Why in News?
Parliament has passed the Prevention of Corruption (Amendment) Act, 2018, which amends the archaic Prevention of Corruption Act, 1988.
Brief background
• Currently, offences related to corrupt practices of public officials are regulated by the Prevention of Corruption Act, 1988. • In 2007, Second Administrative Reforms Commission (2nd ARC) in its fourth report 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. • In 2011, India ratified the United Nations Convention against Corruption, and agreed to bring its domestic laws in line with the Convention that 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.
Prevention of Corruption Act 1988
• The act extends to whole of India except Jammu and Kashmir.
• Under this Act special judges were to be appointed by the Central and State Government under the Code of Criminal Procedure, 1973.
• The act shifted the burden of proof from prosecution to the accused.
• The ‘public servant’ as per the definition includes any person in service of a government and in the pay of the government, or its department, its companies or any undertaking or control of the government.
• Misappropriation, abusing official position, obtaining a pecuniary advantage etc. are being taken as offences under this act
• MPs and MLAs have been kept out of this act.
• If the offences against the public servant have been proved, it is punishable with imprisonment of not less than six months which may extend upto five years.
Benefits of the amendments
• Potential to reduce the rising cases of corruption and frauds: India’s rank in the Corruption Perception Index, 2017 fell to 81 (out of 180 countries) signifying the rise in such cases. Strict implementation of the act can deter public functionaries to indulge in corrupt practices.
• Safeguards to honest officers: it would encourage public sector officials to carry out their duties fearlessly and on merit, while doing away paralysis in decision making.
• Ensure speedy trial in corruption cases: time bound trial of such cases would do away with long pendency of corruption related cases.
• Inclusion of bribe giver: The act also includes bribe giver which will act as a deterrent for promoting corruption and luring with cash or kind. In the past, the bribe giver had enjoyed immunity and that helped perpetuate corruption.
Concerns regarding the amended act
• Partially addresses the issue of ‘coerced bribe givers’: though it gives them seven days to report the matter, it ignores the situation where they might feel threatened to even approach law enforcement agencies.
• Deters bribe giver from appearing as witness in court: as the provision which protected a bribe giver from prosecution for any statement made by him during a corruption trial is removed in the act, it would create deterrence among bribe givers to appear as witness.
• Increases the threshold to establish the possession of disproportionate assets: while redefining criminal misconduct, it now also requires proving the ‘intention’ to acquire disproportionate assets in addition to possession of such assets.
• Burden of proof on accused only for taking a bribe: Under the 1988 Act, the burden of proof was on the accused for offences like taking a bribe, habitual offender and abetment. However, the amendment puts the burden of proof on accused person only for the offence of taking a bribe.
• Certain provisions of the UN Convention against Corruption have not been included: Provisions such as in case of bribery of foreign public officials, bribery in private sector and compensation for damage didn’t find any place in the amended act.
• Diluted the provisions of earlier act: By including the provision of prior sanction even before the investigation stage it could considerably dilute the act and could result in undue delays in genuine cases of corruption. This further strengthens the need of prior sanctions despite the Supreme Court quashing Section 6A of Delhi Special Police Establishment act, 1946 which required similar approval from the Government.
• Vague terms such as ’lawful sources of income’ remains undefined which creates the misconception that as long as tax has been paid on income received from an undisclosed and illegitimate source, such income becomes lawful.
• Despite the good intentions behind the Amendments, it should be ensured that the act is implemented in letter and spirit. The CVC must issue clear guidelines regarding sanctioning procedure so as to maintain the sanctity of the provision and inert from political influence. There is also a need to complement the amendment with holistic reforms such as electoral reforms, decriminalization of politics, de-politicization of civil services, police reforms, appointments of judges, members of CBI and Lokpal should be appointed on a priority basis etc
