After more than 70 years of Independence the issue of corruption still looms large in our daily lives. Be it some basic services like making passport to getting the birth certificate, at all these places we have to pay some amount to get our work done. Either pay some amount to get things done or keep running from table to table. Digitalization of some government services has eased the condition to some extent but still a long way to go.
To address these conditions, Prevention of Corruption Act, 1988 was brought. It extends to the whole of India except the State of Jammu and Kashmir and it applied also to all citizens of India & outside India.
With the ambition that it will prevent and address the issue of corruption in Government departments and to punish those Public servants who were involved in some corrupt practices, Prevention of Corruption Act, 1988 was brought but it saw only limited success.
So an amendment to this Act was enacted on July 26, 2018, to bring the Prevention of Corruption Act in line with United Nations Convention against Corruption 2005, which was ratified by India in 2011.
When it is notified by the Centre, the amended law will come into force.
Table of Contents
HIghlights of Amendment
If a person through his own will gives or promises some undue advantage in return of services to a public servant is liable to get punished with some fine or 7 years in jail, or both. But if he is forced by that public servant for that undue advantage in return of services and if that person reports about it in seven(7) days of doing so, to concerned authority then that person won’t get the punishment.
What will happen in the Trial
During a corruption Trial, only giving statement that he gave the undue advantage to the public servant, won’t be enough to prosecute him for the misdeed of doing some work in return of some aid. The Amendment Act omitted this provision. So now the situation arises on the bribe givers to testify against the corrupt, who later can be threatened or discouraged to appear as witnesses in a trial against public servants.
What does it mean by “Undue Advantage”.
Here undue advantage” means any gratification whatever, other than legal remuneration.
Further, “gratification” is not limited to pecuniary gratifications or to gratifications estimable in money.
Simplifying the above statements “gratification is not limited to pecuniary gratifications”, it means that even some non-monetary considerations such as gifts and favours not estimable in money, a better posting, post-retirement benefits can also be covered under the ambit of undue advantage.
So, any public servant who accepts or attempts to accept from any person, any ‘undue advantage’, either for himself or for any other person, in lieu of performance of a public duty, shall be punishable with imprisonment for a minimum term of 3 (three) years and maximum of 7 (seven) years.
What if Some Commercial Organization bribes
Lets define Commerical Organization first:
By commercial organization here it means—
(i) a body which is incorporated in India and which carries on a business, whether in India or outside India;
(ii) any other body which is incorporated outside India and which carries on a business, or part of a business, in any part of India;
(iii) a partnership firm or any association of persons formed in India and which carries on a business whether in India or outside India; or
(iv) any other partnership or association of persons which is formed outside India and which carries on a business, or part of a business, in any part of India;
(a) “business” includes a trade or profession or providing service;
(b) a person is said to be associated with the commercial organisation, if, such person performs services for or on behalf of the commercial organisation irrespective of any promise to give or giving of any undue advantage.
Now, if a commercial organisation commits any of the offences listed out in the PC Act with the intention to obtain or retain business or obtain or retain an advantage in the conduct of its business, then such commercial organisation shall be punishable with fine, quantum of which is not prescribed in the Amendment Act.
ATTACHMENT AND FORFEITURE OF PROPERTY
The Amendment Act has provided for application of the Prevention of Money Laundering Act 2002 and Criminal Law Amendment Ordinance 1944 for attachment and administration of property procured by means of an offence under the Prevention of Corruption Act.
CHANGES IN AMENDMENT THAT’S GIVING MIXED REACTIONS
Earlier, prior approval/permisssion needed from the government to take action by anti-corruption agencies for only higher ranked government servants like from the rank of joint Secretary and above, before the Supreme Court has struck down the requirement of taking the approval of the Central Vigilance Commission before initiating even an inquiry into complaints of corruption against senior level civil servants.
But latest amendment has extended this protection to all Public servants. In the new directive that requires previous approval at the preliminary inquiry stage as well as before the registration of a regular case.
Now given the size of India’s bureaucracy and Established culture of dishonest practices, what if the sanctioning authority is itself dishonest. This recent change left the inquiring agency almost toothless. Also, criminal misconduct on the part of a public servant now requires more rigorous proof.
Amended law would protect honest officers which is a welcome move but on the other side of it many dishonest ones would take the advantage of it and will slip through the loopholes.
Time bound Judgement
In the New Amendment, a special judge will be there for the completion of trial within a period of two years, extendable to four years in aggregate. Now this fast trial of cases is a good step but what if the trial is not concluded in those four years then. Its not provided in the amended law.
Welcome move in the Amendment
Also, a welcome move is the amended law bars the prosecution of retired public servants without the sanction for prosecution, to be accorded by the competent authority. This will check the frivolous allegations which is a welcome move in the amendment
CONclusion
Amendment act brought many changes which include provisions relating to commercial organizations and persons who give an undue advantage. But created some obstacles too in investigation & prosecution.
Prior approval will act as a shield to both honest and dishonest and the dishonest will take the advantage of it. But it will help those civil servants who in the past complained that they had been wronged for discharging their lawful duties. So a balance is needed.