The Prevention of Corruption Act 1988 a legislation intended to bring about change in governance system to make it corruption free had its own failures on accounts of limitations within the law as well as on account of liberal judicial pronouncements which led to dilution of the intention of legislature. However in 2018 with Prevention of Corruption Amendment Act 2018 the legislature reiterated its resolve to not allow any time of corruption and decided to make the law strong enough to deal with modern day challenges.
IT added “undue advantage” within the purview of the Corruption which included in its folds all non pecuniary or non monetary gratifications, gifts and even the favours not estimable in the terms of money. This is huge shift from the era where corruption used to be only “Money” or “Valuable Thing”.
Amendment also provides for timeline for completion of Trials. The timeline given is only 2 years and in any case it cannot be extended beyond 4 years and that too for 6 months at a time. The Special Judge needs to record the reasons in writing for not being able to complete the Trial in 2 years.
Giver of Bribe i.e. Supply Side of Bribery is now actively covered under the provisions of Prevention of Corruption Act. The person who is Voluntarily a Giver of Bribe is now directly liable for punishment under the Act. However if a person is forced to give a Bribe in that case if the person informs law enforcement agencies within 7 days of the incident then he shall not be liable for offence under the new act.
Concept of Corruption by corporates and liabilities of the persons at the helm of the affairs of such Corporates is also now included in the new Act. Where an offence under section 9 is committed by a commercial organisation, and such offence is proved in the court to have been committed with the consent or connivance of any director, manager, secretary or other officer shall be of the commercial organisation, such director, manager, secretary or other officer shall be guilty of the offence and shall be liable to be proceeded against and shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Prior Sanctions have been liberalised under the new act. Taking of Sanction from the appropriate government for prosecution of serving public official is necessary and no such inquiry or investigation could be conducted without prior sanction of employer government. However no such sanction will be necessary in case the public servant is arrested on spot on the charges of corruption. Sanction for prosecution is to be decided within 3 months and maximum in 4 months for reasons to be recorded in writing by employer government.
Provisions for Punishment has been increased from 6 months to three years and 5 years to Seven Years under the provisions of the punishment in the Act .
Provisions for Attachment and Forfeiture of properties is added. Therefore the properties procured by means of the offence under this act can be attached or confiscated as pre the provisions of the Criminal Law Amendment Ordinance 1944.
Previous Judicial Pronouncement wherein the interpretation of the law of acceptance and Solicitation had diluted the law and had gone to the extent of saying that “demand” is sine qua non for an offence under this Act, are now no longer a good law as the parliament has now aligned the laws to the UN Convention Against Corruption (Resolution No 55/61) and Criminal Law Convention on Corruption (Council of Europe) and now active and passive bribing have been made equally an offence and punishable with strict sentences of imprisonment. Even the provisions have been added to deal strictly with habitual offenders under the new Act.
AND YES after passage of Act 34 of 2019 it is applicable to whole of India including the Union Territories of Jammu and Kashmir with effect from 31.10.2019.
I would be writing in detail on Corruption by Commercial Organisations after some research on the topic and after researching on the international rules and regulations with regards to the same.
-Punit Juneja
Advocate
