0707 Module 02 Prevention of corruption Act 1988
भ्रष्टाचार प्रतिबंधक कायदा 1988
Prevention
of Corruption Act, 1988
November 24, 2022
The article is written by Tushar Singh Samota, a law student from
University Five Year Law College, Rajasthan University. The article
discusses the Prevention of Corruption Act, of 1988 along with its evolution
and key features. The discussion will be supported by various judicial
pronouncements as well.
This article has been published by Sneha Mahawar.
Table of Contents
·
Distinctive
features of the Act
·
Important
provisions of the Act
§ Whether they are public servants or not?- Minister, Chief
Minister, and Prime Minister
§ Persons
authorised to investigate
§ Restriction on the investigation in certain cases
·
Act-related
constitutional provisions
·
Frequently
asked questions (FAQs)
- What are the goals of the 1988 Prevention of
Corruption Act?
- Who are the authorities who may conduct an
investigation?
- Can a briber who cooperates with the investigation
face charges of abetment?
- How may a person seek remedy from dishonest public
officials?
- What is meant by using gratification as a motive or
reward for performing or refraining from performing any official act?
Introduction
“Just as it’s hard to tell when and how much water a fish
consumed, similar is the act of stealing government money by officials.”
Corruption has existed in India for centuries. It begins with
opportunistic leaders who see any task that comes to them as a chance to gain
money. Corruption is seen as one of the most significant barriers to
advancement, particularly in developing nations such as India, and particularly
in government agencies. Even the education sector, which is intended to instil
ideal ethical behaviour in students, is not immune to this evil. For example,
the Anti-Corruption Bureau detained two top executives of the Directorate of
Higher Education for seeking and receiving a bribe of Rs. 20,000 from a
Professor apprehended by the Anti-Corruption Bureau’s (ACB) Thane section in
Maharashtra Mumbai. The Criminal Law (Amendment) Ordinance,
of 1944 was one of the earliest pieces of law to manage the
field of corruption. It was designed to prevent the disposal or concealment of
property obtained by corruption, bribery, or other related offences. In 1964,
a Central
Vigilance Commission was established to specifically deal with
cases of corruption, and many State-specific vigilance commissions were also
established to address the issue of corruption.
As a result, the Prevention of Corruption Act, 1988
(POCA) was established to consolidate all existing laws and
combat corruption in government agencies and prosecute and punish public
workers who engage in corrupt acts. It is a powerful tool for combating this
evil. The effectiveness of this legislation is critical to the success of the
anti-corruption effort. The Central Government has the authority under this Act
to appoint judges to investigate and try cases when the offences punishable
under the Act are committed or where a conspiracy to conduct or an attempt to
commit the offences defined under the Act is made.
The author attempted to explore The Prevention of Corruption
Act, of 1988 in this article by addressing its evolution as well as its
significant provisions. The article will also discuss the legislation’s
amendments as well as judicial pronouncements on the Act.
Evolution of the
Act
Initially, the Indian Penal Code, of 1860 dealt
with bribery and corruption in situations involving public servants inside the
Indian Justice System. However, it was seen throughout the 1945s that the
then-existing law was insufficient to handle the exigencies, and an issue was
felt to establish unique laws with bribery and corruption, so the Prevention of Corruption Act, of
1947 was adopted impressively. The 1947 Act was later amended
twice, first by the Criminal Law Amendment Act of 1952 and
then by the Anti-Corruption Laws (Amendment)
Act of 1964, both of which were based on the recommendations of
the Santhanam Committee.
As a result, the 1947 Act served as a model for the 1988
Prevention of Corruption Act, which went into effect on September 9, 1988. It
was aimed at making anti-corruption legislation more effective by broadening
their inclusion and strengthening the requirements to make the general
resolution more realistic and to eliminate corruption in government offices and
public sector organisations in India. The purpose of the Prevention of
Corruption Act aims to combat corruption in different government organisations
and public sector entities in India.
