मोदी जी आप के
हाथो यह क्या होने जा रहा है ?
क्या भ्रष्टाचारियो
को जो संरक्षण किसी सरकार में नहीं मिल
पाया वह मोदी सरकार में मिलेगा ?
अन्ना जी एक बार
समुद्र मंथन करके आपने केजरीवाल को निकाला और अब खुद असंतुष्ट अनुभव कर रहे है ,
क्या अब मोदी की तारीफ कर उनके द्वारा बनाए जा रहे भ्रष्टाचार समर्थक कानूनों का कलंक
झेलने को आप मानसिक रूप से तैयार है ?
रसखान ने लिखा है –
“ताहि अहीर की छोहरियां छछिया भरि छाछ पै नाच
नचावै” –
यह
पंक्ति आई.ए.एस पर चरितार्थ होती है I क्या IAS ने मोदी को अपने इशारे पर नचाना
चालू कर दिया है जो ऐसा आत्मघाती कदम उठाने जा रहे है ?
भ्रष्टाचारियो को संरक्षण प्रदान करने के लिए
मोदी सरकार द्वारा उठाये जा रहे कदमो के अभिलेखीय साक्ष्य का प्रस्तुतीकरण ---
भ्रष्टाचार निवारण
संशोधन बिल पर रिपोर्ट 29 अप्रैल तक
संबंधी विधेयक का
परीक्षण कर रही संसदीय समिति का कार्यकाल अप्रैल अंत तक के लिए बढ़ा दिया गया है।
नई दिल्ली। भ्रष्टाचार निवारण अधिनियम 1988 में संशोधन करने संबंधी विधेयक का परीक्षण कर
रही संसदीय समिति का कार्यकाल अप्रैल अंत तक के लिए बढ़ा दिया गया है। राज्यसभा की
प्रवर समिति के अध्यक्ष अनिल माधव दवे ने यह जानकारी दी है।
बकौल दवे, "समिति को अपनी रिपोर्ट सौंपने के लिए 29 अप्रैल तक का समय मिल गया है। हम उक्त तिथि तक
राज्य सभा के सभापित को रिपोर्ट सौंप देंगे।" उच्च सदन की प्रवर समिति
भ्रष्टाचार निवारण संशोधन विधेयक का परीक्षण कर रही है। समिति को यह बिल पिछले
वर्ष 7 दिसंबर को भेजी गई थी।
पुलिस के हाथ बंधे
इस विधेयक के तहत
यह प्रावधान किया गया है कि भ्रष्टाचार के आरोपी किसी रिटायर्ड या कार्यरत नौकरशाह
के खिलाफ कारवाई शुरू करने से पहले या पुलिस के लिए पूर्व अनुमति हासिल करना
अनिवार्य होगा। प्रस्तावित बिल में साफ कहा गया है, "लोकपाल (केंद्रीय कर्मचारियों के संबंध में) और
लोकायुक्त (राज्य सरकार के कर्मियों के संबंध में) की पूर्व अनुमति के बगैर कोई भी
पुलिस अधिकारी भ्रष्टाचार निवारण अधिनियम के अंतर्गत अपराध के आरोपी सरकारी अफसर
के खिलाफ जांच नहीं शुरू करेगा।" हालांकि अभी केंद्रीय स्तर पर लोकपाल और
राज्यों में लोकायुक्त का गठन होना बाकी है।
सुप्रीम कोर्ट ने
अनुचित कहा
उल्लेखनीय है कि
सुप्रीम कोर्ट ने 2014
में ऐसे ही एक
कानूनी प्रावधान को अनुचित और असंवैधानिक करार दिया है। इसके तहत के लिए यह
अनिवार्य है कि वह संयुक्त सचिव या उससे ऊपर के स्तर के अफसर के खिलाफ भ्रष्टाचार
के मामलों की जांच के लिए सक्षम अधिकारी से पूर्व अनुमति हासिल करे।
लोकपाल से पूर्व
अनुमति जरूरी
शीर्ष अदालत ने
दिल्ली स्पेशल पुलिस इस्टेबिलिशमेंट (डीएसपीई) एक्ट की धारा 6ए के औचित्य पर अपना फैसला सुनाते हुए कहा था, "भ्रष्ट सरकारी कर्मचारी चाहे बड़ा हो या छोटा, दोनों एक ही सिक्के के दो पहलू हैं। इनसे एक
समान कड़ाई से निपटना होगा।" प्रस्तावित विधेयक के प्रावधान के तहत सीबीआई या
पुलिस को पहले भ्रष्टाचार के मामलों की सूचना लोकपाल और लोकायुक्त को देनी होगी।
इसमें रिश्वत लेने और देने वाले दोनों की सजा का प्रावधान है।
संप्रग कार्यकाल से
हो रही कोशिश
संशोधन विधेयक को
संप्रग सरकार ने 19 अगस्त, 2013 को पहली बार पेश किया था। लेकिन पारित नहीं हो सका। फिर 29 अप्रैल, 2015 को मोदी सरकार ने इसे अपनाया और संसद में पेश किया। जहां से उसे प्रवर समिति
को भेज दिया गया।
- See more at:
http://www.jagran.com/news/national-report-on-prevention-of-corruption-amendment-will-be-till-29-april-13685474.html#sthash.eLzEvMiw.dpuf
Legislative Brief The Prevention of Corruption (Amendment)
Bill, 2013 and proposed 2015 amendments The Prevention of Corruption
(Amendment) Bill, 2013 was introduced in Rajya Sabha on August 19, 2013. It was
referred to the Standing Committee on Personnel, Public Grievances, Law which
submitted its Report on February 6, 2014. Further amendments to the Bill were
circulated by the government on November 27, 2015. The Bill was then referred
to a Select Committee of Rajya Sabha on December 11, 2015. The Committee is
expected to submit its report on April 29, 2016. Highlights of the Bill The Prevention of Corruption (Amendment)
Bill, 2013 amends the®
Prevention of Corruption Act, 1988. Certain amendments to the Bill were
circulated by the government in 2015.
The 1988 Act defines taking a bribe by a public servant as accepting® any reward other than a
salary for performing one’s official act. The 2015 amendments replace this to
