The Lok Sabha passed the Prevention of Corruption (Amendment) Bill, 2018 on Tuesday, July 24, 2018. The Bill passed by the Rajya Sabha on July 19, 2018 was originally proposed in the Upper House in 2013, and was referred to a Select Committee which submitted its report in August 2016.
One of the salient features of the Amendment is the Bill’s clause 3, which classifies giving bribes directly or via third parties an offence under the Act. Under the principle act, such acts were merely seen as abetment to taking bribes. The Amendment also widens the Act’s ambit to include “commercial entities” which includes companies, corporations, partnerships and any association of people that does business in India.
Though this provision is line with Article 15 of the United Nations Convention Against Corruption which has been ratified by India, it is opposed to the Second Administrative Reforms Commission, which recommended a distinction to be drawn between coercive and collusive bribe givers. The bill also removes the existing protection for bribe givers during corruption trials.
The pre-amendment Act provided for no prosecutor value being attached to statements made by bribe givers during trials in admittance of giving bribes. This commission may serve as a deterrent from bribe givers from appearing as witnesses in cases against public officials. The Bill provides protection for bribe givers who do report such instances within seven days of their occurrence.
The Bill also redefines the metrics for adjudging criminal misconduct under the Act, by stating them to be fraudulent misappropriation of property under one’s control, and intentional illicit enrichment and possession of disproportionate assets.
These replace the principle Act’s metrics of usage of illicit means, abuse of power and acquisition not in lieu of public interest of “any valuable thing or monetary reward for himself or any other person”. This change allows corrupt public servants to procure assets in the names of other people. Additionally, it raises the threshold of ascertaining the guilt of an accused for illicit enrichment by necessitating that an “intention” needs to be proved as well, making difficult for the prosecution to pin liability.
Though the Bill removes the provision which allowed an accused to be free from the charge of corruption if the bribe was deemed to be “trivial” by the courts, hence widening the Act’s ambit, it deletes the clause that 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.
In addition to increasing the number of public functionaries that could not be prosecuted under the Act without State sanction, the amendment necessitates such sanction for commencement of investigations as well. This provision’s scope extends to retired officials as well. Under the principle Act, inquiries of such nature required no State sanction. Furthermore, the “concerned authority” with the mandate to provide such sanction lies with a Lokpal, which raises ambiguity as the Government is yet to implement the Lokpal and Lokayuktas Act. These provisions have been markedly panned as dilutionary.
It also provides for the attachment and confiscation of the accused’s properties by the Special Courts.