Police Establishment Act, 1946, being the same, namely, protection of honest civil servants from harassment by way of investigation or prosecution for things done in bona fide performance of public duty, it is 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 is proposed to amend Section 6-A 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 even after they cease to hold such positions due to reversion or retirement or other reasons.
3. The Bill seeks to achieve the above objectives.
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