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Prevention of corruption (amendment) bill 2018

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Prevention of corruption (amendment) bill 2018

  1. 1. PREVENTIONOF CORRUPTION( AMENDMENT ) BILL, 2018.
  2. 2. CORRUPTION- illeffects  Undermines investment and economic growth  Decreases the resources available for human development goals  Deepens the extent of poverty  Subverts the judicial system, and undermines the legitimacy of the state  It can devastate the entire economic, political, and social fabric of a country  Urgent need to create a zero tolerance for corruption
  3. 3. An Anti-Corruption Bill passed by Parliament provides for punishment to both bribe-givers and takers, and extends some relief to public officials. The Prevention of Corruption ( Amendment ) Bill, 2018 was passed by Lok Sabha on Tuesday after the Rajya Sabha approved it on July 19. Instances of corruption and provisions to punish the guilty are provided in the Prevention of Corruption Act, 1988.
  4. 4. provisionsof bill 1. Punishment for bribe-taking enhanced: Minimum punishment of 3 yrs, extendable up to 7 yrs with fine; from the earlier 6 months, with extension up to 3 yrs. 2. 'Undue Advantage' expanded: The earlier limited definition of "undue advantage" expanded to now include "anything other than legal remuneration". 3. Gifts criminalised: Gifts received for established undue advantage/mala-fide motive are now considered an act of corruption.
  5. 5. 4. Collusive bribe-givers criminalised: For the first time, the giving of bribe has now been made a direct offence on par with taking of bribe. At the same time, protection has been built-in against coercive bribery, as long as the victim comes forward within 7 days. 5. Corporate bribery criminalised: Superiors to be held if employee/agent has bribed with their approval, for advancement of the organisation's interests. 6. Immediate forfeiture: Law enforcement empowered for immediate attachment & forfeiture of illegal property of a public servant, invoking provisions of the Prevention of Money Laundering Act (PMLA). 7. Timely trial mandated: To conclude the investigation and trial within 2 yrs, extendable up to 4 yrs
  6. 6. Keytakeawaysfrombill The Bill makes bribing a punishable offence. It redefines provisions related to criminal misconduct. It makes mandatory for taking prior approval of relevant Government or competent authority to conduct any investigation into offence. It modifies definitions and penalties for offences related to taking bribe, being habitual offender and abetting offence.
  7. 7. background The amendment to the Prevention of Corruption Act, 1988 was necessitated from the obligation of India to review the existing provisions of the Act so as to bring it in line with the United Nations Convention against Corruption (UNCAC). This led to the introduction of the Prevention of Corruption (Amendment) Bill, 2013 in the Rajya Sabha in August 2013. However, it could not be passed as the Bill contemplates an important paradigm shift in defining offences relating to bribery. Later, the views of the Law Commission of India were sought on the proposed amendments. The Bill incorporates the recommendations given by the 20th Law Commission headed by Justice (retd) AP Shah in its 254th Report.
  8. 8. Preventionof CorruptionAct, 1988 (theACT) Definition use of public office for private gain Legislative framework Prevention of Corruption Act, 1988 to fight corruption Allied Acts applied Indian Penal Code (IPC), and Criminal Law (Amendment) Act, 1952 in the PCA, 1988
  9. 9. OFEENCESUNDERPREVENTIONOF CORRUPTIONACT, 1988 SECTION DESCRIPTION OF OFFENCE 7 Public servant taking gratification other than legan remuneration in respect of an official act. 8 Taking gratification in oreder, by corrupt or illegal means to influence public servant. 9 Taking gratification for exercise of personal influence with public servant. 10 Abetment by public servant of offences defined in section8 pr section 9 of the Prevention of Corruption Act,1988.
  10. 10. The ACT – Salient Features  The Act covers the offence of giving a bribe to a public servant under abetment. The Billmakes specific provisions related to giving a bribe to a public servant, and giving a bribe by a commercial organisation.  The Act redefines criminal misconduct to only cover misappropriation of property andpossession of disproportionate assets.  The Act modifies the definitions and penalties for offences related to taking a bribe,being a habitual offender and abetting an offence.  Powers and procedures for the attachment and forfeiture of property of public servantsaccused of corruption have been introduced in the Act.  The Act requires prior sanction to prosecute serving public officials. The Act extendsthis protection to former officials.
  11. 11. LOOPHOLESIN POCACT , 1988  Insufficient punishment;  Act applicable only upon public servants;  Act does not cover corporate or private bribery;  Act not applicable upon foreign public officials;  Act does not have extra-territorial application;  Delay in prosecuting;  No provision regarrding confiscation of proceeeds from bribery.