cover acts where a public servant accepts any undue advantage other than legal
remuneration. Anyone who performs his public function honestly would not be
penalised. Under the Act, a bribe giver
is charged with abetment. The 2013 Bill®
makes giving a bribe to a public servant a direct offence. The 2015 amendments
add that if a person gives a bribe to assist law enforcement authorities, he
will not be punished. The Act defines
criminal misconduct to covers six types of offences® including: (i) abuse of
position; (ii) use of illegal means; (iii) disregard to public interest. The
2013 Bill retains only two offences: (i) misappropriating property; and (ii)
amassing disproportionate assets. Under
the 2015 amendments, prior sanction from the Lokpal or® Lokayukta must be obtained
before investigating a public servant. Key Issues and Analysis A public servant will not be charged with
taking a bribe if he proves®
that he did not ‘perform his public functions dishonestly’. As this term has
not been defined, the circumstances under which a public servant’s actions
would qualify as ‘honest’ is unclear.
The 2013 Bill makes giving a bribe a direct offence. There are® diverging views on
whether bribe giving under all circumstances must be penalised. Some have
argued that a coerced bribe giver must be distinguished from a collusive bribe
giver. The requirement of prior sanction
for investigation may be considered®
necessary to protect a public servant from harassment. However, it could delay
investigation into genuine cases of corruption. The Supreme Court had also
observed that such a provision could affect the efficiency of the investigation
process. The Lokpal, and Lokayuktas in
some states, have not been constituted.®
This may affect the obtaining of prior sanction for investigation. Recent
Briefs: Consumer Protection Bill, 2015 February 4, 2016 Electricity (Amendment)
Bill, 2014 November 24, 2015 Prianka Rao prianka@prsindia.org March 23, 2016
The Prevention of Corruption (Amendment) Bill, 2013 and proposed 2015
amendments PRS Legislative Research March 23, 2016 - 2 - PART A: HIGHLIGHTS OF
THE BILL Context The primary law that regulates corruption related offences by
public servants is the Prevention of Corruption Act, 1988. The 1988 Act covers
offences like that of taking a bribe, criminal misconduct (including amassing
of disproportionate assets) by a public servant, and mandates prior government
sanction for prosecution. Over the years, expert bodies such as the 2nd
Administrative Reforms Commission and the Law Commission of India examined the
1988 Act and suggested changes to it.1, 2 This included inclusion of the
offence of bribe giving, limiting prior sanction for prosecution to certain
cases, and the procedure for attachment of property of public servants accused
of corruption. Subsequently, in 2008, a Bill to amend the 1988 Act was
introduced in Parliament. The Bill sought to extend the requirement of prior
sanction for prosecution to former public servants, and provide for attachment
of property. However, it lapsed with the dissolution of the 14th Lok Sabha. 3
In 2011, India ratified the United Nations Convention against Corruption
(UNCAC), 2005 and agreed to bring its domestic laws in line with the UNCAC. 4
The UNCAC covers giving and taking a bribe, illicit enrichment and possession
of disproportionate assets by a public servant as offences, addresses bribery
of foreign public officials, and bribery in the private sector. In August 2013,
the Prevention of Corruption (Amendment) Bill, 2013 was introduced in
Parliament to amend the 1988 Act. The Statement of Objects and Reasons of the
Bill states that it was introduced to bring the 1988 Act in line with the
UNCAC. The Standing Committee submitted its report on the Bill in February
2014.5 Subsequently, in November 2014, the central government referred certain
amendments to the 2013 Bill to the Law Commission of India which submitted its