However, it is not only important to understand the extent to
which corruption may be detected in government agencies, but it also means
prosecuting and punishing public workers who are participating in corrupt
actions. Furthermore, the Act considers those who assisted the criminals in
perpetrating the bribery or corruption offence.
Distinctive features
of the Act
The following are some of the key features of the Act:
1. It has
broadened the definition’s application to include terms like “public duty” and
“public servant” under Section 2 of the Act’s definition clause.
2. According
to the Code of Criminal Procedure, 1973,
it has transferred the burden of proof from the prosecution to the person
accused of the crime.
3. The
Act’s requirements are very clear: an officer with at least the rank of Deputy
Superintendent of Police must conduct the inquiry.
4. The
1988 Act broadened the definition of “public servant” to include Central
Government personnel, union territories, nationalised banks, University
Grants Commission (UGC), vice-chancellors, academics, and
others.
5.
The Act criminalises corrupt conduct like bribery,
misappropriation, acquiring a monetary advantage, having assets
disproportionate to income, and so on.
Important provisions
of the Act
Important definitions
Section 2(b) of the Act defines “Public
duty” as a duty in the execution of which the state, the public, or
society at large has an interest. The term ‘state’ has a broad meaning as well.
In this context, state means
1. A
corporation created or founded by a Central, Provincial, or State Act.
2.
A government authority or a body controlled or aided by a
government company, as defined in Section 617 of
the Companies Act of 1956.
The importance of the term “public duty” is that those who are
paid by the government for doing public tasks or who otherwise conduct public
obligations may also prevent corruption among public workers.
Section 2(c) of the Act defines “public
servant” broadly and expressively. Thus the term includes the
following:
1. Any
individual employed by the government, receiving government compensation, or
receiving fees or commissions from the government for the performance of any
public obligation;
2. Any
individual who works for or is compensated by a local government;
3. Any
employee of a firm created by or operating under a Central, Provincial, or
State Act, as well as any authority, body, or company owned, controlled, or
assisted by the Government, as defined in section 617 of the Companies Act,
1956.
4. Any
Judge, as well as anyone permitted by law to carry out adjudicatory duties on
their own or as a part of any group of people;
5. Any
individual designated as a liquidator, receiver, or commissioner by a court of
justice with the authority to carry out any function related to the
administration of justice;
6. Any
arbitrator or other individual to whom any issue or subject has been submitted
by a court of justice or by a competent public authority for judgement or
report;
7. Any
person who occupies a position that gives him the authority to conduct an
election or a portion of an election, or to compile, publish, maintain, or
update an electoral roll;
8. Any
individual holding a position that allows or obligates them to carry out public
duties;
9. Anyone
serving as the president, secretary, or other office-holder of a registered
cooperative society engaged in agriculture, industry, trade, or banking who is
currently receiving or has previously received financial aid from the Central
Government, a State Government, or from any corporation created by or operating
under a Central, Provincial, or State Act, as well as any authority or body
owned, controlled, or assisted by the Government or a Government company as
defined in Section 617 of the Companies Act, 1956
10. Any
individual who serves as the chairman, a member, or an employee of any Service
Commission or Board, regardless of its name, or a member of any selection
committee chosen by the Commission or Board to conduct any examinations or make
any selections on its behalf;
11. Any
Vice-Chancellor, member of a governing body, professor, reader, lecturer, or
other teacher or employee of any university, regardless of their title, as well
as any individual whose services have been used by a university or another
public authority in connection with the holding or conducting of exams;
12.
Any official or employee of an educational, scientific, social,
cultural, or other institution, regardless of how it was founded, who is
receiving or has previously received financial support from the Central
Government, any State Government, a local government, or other public
authority.
Whether they are public servants or not?-
Minister, Chief Minister, and Prime Minister
According to Clause (12) of Section 21 of
the Indian Penal Code, which is equivalent to Clause (c) of Section 2 of the
Prevention of Corruption Act, 1988, a Minister, Prime Minister, or Chief
Minister is a public servant.
