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Prevention of Corruption Act, 1988



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Introduction

The Prevention of Corruption Act of 1988 is a crucial legislation enacted by the Indian Parliament, it came into effect on September 09, 1988, to combat corruption and promote integrity in public administration. In the pre-1988 era, India lacked a comprehensive law specifically targeting corruption. The absence of a robust legal framework hindered the effective prosecution of corrupt individuals and fostered a culture of impunity. Recognizing the need to address this pressing issue, the Indian government enacted the Prevention of Corruption Act of 1988 to provide a specialized legal framework for combating corruption. With the enactment of this Act, the provisions of the Prevention of Corruption Act, 1947 (which acted as a model for its enactment) were consolidated. 

The Act defines corruption and its various forms, including bribery, abuse of power, and illicit enrichment. It covers public servants, both in the government and public sector undertakings, who engage in corrupt practices. In India, there is no law that specifically prohibits bribery in the private sector. However, the same can be done through the Companies Act, 2013 which penalizes ‘Fraud’ in connection with the company affairs. The Prevention of Corruption Act, 1988, safeguards the rights of individuals and aims to prevent the coercive practice of demanding substantial payments from citizens by government officials in exchange for completing official tasks. This practice, commonly referred to as bribery, is deemed illegal by the Indian government.

The Prevention of Corruption Act of 1988 has undergone an amendment to address emerging challenges and strengthen the fight against corruption. The amended Act is known as the Prevention of Corruption (Amendment) Act, 2018. This amendment introduced several crucial changes, including the criminalization of bribe-giving, the protection of public officials from malicious or vexatious complaints, and the establishment of special courts for speedy trials of corruption cases. It also introduced provisions for the attachment and confiscation of property acquired through corrupt means. These amendments aimed to enhance the Act's efficacy and streamline the judicial process. This article aims to provide a comprehensive understanding of the Act, its key provisions, and its significance in curbing corrupt practices.

Key Provisions: the Prevention of Corruption Act, 1988

Important Definitions

Section 2 of the Prevention of Corruption Act includes several important definitions that help clarify the scope and application of the Act. The two most important definitions defined in the Act include, ‘public duty’ and public servant’. 

Public duty means “a duty in the discharge of which the State, the public or the community at large has an interest.” 

The Act defines a public servant as: 

  • any person who holds an office by virtue of appointment, election, or nomination in a government or statutory body or performs public duties or receives government compensation or receives commission or fees from the government; 
  • any person who works for or is paid by a local authority;
  • any person who is employed or is paid by a corporation established under a Central, Provincial, or State Act, or an authority controlled or owned or aided by a Government Company or the Government as defined in Section 617 of the Companies Act, 1956;
  • “any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
  •  any person authorized by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver, or commissioner appointed by such court;
  • any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority;
  • any person who holds an office by virtue of which he is empowered to prepare, publish, maintain, or revise an electoral roll or to conduct an election or part of an election;
  • any person who holds an office by virtue of which he is authorized or required to perform any public duty;
  • any person who is the president, secretary, or other office-bearer of a registered cooperative society engaged in agriculture, industry, trade, or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956;
  • any person who is a chairman, member, or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;
  • any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer, or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;
  • any person who is an office-bearer or an employee of an educational, scientific, social, cultural, or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.”

Other definitions including election, prescribed, undue advantage gratification, and legal remuneration are also defined in this Section for clarity and removal of ambiguity. 

Appointment of Special Judges

The appointment of special judges under the Prevention of Corruption Act of 1988 is an important aspect of ensuring the effective adjudication of corruption cases. The Act recognizes the need for expeditious disposal of corruption cases and establishes special courts or designates specific judges to hear such cases. Section 3 of the Act illustrates the ‘Power to appoint special Judges’. It states “The Central Government or the State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely: (a) any offence punishable under this Act; and (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).” The Act also highlights that “A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure,” as mentioned in Section 3(2) of the Act.

Offences and Penalties under the Prevention of Corruption Act, 1988

Offenses and penalties under the Prevention of Corruption Act, 1988 are outlined in various sections of the Act. Here are some of the key offenses and their corresponding sections:

Section 7: ‘Offence relating to public servant being bribed’

Offence: Any Public servant who accepts or obtains gratification other than legal remuneration as a motive or reward for performing or abstaining from performing an official act. 

Penalty: Imprisonment for a term not less than three years, which may extend to seven years and a fine.

Section 8: ‘Offence relating to bribing of a public servant’

Offence: A public servant who accepts or obtains any bribe as a motive or reward for performing or abstaining from performing an official act. Section 8 states “Any person who gives or promises to give an undue advantage to another person or persons, with intention (i) to induce a public servant to perform improperly a public duty or (ii) to reward such public servant for the improper performance of public duty.”

Penalty: Imprisonment for a term which may extend to seven years or with a fine or both.