report in February 2015.6 In November 2015, the government circulated
amendments to the 2013 Bill, which were then referred to a Select Committee of
Rajya Sabha. Key Features The 2013 Bill amends various provisions of the
Prevention of Corruption Act, 1988. The government circulated further amendments
to the 2013 Bill, in November 2015. The Table compares the 1988 Act with the
provisions of the 2013 Bill as modified by the 2015 amendments. Table 1: Key
changes proposed in the Bill compared with provisions of the Act: Key Features
Prevention of Corruption Act, 1988 Prevention of Corruption (Amendment) Bill,
2013 [as modified by the 2015 amendments] Definition of a ‘bribe’ Undue advantage which is any gratification
other than§ Any
reward other than a salary. §
legal remuneration. Acts that qualify as taking a bribe by a public servant
Covers any of the following acts:
Accepting or attempting to obtain any reward, other§ than a salary. Accepting a reward to favour or disfavour
anyone.§ Accepting a reward from another person to§ exercise personal
influence over a public servant. Covers any of the following acts: Attempting to obtain or obtaining, or
accepting an undue§
advantage; Attempting to obtain or
obtaining, or accepting an undue§
advantage, i) with the intention of, or ii) as a reward for, or iii) before or
after, the improper performance of a public function. Exceptions to taking a
bribe If a person does not perform a
public function§ No
provision. §
dishonestly, it would not qualify as taking a bribe. Giving a bribe to a public
servant No specific provision.§ Covered under the provision of abetment.§ If a bribe giver makes a statement in court
that he§ gave
a bribe it would not be used to prosecute him for the offence of abetment. Offering or giving an undue advantage to
another person,§
intending to: i) induce, or ii) reward, the public official to perform his
public duty improperly; or Offering an
undue advantage to a public official, knowing§
that such acceptance would qualify as performing his public duty improperly; A person would not have committed the offence
of bribe§
giving if he did so, after informing a law enforcement authority, to assist in
its investigation of a public servant. Giving a bribe by a commercial
organisation to a public servant No
specific provision.§ Covered under the provision of abetment.§ Offering a reward for obtaining or retaining
any§ advantage in business.
The Prevention of Corruption (Amendment) Bill, 2013 and proposed 2015
amendments PRS Legislative Research March 23, 2016 - 3 - Key Features
Prevention of Corruption Act, 1988 Prevention of Corruption (Amendment) Bill,
2013 [as modified by the 2015 amendments]
Central government to prescribe guidelines for adequate§ procedures for commercial
organisations to prevent bribing of public servants. If a commercial organisation is held guilty
of giving a§
bribe, and it is proved that it was committed with the consent of the director,
manager, secretary etc., they will be punished.
Covers a public servant abetting an of§Abetment
fence related to influencing another public servant. Covers any person abetting offences like: i)
taking§ a bribe and ii) obtaining
a valuable thing from a person engaged with in a business transaction. Covers abetment by any person for all
offences;§ Excludes the offence of attempting to
misappropriate§
property (covered under criminal misconduct). Criminal Misconduct by a public
servant Covers 6 types of offences:
Fraudulent misappropriation of property in the§ control of a public
servant. Possession of monetary
resources or property§
disproportionate to known sources of income.
Habitually taking a bribe or valuable thing for free.§ Obtaining a valuable thing or reward
illegally.§ Abuse of position to obtain a valuable thing
or§ monetary reward. Obtaining valuable thing or monetary reward§ without public interest.