The Supreme Court in the case of M. Karunanidhi v. Union of India (1979),
determined that a Minister is employed by and subject to the authority of the
Governor, receives compensation for labour or duties performed on behalf of the
public, and is paid his salary from public money. A Member of the Legislative
Assembly (MLA) was found not to be a public servant under Section 21 of the
Indian Penal Code, but he is covered by Clause (c) of Section 2 of the
Prevention of Corruption Act, 1988.
The term is not limited to the cases specified in the defining
clause, and courts have adopted an interpretation that allows additional people
to be included within its scope. In P.V. Narasimha Rao vs State (1998), the
definitions of “public duty” and “public servant” were questioned. Thus the
Supreme Court’s decision made it apparent that the terms “public duty” and
“public servant” would be given a broad construction. An MP would therefore be
subject to section 2 of the Prevention of Corruption Act, 1988, even if no
authority may obtain authorisation for his prosecution under section 19 (1) of
the Act.
Accepting rewards, influencing public
officials, and accepting gifts
Sections 7 to 11 of the POCA define cases of receiving
gratification, influencing public officials, or accepting gifts. The Act
categorises offences according to the severity of their effects. Similarly,
actions of abetment, conspiracy, agreement, and attempt to commit these
offences have been made criminal since it is more vital to nip bribery and
corruption in the bud. Various actions have been classified and rendered
punishable under various Sections.
It is crucial to note that these parts are currently being
requested to be significantly changed in light of India’s duties under the
UNCAC. The provisions of the Prevention of Corruption Act as they currently
exist are detailed below. The Act’s provisions for offending transactions
always include a public servant and illicit remuneration in conjunction with
obtaining a favour from the public servant or as an incentive or reward for the
public servant.
Section 7 allows public workers to
receive rewards other than lawful pay in exchange for doing an official act.
According to the explanation for Section 7, gratification is not limited to
monetary or monetary-equivalent gratifications. However, it is equally crucial
that such a demand be made by the public servant, and the mere possession of
the valuable property, in the absence of proof of such a demand, may not result
in guilt under Section 7 of this Act.
When a public servant takes or gets illicit gratification for
himself or another person, the act is criminal. The term gratification has also
been used extensively, and it refers to a variety of things. Within itself,
there are instances and transactions. The term “gratification” is
not just limited to monetary or monetary-equivalent gratifications
Section 8 prohibits obtaining
gratification by corrupt or criminal means to influence a public worker. The
phrase “whoever accepts or acquires, or agrees to accept, or seeks to
obtain” is used throughout the provision and has been determined to
apply to both public workers and non-public servants.
The main distinction between Sections 8 and 9 is that Section 8 allows the use
of “personal influence” to secure favour or disfavour, whereas Section 9
contemplates the use of “corrupt or criminal methods.” Although Section 8 uses
the term “corrupt,” it is not defined in the Prevention of Corruption Act.
A public servant who receives a valuable object from a person
who is involved in any business or transaction involving that public official
might be prosecuted under Section 11. The mechanism of this provision requires
public employees to acquire something of value while doing their official
duties, and these advantages must primarily benefit the employee or any other
person.
According to Section 12, whoever aids
any crime defined under Sections 7 to Section 11 regardless of whether the
crime is committed as a result of the aid shall be punished with imprisonment
for a term that shall not be less than three years but which may extend to
seven years, as well as being subject to a further five years in prison.
Section 13 of the Act enables the
prosecution of a repeat offender and more significantly, makes a public
employee who:
1. Gets
any valuable item or financial gain by corrupt or criminal means,
2. Acquires
said item by abusing his position as a public official or,
3.
While serving as a public servant, obtaining something of value
or a financial benefit for someone else without serving the public interest.
Without evidence of demand, the mere possession and seizure of
cash from a subject of an inquiry do not constitute a violation of Section 7
or Section 13(1)(d) of this Act. In P. Satyanarayana Murthy vs The District Inspector of
Police (2015), the Supreme Court ruled that the use of corrupt
or illegal means or abusing one’s position as a public servant to obtain any
valuable item or financial advantage cannot be deemed to have been proven in
the absence of any proof of a demand for illegal gratification.