  12. 12. ThePreventionofCorruption(Amendment)Bill,2013 • The Prevention of Corruption (Amendment) Bill, 2013 amends the Prevention of Corruption Act, 1988. • The Act covers the offence of giving a bribe to a public servant under abetment. The Bill makes specific provisions related to giving a bribe to a public servant, and giving a bribe by a commercial organisation. • The Bill redefines criminal misconduct to only cover misappropriation of property and possession of disproportionate assets. • The Bill modifies the definitions and penalties for offences related to taking a bribe, being a habitual offender and abetting an offence. • Powers and procedures for the attachment and forfeiture of property of public servants accused of corruption have been introduced in the Bill. • The Act requires prior sanction to prosecute serving public officials. The Bill extends this protection to former officials.
  13. 13. Key Issuesand Analysis • The Bill makes giving a bribe a specific offence. There are diverging views on whether bribe giving under all circumstances must be penalised. • The Bill has deleted the provision that protects a bribe giver from prosecution, for any statement made by him during a corruption trial. • The Bill has replaced the definition of criminal misconduct. It now requires that the intention to acquire assets disproportionate to income also be proved, in addition to possession of such assets. • By redefining the offence of criminal misconduct, the Bill does not cover circumstances where the public official: (i) uses illegal means, (ii) abuses his position, or (iii) disregards public interest and obtains a valuable thing or reward for himself or another person. • Under the Act, the guilt of the person is presumed for the offences of taking a bribe, being a habitual offender or abetting an offence. The Bill amends this provision to only cover the offence of taking a bribe.
  14. 14. Prevention of Corruption Act, 1988 Prevention of Corruption (Amendment) Bill, 2013 Definition of undue advantage  No provision  No provision.  Term used to define bribery related offences include“financial or other advantage”. Taking of a bribe Sections 7- 9: A public servant is said to have taken a bribe if he : i) Accepts or attempts to obtain any reward, other than a salary. This reward must be for doing or intending to do any official act. ii) Accepts a reward for official acts that favour or disfavour any person. iii) Accepts a reward from another person to exercise personal influence over a public servant Replaces provision in the Act with the following: A public servant is said to have taken a bribe if he: i) Requests or accepts or attempts to obtain any financial or other advantage for performing a public function in an improper manner. ii) Requests or accepts or attempts to obtain any financial or other advantage and such request in itself would constitute improper performance of public function.
  15. 15. QUERIES..? PCOAMENDMENTBILL,2018 How has the definition of a corrupt public official changed? • 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 updated Section 7 defines a corrupt public official as any public servant who tries to obtain or accept from any person an “undue advantage with the intention to perform or cause performance of public duty improperly or dishonestly.” This also includes receiving an undue advantage as a “reward” for improper or dishonest work.
  16. 16. QUERIES..? PCOAMENDMENTBILL,2018 Do the amendments differentiate between a bribe-giver and the person taking the bribe? • In the older law, bribe givers were not considered accused. At the most, they could be prosecuted as having abetted the corruption. The amendments, however, expressly criminalise bribe giving as well as bribe taking. That said, the amendments do carve out an exception for those who are “compelled”, or forced, to give a bribe or an undue advantage. This exception only applies if they report the matter within seven days after being forced to give the bribe.
  17. 17. QUERIES..?PCOAMENDMENTBILL,2018 What does the Bill consider as an offence committed by a public official? • The older law had an expansive view of what counted as “criminal misconduct” by public officials. It included, “any gratification... valuable thing or pecuniary advantage” obtained by a public official, either for himself or herself or for someone else, without public interest or by corrupt or illegal means. • This section was often criticised by bureaucrats and bankers, since it meant that even decisions like giving out loans could be considered a “pecuniary advantage” obtained for someone “without public interest”.
  18. 18. CONCLUSION Anti-corruption laws and institutions are only as good as the people who uphold their founding principles.There is no substitute for individual integrity and ethical value system to fight against corruption and this integrity needs to be inculcated among the country's citizens. Therefore,anti corrruption strategies and amending legislations would lay greater emphasis to overcome deterrent effects of pecuniary benefits and to combat corruption at large. The amendments may provide immunity, probity and rule of laws to follow right path.
  19. 19. Thank You !

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