Covers 2 types of offences: Fraudulent
misappropriation of property entrusted to a§
public servant. Intentional enrichment
by illicit means during the period§
of office. This would involve amassing resources disproportionate to one’s
known sources of income. [It shall be presumed that the person intentionally
enriched himself.] Habitual Offender
Habitually taking a reward to either influence a§ public servant or abet in the
taking of a bribe. The committing of any
offence under the Act by a person§
who has previously been convicted. Presumption of guilt Trivial rewards The guilt of the accused would be presumed
for§ the following 3 offences:
i) taking a bribe, ii) being a habitual offender and iii) for abetting an
offence. Such a presumption of guilt
would not apply if the§
reward obtained is considered ‘trivial’ by the court. The guilt of the accused would be presumed
only for the§
offence of taking a bribe. The provision
related to trivial rewards has been omitted.§
Attachment and forfeiture of property
The provisions of the Criminal Law Amendment§ Not provided in the Act. § Ordinance, 1944 would
apply. In place of a District Judge (as
in the Ordinance), cases§
will be referred to a Special Judge. Prior approval for investigation Before a police officer conducts any
investigation into an§
Not provided in the Act. §
offence alleged to have been committed by a public servant, prior approval of
Lokpal/lokayukta to be taken. Such
approval would not be necessary in certain cases§
which involves the arrest of a person on the spot on the charge of taking a
bribe, either for himself or another. Prior sanction for prosecution The prior sanction from the appropriate
authority§ is
required for prosecution of public servants.
Extends the requirement of prior sanction to former§ public servants, for any
act committed in office. Time period for trial of cases Trial by special judge to be completed within
2 years.§ No
time period mentioned. § If not, reasons for the delay must be
recorded, for every§ six
months of extension of time obtained.
Total period for completion of trial not to exceed 4 years.§ Penalties*: Habitual§
offender Criminal§ Misconduct Taking/giving a§
bribe, abetment Imprisonment of five
years-10 years and a fine.§ Imprisonment of four years-10 years and a
fine.§ Imprisonment of three years-seven years and a§ fine. Same as the 1988 Act, for all offences.§ Sources: Prevention of
Corruption Act, 1988; Prevention of Corruption (Amendment) Bill, 2013; Notice
of Amendments, Rajya Sabha, November 27, 2015; PRS. The Prevention of
Corruption (Amendment) Bill, 2013 and proposed 2015 amendments PRS Legislative
Research March 23, 2016 - 4 - PART B: KEY ISSUES AND ANALYSIS Taking a bribe
not an offence if person performs actions honestly Under the 1988 Act, as well
as the 2013 Bill and 2015 amendments, if a public servant takes an undue
advantage for performing his public function improperly, he would be punished.
However, the 2015 amendments create an exception. It states that if a public
servant ‘does not perform a public function or activity dishonestly’, he would
not be committing an offence. This implies that if a public servant charged
with taking a bribe proved that he performed his public functions honestly, he
would not have committed the offence. The meaning and implications of this
provision is unclear. The 2015 amendments define terms like ‘undue advantage’
and what would constitute ‘improper performance of a public function’. However,
the term ‘performance of a public function dishonestly’ has not been defined in
the 1988 Act, the 2013 Bill or the 2015 amendments. In the absence of a
definition of what could constitute ‘dishonest performance of a public
function’, the types of actions of a public servant that would qualify as
‘honest’ would be wide and open to interpretation. This could include actions
that are at variance with the purpose of the Act. For example, let us consider
a scenario where a public servant accepts five thousand rupees from a person
for expediting his ration card application. However, after accepting this
money, the public servant does not expedite it. Instead, he processes the
application in a routine manner. The question is whether the public servant can
still invoke the defence that he performed his public function ‘honestly’ as he
followed the prescribed procedure and processed the application in a routine
manner. Note that this clause was not part of the official amendments that were
examined by the Law Commission, in its February 2015 report.6 Requirement of
prior sanction for investigation of a public official The requirement of prior
sanction may not be necessary at the stage of investigation The 2015 amendments
amend the 1988 Act to provide that prior sanction will have to be obtained for
the investigation of a public servant. The provision states that before a
police officer can begin any investigation into an offence under the Act, prior
approval of the Lokpal or Lokayukta must be taken. Such approval would not be
necessary in cases of arrest of a person on the spot for taking a bribe.