Is this Act applicable to private individuals
as well
As previously stated, the Prevention of Corruption Act of 1988
applies to public workers. To some extent, it also applies to a segment of
private individuals. Though the Prevention of Corruption Act of 1988 punishes
violations committed by public workers, there are a few occasions where it also
applies to private individuals.
Section 8 describes the circumstances in which a person seeks
illicit gratification in order to influence a public worker. Thus, anytime an
illegal payment is received by a person other than a public worker under the
criteria specified in Section 8 of the Act (which are the same as those
specified in Section 7), that person is equally responsible for the violation.
The Act provides for penalties ranging from six months to five years in jail,
as well as a fine. Similarly, activities undertaken by individuals who utilise
their personal influence with public workers to obtain illicit gratification
are likewise prohibited by the Act.
Thus, this Section 8 applies to anyone who has a connection to
public workers who are engaging in corrupt actions. Given our country’s V.I.P.
mentality, this is a critical provision. There are a lot of people who are
relatives, acquaintances, or friends of public workers who brag about their
relationship with such public servants and try to obtain illicit advantages in
a variety of areas. Furthermore, this regulation inhibits public officials from
obtaining illicit advantages by concealing their identities behind the identity
of another individual.
Whether it is illegal to abate some offences
If a public employee who has been charged with an offence under
Sections 8 or 9 aids and abets the actions of those other people, the act of
aiding is itself criminal under the Act, Whether the crime was done as a result
of the abetment, in this case, is irrelevant. The abettor will be subject to a
fine in addition to a sentence of imprisonment that must be at least six months
long but may not exceed five years.
As a result, the abettor will face the same form of penalty. It
is a positive feature when it comes to preventing people from assisting others
to commit crimes under the Act, as it provides the same level of penalty for
the abettor regardless of whether the offence aided is committed or not.
Similarly, Section 12 makes it a crime to aid and abet an offence described in
Sections 7 and 11. Section 7 makes it a crime for a public officer to accept a
reward other than lawful pay in exchange for performing an official act.
Section 11 makes criminal acts of a public officer getting
valuable things without compensation from the person involved in the proceeding
or transaction undertaken by such a public servant.
Investigation
Persons authorised to investigate
An investigation of the offence is critical in the criminal
justice system. Generally, the police conduct the investigation. It is their
primary obligation to gather evidence and try to identify the true perpetrators
of the crime. The police have been granted extensive powers for this reason.
However, the police can abuse their broad powers at times. Because this is a
question of administration and governance by public workers, these powers
should be thoroughly reviewed. Not all police officers are permitted to conduct
investigations for this reason. Only police personnel of a certain rank are
permitted to investigate the matter.
Section 17 of the Act addresses those who
are authorised to conduct investigations under the Act. The following
individuals have been authorised:
1. In the
case of the Delhi Special Police Establishment: An officer with the rank of
Inspector of Police or higher (CBI).
2. In
metropolitan locations such as Bombay, Madras, and Calcutta: An official with
the rank of Assistant Commissioner of Police or above.
3.
Elsewhere: An officer with the rank of Deputy Superintendent of
Police or higher is authorised.
No approved official may conduct investigations or make arrests
until an order from the Metropolitan Magistrate or Magistrate of First Class is
obtained. Furthermore, as previously indicated, he may arrest the accused
without a warrant from such Metropolitan Magistrate or a Magistrate of First
Class. In this approach, we can see that under the Prevention of Corruption Act
of 1988, not all police officers are permitted to investigate accusations of
corruption. Only the designated police personnel are authorised to conduct
investigations into the offences.
Thus, an effective arrangement has been created in context, and
a good balance has been struck between the two sides, namely, the accused and
the prosecution, to ensure that no public worker is harassed unduly by the
police. It is an effective structure for controlling the evil of corruption and
establishing the rule of law in order to achieve the lofty goal of natural
justice.
Restriction on the investigation in certain
cases
Section 17A of the
Amendment Act 2018 stipulates that no one may investigate an alleged offence if
it involves a recommendation/decision made by a public worker in the course of
his official responsibilities. If such an inquiry is to be performed, the
following approvals are required:
1. Approval
of the Central Government is required for offences involving Union matters.
