Analysis: Prevention of Corruption Act, 1988

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Initially, within the Indian Justice System, the Indian Penal Code dealt with the offenses of bribery and corruption in cases of Public Servant. But during the 1945s it came into notice that the then-existing law was not adequate to meet the exigencies and a need was felt to introduce special legislation to eradicate bribery and corruption, it was thus that the Prevention of Corruption Act, 1947 was enacted for the first time.

The 1947 Act was later amended at two instances by the Criminal Law Amendment Act, 1952 and by the Anti-Corruption Laws (Amendment) Act, 1964 based on the recommendations of the Santhanam Committee. The 1947 Act became a pilot to the Prevention of Corruption Act, 1988 which came in force on 9th September 1988. It was aimed at making anti-corruption laws more effective by widening their coverage and by strengthening the provisions to make the overall statute more effective.

Its salient features

Some of the salient features of the Prevention of Corruption Act are as follows:

It incorporates the Prevention of Corruption Act, 1947, the Criminal Law Amendment Act, 1952, and Sec. 161 to 165-A of the Indian Penal Code with certain tweaks in the original provisions.

It has enlarged the scope of the definition such as Public Duty and Public Servant under the definition clause, Section 2, of the act.

It has shifted the burden of proof from the prosecution as mentioned in the CrPC to the accused who is charged with the offense.

The provisions of the Act clearly states that the investigation is to be made by an officer, not below the rank of Deputy Superintendent of Police.

The 1988 Act enlarged the scope of the term ‘public servant’ which now includes employees of the central government, union territories, nationalized banks, employees of the University Grants Commission (UGC), vice-chancellors, professors, and the like.

The Act covers ‘corrupt’ acts as bribe, misappropriation, obtaining a pecuniary advantage, pos­sessing assets disproportionate to income and the like.

Critical analysis of the act

The objective of the Act with later amendments seem to place a lot of accountability on commercial organizations. The recent trend of anti-bribery and anti-corruption notion is the base for the Act because in its totality it gives us a tool of action specifically for cases of corruption in Public Duties. The provisions of this Act have multiple interpretations which could be dealt with only by further judgments in this regard and newer amendments in this field. There are a few highlighting points of this act with that have arisen with the recent amendments which are as follows:

Section 4 of the Act states that a trial is to be concluded within 4 years of its first hearing but there is nothing suggested as to what the deviance would result in. This would seriously stall and slow down the entire process.

Section 9 of the Act though lacks clarity, seems to suggest that Indian companies must start incorporating anti-bribery provisions in their commercial agreements.

Sections 7A and Section 8 of the Act which essentially deals with undue advantages in organization enunciates that every person involved in corruption despite being a private or a public enterprise could be prosecuted for corruption.

When an Indian Party contracts with any other party which indulges in corrupt practices with or without the knowledge of the former party than the company indulging in corrupt practices could be prosecuted.

By a bare reading of the provision of this Act, it is clear that it is aimed at risk mitigation by developing robust anti-bribery and anti-corruption procedures or guidelines suitable for our nation to curb the cancer of Corruption from our Society.

Landmark cases under the act

In CBI, Bank Securities & Fraud Cell v. Ramesh Gelli and Others (Writ Petition (CRL.) NO. 167 OF 2015.) the question was that what bodies come under the definition of Public Servant. The Apex Court here held that officers of private banks come under the definition of public servants under the Prevention of Corruption Act (PCA), 1988. About the objectives of the Act, the court also held that it was aimed at making anti-corruption law more effective thereby widen its coverage.

In Manzoor Ali v. Union of India (WRIT PETITION (C) NO. 305 OF 2007) the question regarding the validity of Section 19 of the Prevention of Corruption Act, 1988 came to question. It was held here that sanction for prosecution in a corruption case is not unconstitutional as a mere possibility of abuse cannot be a ground to declare a provision unconstitutional.

It Aiyappa v. Anil Kumar ((2013) 10 SCC 705) the court, with regards to, the objective of the provisions of the Act, the court held that it has the objective of protecting an innocent public servant against unwarranted and mala fide prosecution.

The 2G Spectrum Case was one of the landmark cases under the Act, wherein,  telecom spectrum, was allotted by the UPA government at throwaway prices through corrupt and illegal means. The acts were in violation with the provisions of Public Duty as mentioned under the Act and therefore charges were made against the concerned people. A special CBI court was for trial which on 21st December 2017 acquitted all the persons.

Conclusion

The Prevention of Corruption of Act, 1988 is important legislation to fight corruption. But a statute alone can never win this war against corruption, it is also the performance of our legislators which would give an upper hand to curb this menace. It is also important to know here that nothing in this universe could be perfect and the same law applies to this Act. With the recent amendments it is facing rants from legal luminaries, but this should be avoided and the legislators should strive to find out the lacuna in the legislation and make it as perfect as possible.

In light of all this, the recent amendments should also be welcomed and be considered as initial steps for the creation of law which could be an ideal type in itself. The Act has been beautifully drafted but a huge power has been vested in the hands of the Central and State Government which is the sole and a major concern. Despite all this, it is a very powerful Act that needs proper implementation to curb corruption from grass root-level.

Author: Pratyush Pandey from Rajiv Gandhi National University of Law, Patiala..

Editor: Tamanna Gupta from RGNUL, Patiala

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