Typically, a criminal investigation includes verification of facts and
circumstances and collection of evidence, to decide whether there is a case for
prosecuting the accused. 7 In the absence of such preliminary information being
made available to the Lokpal, the basis on which it would take a decision to
grant sanction for investigation is unclear. The rationale for requiring prior
sanction is to protect public servants from harassment. However, it could
result in delays in investigation and prosecution of genuine cases of
corruption. Under the 1988 Act, prior sanction must be obtained at the stage of
prosecution of the public servant. Requiring prior sanction for investigation
too, raises the question whether this protection is necessary at two stages,
i.e. investigation and prosecution. Note that the 2nd Administrative Reforms
Commission recommended that the use of prior sanction be limited, even at the
stage of prosecution. It stated that it may not be necessary for cases (i)
where a public servant has been trapped red-handed; or (ii) of possession of
assets disproportionate to known sources of income.1 Supreme Court had observed
that prior sanction for investigation could affect its efficiency The
requirement of prior sanction in the 2015 amendments could also be at variance
with the observations of the Supreme Court on prior sanction for
investigation.8 The only law that contained a similar provision of prior
sanction for investigation was the Delhi Special Police Establishment Act,
1946. The 1946 Act required the CBI to obtain prior approval from the central
government for investigation against a public official of the rank of Joint
Secretary and above. (This provision was struck down by the Court on the
grounds that differentiating between two classes of public servants violates
Article 14 of the Constitution.) The Court also observed that such a provision
would impede an unhampered, unbiased, efficient and fearless investigation.8
Act: Section 7 2015 amendments: Clause 3 2015 Amendments: Clause 8B The
Prevention of Corruption (Amendment) Bill, 2013 and proposed 2015 amendments
PRS Legislative Research March 23, 2016 - 5 - Lokpal and some Lokayuktas have
not been constituted The 2015 amendments state that the Lokpal or the Lokayukta
will be the appropriate authority for granting of prior sanction for
investigation. However, the Lokpal, and Lokayuktas, in some states such as West
Bengal and Tamil Nadu, have not been constituted. This may affect the obtaining
of sanction for investigation in relation to a complaint against a public
servant. The inclusion of giving a bribe as a specific offence Bribe giving
under all circumstances to be criminalised Under the 1988 Act, a bribe giver
may be penalised for abetting the offence of taking a bribe. Under the 2013
Bill and 2015 amendments, giving a bribe, directly or through a third party, is
made an offence. Further, illustrations in the 2015 amendments clarify that a
bribe given to process a routine entitlement (like a ration card) or to obtain
an unfair advantage (securing a license over other bidders) will both be
treated as offences under this provision. The punishment for giving a bribe
under all circumstances is the same as that of taking a bribe, which is three
to seven years’ imprisonment, and a fine. Several experts have examined the
issue of whether bribe giving under all circumstances should be made an offence
under the 1988 Act. The United Nations Convention against Corruption (UNCAC)
states that giving a bribe, either directly or indirectly, should be made a
punishable offence.9 India has ratified the UNCAC. 4 However, some experts have
stressed the need to distinguish between bribe givers based on the
circumstances under which they give a bribe. In 2007, the report of the Second
Administrative Reforms Commission recommended that the 1988 Act must
distinguish between coercive and collusive bribe givers. This implies that
individuals who are coerced into giving a bribe for obtaining an entitlement (a
ration card) may be treated differently from those who act in collusion with
the bribe taker to obtain an undue advantage (securing a license over other
bidders).1 The Standing Committee that examined the 2013 Bill had expressed a
similar view.5 Protection to bribe giver under certain circumstances Under the
1988 Act, if a bribe giver makes a statement in court that he gave a bribe it
would not be used to prosecute him for the offence of abetment. The 2015
amendments replace this provision. It states that if someone gives a bribe
after informing law enforcement authorities, in order to assist them in their
investigation against the bribe taker, he will not be charged with bribe
giving. This may not address situations where a person is forced to pay a bribe
for an entitlement, and subsequently reports the matter to the authorities. The
Standing Committee that examined the 2013 Bill noted that individuals who
report the matter after the payment of a bribe in normal circumstances may be
distinguished from those who a pay a bribe in compelling emergent situations.