2.
For offences involving the conduct of state affairs, state
government approval is required.
However, if an arrest is conducted on the scene and the offender
admits to committing an offence, no such clearance is necessary.
The authority to examine bankers’ books
Section 18 of the Act stipulates that if
the investigation officer believes that the bankers’ records need to be
examined for the purpose of inquiry, the officer may examine them. This power
of inspection extends beyond the offender’s bank accounts and includes the
authority to search the bank accounts of anybody whom the officer suspects of
holding money on behalf of the criminal.
The function of the bribe provider and the
presumption of taint
According to Section 20 of the
POCA, there is a presumption that any expensive item or pleasure discovered in
the hands of a person under investigation was obtained for the reasons
described in Section 7 of the Act. This is a rebuttable presumption, and the
individual under investigation would have the burden of proving that the valued
item or gratification was not obtained in connection with the Act’s violation.
Accordingly, a person under investigation would be found guilty if no evidence
was presented to refute the assumption, as was decided in the case of M. Narsinga Rao vs State of Andhra Pradesh (2001).
Section 24 of the POCA grants immunity to
the bribe giver and states that the bribe giver’s confession will not expose
him to prosecution. The immunity granted to bribe providers under this rule has
been seen as a fundamental weakness as well as contradictory with international
norms.
|
Offences under the Act |
Punishment under the Act |
|
Taking gratification other than
legal remuneration. (Section 7) |
Those found guilty shall face
imprisonment for 6 months, extendable up to 5 years. A fine shall also be
levied. |
|
Taking gratification to influence
a public servant, through illegal and corrupt means. (Section 8) |
Imprisonment for not less than
three years, which is expandable up to seven years. A fine shall also be
levied. |
|
Taking gratification to wield
personal influence with public servants. (Section 9) |
Imprisonment for not less than 6
months, extendable up to 5 years. A fine shall also be levied. |
|
Act of criminal misconduct by the
public servant. (Section 13) |
Imprisonment for not less than 1
year, expandable up to 7 years. A fine shall also be levied. |
Punishment or penalty under the Act
The imposition of punishment or penalty is a fundamental need of
the criminal justice system. The aim of the law is impossible to achieve in the
absence of consequence or retribution. Penalty or punishment has a deterring
impact on potential future wrongdoers. The severity, amount, and length of the
penalty all have an impact on the accused’s rehabilitation. Under the
Prevention of Corruption Act of 1988, the general punishment is from three to
seven years in jail for lower-level offences (under Sections 7 to 12), in
addition to a fine. Higher-level offences, such as the acts performed by the
accused under Section 13, are penalised with harsher penalties.
The offence of criminal misconduct, as defined in Section 13, is
punished by imprisonment for a duration of not less than four years but not
more than ten years, as well as a fine. Persons who commit the offences listed
in Section 14, i.e. the habitual commission of
offences listed in Sections 8, 9, and 12, face a five-year jail sentence, which
can be increased to 10 years. In addition, he will be required to pay a fine as
determined by the court. The Act also makes efforts to commit offences
criminal. It is specified that anybody who attempts to commit an offence
referred to in clause (c) or clause (d) of sub-section (1) of section 13 is
punished by imprisonment for a minimum of two years, which can be increased to
five years in jail with a fine.
The Act further states that the Court must examine the value or
financial interest in the object or property that is the subject of the offence
committed. Previously, the Prevention of Corruption Act of 1988 only provided
for a short term of imprisonment, which was insufficient to effectively combat
the evil of corruption. The Lokpal and Lokayuktas Act of
2013 later extended the sentence. It was extended as a result
of increasing pressure from all walks of life against the scourge of
corruption. In recent days, civil society has made significant contributions in
this area by building a strong public opinion against the scourge of
corruption. The Lokpal and Lokayuktas Act, 2013, was the outcome of this
awareness, as well as the government’s legal responsibility to execute the
terms of UNCAC.