Section 9: ‘Offence relating to bribing a public servant by a commercial organization’

Offence: A public servant who accepts or obtains any bribe as a motive or reward for showing favor or disfavor in the exercise of official functions. 

Penalty: If a person in charge of a commercial organization committing an offence under Section 9 of the Act is found to be guilty then the offender 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,” as mentioned in Section 10 of the Act.

Section 11: ‘Public servant obtaining [undue advantage], without consideration from person concerned in proceeding or business transacted by such public servant’

Offence: A public servant who, by corrupt or illegal means, obtains any valuable thing without any consideration from a person who is concerned in any proceeding or business transacted by such public servant.

Penalty: Imprisonment for a term not less than six months, which may extend to five years, and a fine.

Section 13: ‘Criminal misconduct by a public servant’

Offence: A public servant who, by corrupt or illegal means, obtains any pecuniary advantage for himself or any other person or possesses assets disproportionate to his known sources of income. Section 13 states that “A public servant is said to commit the offence of criminal misconduct, (a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or (b) if he intentionally enriches himself illicitly during the period of his office.”

Penalty: Imprisonment for a term not less than four years, which may extend to ten years, and a fine. 

Apart from this, Section 12 of the Prevention of Corruption Act, 1988, states that “Whoever abets any offence punishable under this Act, whether or not that offence is committed in consequence of that abetment, 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.” Also, in Section 14 of the Prevention of Corruption Act, 1988, habitual offenders are punished with imprisonment for a term not less than 5 years, which may extend to 10 years, and are liable to fine. 

Investigations

Investigation of corruption cases is done by a police officer, Section 17 of the Prevention of Corruption Act, 1988, illustrates powers authorized to investigate the cases. It states that “no police officer below the rank, (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) in the metropolitan areas of Bombay, Calcutta, Madras, and Ahmedabad and in any other metropolitan area…, of an Assistant Commissioner of Police; and (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant.” It means that no officer other than approved officials can conduct investigations or make arrests until an order is obtained from the Metropolitan Magistrate or Magistrate of First Class. 

The higher rank officials including the Central Bureau of Investigation (CBI), state Anti-Corruption Bureaus (ACBs), and Vigilance Departments investigate corruption cases. These agencies possess wide-ranging powers, such as search and seizure, interception of communications, and the authority to arrest individuals suspected of corrupt practices.  The CBI is a premier investigative agency with jurisdiction over corruption cases involving central government employees and public servants. State ACBs are responsible for investigating corruption cases within their respective states. Additionally, Vigilance Departments in various government departments and organizations have the authority to probe corruption allegations against their own employees. These authorized entities play a crucial role in uncovering corruption, gathering evidence, and initiating legal proceedings against the accused.

Apart from this, there are certain restrictions related to the investigation in some cases which are mentioned under Section 17A of the Amendment Act, 2018. It illustrates that no police officer can investigate the case if it involves a decision/recommendation made by a public servant in the course of his official responsibilities. If such an investigation is to be performed then the approval of the Central Government involving Union matters and State Government involving state affairs is required.


 

Attachment of Property

Section 17C of the Act empowers authorities to take action to prevent the disposal or transfer of properties that are suspected to be proceeds of corruption or linked to corrupt practices. The Act allows for the attachment of any property, both movable and immovable, which is believed to be the proceeds of corruption or connected to corrupt activities. This includes assets acquired through illegal gratification or disproportionate to the known sources of income. As defined in the Act, the competent authority has the power to initiate the attachment proceedings. This authority is usually a designated officer or an agency responsible for investigating corruption cases, such as the Central Bureau of Investigation (CBI) or state Anti-Corruption Bureaus (ACBs). 

Forfeiture of Property

According to Section 18A of the Prevention of Corruption Act, 1988, the attachment and forfeiture of property is performed under the provisions of the Criminal Law Amendment Ordinance, 1944. In context with this Act, the references to ‘District Judge’ in the Criminal Law Amendment Ordinance, 1944 are construed as references to ‘Special Judge’. 

Related Case Laws

Conclusion

The Prevention of Corruption Act of 1988 has significantly contributed to India's fight against corruption. By providing a robust legal framework, defining offenses, and establishing stringent penalties, the Act has helped hold corrupt individuals accountable. While the Act has been instrumental in curbing corruption, challenges persist. These challenges include the need for better coordination among investigative agencies, reducing delays in trials, and addressing the issue of political interference in corruption cases. Additionally, there is a growing recognition of the importance of preventive measures and ethical conduct in complementing punitive actions. However, continuous efforts are necessary to address the challenges and strengthen the Act's implementation. It is crucial to promote a culture of integrity and transparency to complement legal measures and foster a corruption-free society. 

1. Is the Prevention of Corruption Act, 1988 applicable to private sectors?
2. What is the maximum penalty for Criminal misconduct by a public servant?



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