The Prevention of Corruption Act, 1988 was passed to make the anti-corruption laws more efficacious by widening their coverage and strengthening the then-existing provisions. 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.
The Acts related to corruption
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.
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.
Shortcomings and criticism
- Narrow definition: The older law had a broad definition of a corrupt public official, defining it simply as any person who, while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
- The amendments narrow this definition significantly, by adding the test of intention, meaning prosecuting agencies will have to prove a conspiracy to carry out corrupt acts, rather than simply pointing to disproportionate assets or questionable actions.
- The amendments seek to define criminal misconduct more narrowly,by including just two clauses.
- If the public servant dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do or if he intentionally enriches himself illicitly during the period of his office.
- This means that if a public servant cannot account for assets or property disproportionate to their known sources of income, then they are presumed to have intentionally enriched themselves illicitly.
- The changed clauses however, do not account for assets that have been illicitly procured for other people.
- The amendment Bill has not mentioned who the concerned authorityis for providing sanctions for investigating a public official.
- Some existing important provisions in the old law are being dropped. These new terms will take decades for getting their interpretations from the Supreme Court.
- Sections 7, 8, 9 and 10 of the existing Act have been deleted and replaced by completely new provisions, with completely new definitions and words. It may now take decades before the new provisions are properly interpreted and settled by judiciary.
- The provision under Section 13(1)(d) has been deleted. This is the provision which is used for involving senior bureaucrats and ministers in corruption cases, since direct acceptance of bribe by them was generally not possible.
- Further, the maximum punishment for this would now be only 7 years imprisonment as against the existing punishment for 10 years.
- Prior permission of the Government or the competent authority will now be required for registering certain corruption offences. Previously, the provision for taking such permission was quashed and set aside by the Supreme Court in 2014 in a writ petition.
- This permission will give immunity to corrupt Government officers.
- Even sanction for prosecution of corrupt public servantswould now be needed even after their retirement, giving them one more level of immunity or protection.
There should be a comprehensive package to fight against corruption. The government must strengthen existing laws like whistle-blower protection act, lokpal act etc. There should be an equal focus on judicial reform and police reform to create a deterrence.