The procedure used to investigate and
prosecute corrupt public officials
1. The Central
Vigilance Commission (CVC), the Central
Bureau of Investigation (CBI), and the state Anti-Corruption Bureau are the
three primary bodies involved in enquiring, investigating, and prosecuting
corruption matters. The Directorate of Enforcement and
the Financial Intelligence Unit, both of which
fall under the Ministry of Finance, look into and prosecute cases involving
money laundering by public employees.
2. Under
the Prevention of Corruption Act of 1988 and the Indian Penal Code of 1860, the
CBI and state ACBs investigate charges of corruption. The CBI investigates
cases inside the federal government and Union Territories, whilst state ACBs
investigate crimes within the states. Cases can be referred to the CBI by
states.
3. The CVC
is a statutory agency that oversees corruption investigations in government
agencies. It is in charge of the CBI. The CVC has the authority to recommend
matters to the Central Vigilance Officer (CVO) in each department or to the
CBI. The CVC or CVO advises disciplinary action against a public worker, but
the decision to take such action against a civil servant remains with the
department authorities.
4. An
investigative agency may commence a prosecution only with the prior approval of
the national or state government. Prosecutors chosen by the government handle
the prosecution process in the courts.
5.
Under the Prevention of Corruption Act of 1988, all matters are
heard by Special Judges chosen by the national or state governments.
Amendments to the Act
The Prevention of Corruption Act of 1988 was recently updated
because no further improvements were made to the Act, resulting in its limited
success. With this Act’s limited success, a new Act was required. As a
result, The Prevention of Corruption Act,
2018 went into effect (the “Amendment Act”). The majority of
the revisions are targeted at tightening up the Act’s current provisions and
broadening the scope of the offences.
The significant changes to the Act are as follows:
1. The
word “Prescribed” has been adopted to refer to rules that the Central
Government may create under the Act. As a result, we predict the following
rules: Rules requiring organisations and businesses to develop internal
policies and procedures to prevent their personnel from giving undue benefit to
public officials and rules governing the prosecution of a public servant under
the Act.
2. “Undue
advantage” after this amendment is defined as any reward other than legal
payment. Similarly, the term “gratification” has been defined to embrace all
types of monetary gratification other than economic gratification.
3. The
phrase “Legal remuneration” under this amended Act has been defined to cover
all pay that a public worker is authorised by the relevant body to receive.
4. Under
Section 4(4), the courts no longer have to finish trials for Act-related
offences within two years, failing which the judges must record the necessity
for a time extension. A trial can now be prolonged for six months at a time up
to a maximum of four years.
5. The
amended Section 8 lays out
the consequences for anybody who aids in the payment of a bribe or attempts to
engage in corruption alongside a public official. The Amendment Act exempts
actions taken under duress as long as the person who was forced to take them
files a complaint with the police or an investigative agency within seven days
after paying a bribe.
6. For
business organisations, Section 9 now clearly addresses business organisations
and the people connected to them. The phrase “persons affiliated with
the commercial organisation” is broad enough to cover workers and
suppliers, while the word “commercial organisation” is defined to include all
types of corporate organisations.
7. For the
penalty section under this Act, provides that where the commercial
organisation’s directors, officers in default, or a person with power over the
organisation has consented to the corrupt act breaking the Act’s requirements,
Section 10 now sets specific periods for imprisonment and a fine.
8. When
Sections 10 and 9 are amended together, it may be helpful to keep in mind that
the amended Act appears to punish both commercial organisations for violating
the Act by levying a fine and the officers in charge of such commercial
organisations under Section 10 by subjecting them to criminal liability.
9. For
provisions related to public servant corruption, it appears that the Amendment
Act has reduced the circumstances in which a public employee may be charged
with suspected criminal misbehaviour. Only the misappropriation of property and
unjust enrichment are included as reasons for misconduct in the modified
Section 13 of the Act, which is assessed by disproportionate assets. In the
past, Section 13 included broad propensities to engage in corrupt behaviour or
seek bribes as grounds for criminal wrongdoing.
10.
The Amendment Act seems to make it more challenging to bring
charges against government personnel. According to the change made under
Section 19, to prosecute a public employee under Sections 7, 11, 13, and 15 of
the Act, a sanction must first be acquired from a body that has the power to
fire them. Second, an authorization request must be made by the investigating
authority such as a police officer or else other complaints must be satisfied
before the court may declare an offence to have occurred.
Act-related constitutional
provisions
The codified laws additionally provide statutory and legal
provisions against corruption. The provision of Writ Jurisdiction is also
included in the supreme law, namely the Indian Constitution. The office of
the Comptroller
and Auditor General (CAG) is established to control money and
economic offences; in addition, there are authorities at the Central and state levels
such as the Central Vigilance Commission, the Committee on Parliament
Accounts, the Central Bureau of Investigation (CBI), and the
Anti-Corruption Bureau of State (ACBS).
The Supreme Court is the Constitution’s custodian. The
Constitution has enabled the Supreme Court to protect the basic rights
entrenched in Part III of the
Constitution. Fundamental rights are rights against the overwhelming powers of
the state. The state is defined under Article 12 of the Constitution. The
following Writs are provided by Articles 32 and 226 of the Indian Constitution, as well
as the opportunity of Public Interest Litigation (PIL) is available.
1. Writ of
Habeas Corpus;
2. Writ of
Mandamus;
3. Writ of
Prohibition;
4. Writ of
Certiorari; and
5.
Writ of Quo-Warranto
All of these writs have their own influence and authority in
various domains, and they are nothing more than powers in the hands of the
judiciary to restrict administrative discretion. The preamble of the Indian
Constitution guarantees the residents of India the right to justice. The
Constitution established a federal government, which consists of a Central
government and state governments at the state level. Crime is included as a
state issue, although law and order are listed concurrently. A number of measures
in the Constitution have been enacted to combat corruption in society. Article 311 of the Indian Constitution
and the judicial reform process seek to remove corruption from society.
Judicial
pronouncements
Parkash Singh Badal And Anr vs State Of Punjab
And Ors, (2006)
The Supreme Court ruled in the case of Parkash Singh Badal And Anr vs State Of Punjab And Ors,
(2006) that if a public servant received compensation for
persuading another public servant to perform or refrain from performing any official
act, he would be subject to the provisions of Sections 8 and 9 of the
Prevention of Corruption Act. In the same case, the Supreme Court determined
that satisfaction might be of any form for Sections 8 and 9, indicating that
the scope of their applicability was broad. In this instance, the Court was
investigating the relationship between offences under Sections 8 and 9 and
Section 13(1)(d) on the one hand.
Subash Parbat Sonvane vs State of Gujarat
(2002)
Similar to Section 7, Section 13(1)(d) has been the focus of
extensive litigation. The Supreme Court in the case of Subash Parbat Sonvane vs State of Gujarat (2002) held
that to be found guilty under Section 13(1)(d), there must be proof that the
subject of the investigation, i.e the person under investigation, obtained
something valuable or financially advantageous for himself or another person
through dishonest or illegal means, by abusing his position as a public
servant, or by obtaining something valuable or financially advantageous for
another person without any consideration of the public interest.
Bhupinder Singh Sikka vs CBI (2011)
The Delhi High Court in the case of Bhupinder Singh Sikka vs CBI, (2011) found
that an employee of an insurance company established by an Act of Parliament
was inherently a public servant and that no evidence was necessary in this
regard. The Supreme Court’s wide definitions may result in unpredictability and
confusion in the law.
Habibulla Khan vs State of Orissa (1995)
It was decided in this case, Habibulla Khan vs State of Orissa,(1995) that,
while an M.L.A. falls under the definition of a “public servant,” he is not the
type of “public servant” for whom the prior sanction is necessary for
prosecution. This paradox was further resolved by a five-judge bench of the
Hon’ble Supreme Court in P.V. Narasimha Rao vs State (C.B.I.), 1998, which
stated that a Member of Parliament holds an office and is required or
accredited to execute responsibilities like public obligations by such office.
As a result, even if no authority may issue approval for his
prosecution under Section 19(1) of the Act, an MP would fall within the purview
of subparagraph (viii) of clause (c) of Section 2 of the Prevention of
Corruption Act, 1988. It was also determined that sanction is not required for
the court to take notice of the offences and that the prosecuting agency must
obtain permission from the Chairman of the Rajya Sabha or the Speaker of the
Lok Sabha, as the case may be, before submitting the charge sheet.
Amrit Lal vs State of Punjab (2016)
Bribery was addressed in Section 7 of the Prevention of
Corruption Act of 1988. The complainant’s evidence about the bribe money demand
was not validated due to a lack of verification. The amount of money asked as a
bribe was challenged in the complaint. Furthermore, two witnesses who testified
in front of whom the contaminated money was seized were not interrogated and
were unnecessarily released. The Punjab-Haryana High Court, in this case, Amrit Lal vs State of Punjab, (2016) determined
that the appellant was entitled to the benefit of the doubt and therefore
acquitted of the allegation.
Vasant Rao Guhe vs State of M.P. (2017)
The Supreme Court held in this case of Vasant Rao Guhe vs State of M.P., (2017),
that a public official accused of criminal misconduct cannot be expected to
explain the absence of evidence to support the claim that he had property or
money that was out of proportion to his known sources of income. The bench
ruled that the prosecution must prove beyond a reasonable doubt that the public
servant, either directly or indirectly through another person, had at any point
during his employment had pecuniary resources or property that was out of
proportion to his known sources of income. If the prosecution fails to prove
this burden, the prosecution will only be able to prove criminal misconduct.
Conclusion
Thus, the evil of corruption has been endangering the evolution
of humanity and civilization. Regardless of the period, evil has persisted due
to the hungry character of humans. Humans are drawn to this evil because of the
material benefits they gain from engaging in immoral acts. This Act may be
useful in developing an efficient system to combat the evil of corruption. As a
result, the Prevention of Corruption Act of 1988 is an important statute to
combat corruption. However, an Act alone will always lose this battle against
corruption; it is also the performance of our lawmakers that will give us an
advantage in controlling this menace.
Be aware that nothing in the universe could be perfect, and that
this Act is subject to the same rule. Further, if needed, effective amendments
have to be passed, but the investigating agencies’ effectiveness and efficiency
are also crucial in this respect. With the most recent revisions, it is now
facing blisters from legal heavyweights, but this should be avoided, and
lawmakers should work to find the gap in the law and close it as completely as
possible.
Frequently asked questions
(FAQs)
What are the goals of the 1988 Prevention of
Corruption Act?
The 1947 Act served as a model for the 1988 Prevention of
Corruption Act, which went into effect on September 9, 1988. Its goal was to
make anti-corruption legislation more effective by broadening its scope and
tightening the provisions to improve the whole statute’s effectiveness.
Who are the authorities who may conduct an
investigation?
The Government of India, states, and union territories have
designated police officials who may conduct investigations, however, it is
normally an officer of the rank of Assistant Commissioner of Police/Deputy
Superintendent of Police.
Can a briber who cooperates with the
investigation face charges of abetment?
A person who admits to paying or offering to pay a bribe in a
proceeding against a public servant will not be prosecuted as an abettor.
How may a person seek remedy from dishonest
public officials?
If the public servant is a Central Government employee, the
person can call the local Central Bureau of Investigation (CBI) office’s
anti-corruption branch. If the public worker works for the state government,
the citizen may submit a petition to the Lokayukta/Vigilance Commission.
What is meant by using gratification as a
motive or reward for performing or refraining from performing any official act?
A public servant may request/accept gratification for performing
an official act, such as issuing a driving licence, as well as for failing to
perform an official act, such as failing to evict and fine someone who has
encroached on public land.
References
·
https://books.google.com/books?id=wzEtEAAAQBAJ
· https://legaladviceguru.com/the-prevention-of-corruption-amendment-act-2018
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