While in the former case no protection (from punishment) is necessary, in the
latter situation the court may take a decision based on facts and circumstances
of the case.5 Further, the then Chief Economic Adviser made an argument that
giving immunity to a “harassed bribe giver” would incentivise him to report the
incident.10 Certain offences under criminal misconduct modified Under the 1988
Act, criminal misconduct by a public servant covers six types of offences,
including: i) using illegal means to obtain any valuable thing or monetary
reward for himself or any other person; ii) abusing his position as a public
servant to obtain a valuable thing or monetary reward for himself or any other
person; and iii) obtaining a valuable thing or monetary reward without public
interest for any person. The 2013 Bill redefines criminal misconduct by a
public servant to only include: i) fraudulent misappropriation of property
under one’s control, and ii) intentional illicit enrichment and possession of
disproportionate assets. In doing so, the 2013 Bill no longer covers the three
circumstances in the 1988 Act under the offence of criminal misconduct. It is
unclear why these elements have been omitted in the Bill. Note that the 2015
amendment list includes two of the three offences (except ‘obtaining a valuable
thing or monetary reward without public interest’) under the 1988 Act that were
deleted in the 2013 Bill. However, these elements have been included under the
offence of taking a bribe, and not criminal misconduct. The punishment for the
offence of taking a bribe, which is three to seven years’ imprisonment, is
lower than that for criminal misconduct, which is four to 10 years’
imprisonment. Act: Section 13 (1) (d) Bill: Clause 6 2015 amendments: Clause 3,
Explanation 2 Act: Section 12 Bill: Clause 3 2015 amendments: Clause 3 Act:
Section 24 2015 amendments: Clause 3 2015 amendments: Clause 8 B The Prevention
of Corruption (Amendment) Bill, 2013 and proposed 2015 amendments PRS
Legislative Research March 23, 2016 - 6 - Offences for which the guilt of the
accused is presumed The burden of proof on accused person only for taking a
bribe Under the 1988 Act, for certain offences like taking a bribe, habitual
offender and abetment, the burden of proof is on the accused. The 2013 Bill
amends this provision to transfer the burden of proof onto the accused only in
the case of taking a bribe. The Bill seeks to treat the taking and giving of a
bribe in a similar manner, in relation to punishment for both offences.
Therefore, it is unclear why the burden of proof is on the accused person only
for the offence of taking a bribe. The Table below captures the shift in
relation to burden of proof from the 1988 Act to the 2013 Bill. Table 2: Burden
of proof for certain offences under the 1988 Act and 2013 Bill Offence 1988 Act
2013 Bill Taking a bribe On the accused. On the accused. Giving a bribe Not a
direct offence (covered under abetment). On the prosecution. Abetment On the
accused. On the prosecution. Habitual offender On the accused. On the
prosecution. Sources: The Prevention of Corruption Act, 1988; Prevention of
Corruption Bill, 2013; PRS. Trivial rewards not exempt Under the 1988 Act, if
the reward obtained by the public servant is considered as ‘trivial’ by the
court, then it shall not be presumed as an act of corruption. This provision
has been omitted in the Bill and 2015 amendments. Establishing of intention for
possession of disproportionate assets Under the 1988 Act, the offence of
possessing disproportionate assets requires the existence of disproportionate
monetary resources or property in the public servant’s possession. The 2013
Bill modifies this provision. To establish that the public servant had
disproportionate assets, it has to be proven that: i) he possesses monetary
resources or property disproportionate to his known sources of income, and ii)
his intention to enrich himself illicitly. Thus, by requiring that the
intention of the public servant to acquire disproportionate assets be
established, in addition to the existence of assets itself, the Bill is raising
the threshold for proving the offence. The Standing Committee had observed that
the inability of the public servant to explain the source of the
disproportionate assets is sufficient for prosecution, and recommended removing
‘intention’ from the provision. 5 Note that this issue has been addressed by
the 2015 amendments, as it removes the requirement of intention. Comparison
with the UN Convention against Corruption (UNCAC), 2005 According to the
Statement of Objects and Reasons of the 2013 Bill, the amendments to the Act
were introduced to bring it in line with the UNCAC, 2005. However, certain
provisions of the UNCAC have not been included in the 2013 Bill or the proposed
2015 amendments. These include: i) giving a bribe to a foreign public servant;
ii) taking a bribe by a private sector entity; and (iii) compensation for those
aggrieved by acts of corruption.4 1. ‘Ethics in Governance’, Fourth Report,
Second Administrative Reforms Commission, January 2007. 2. The Corrupt Public
Servants (Forfeiture of Property) Bill, 166th Report, Law Commission of India,
February 1999. 3. The Prevention of Corruption (Amendment) Bill, 2008. 4.
United Nations Convention Against Corruption, United Nations Office on Drugs
and Crime, United Nations, 2005. 5. ‘Prevention of Corruption (Amendment) Bill,
2013’, 69th Report, Standing Committee on Law and Justice, February 2014. 6.
‘Prevention of Corruption (Amendment) Bill, 2013’, Report No. 254, Law
Commission of India, February, 2015. 7. H.N. Rishbud and Inder Singh vs. The
State of Delhi, AIR 1955 SC 196; Central Bureau of Investigation Manual, 2005.
8. Subramaniam Swamy vs. Director, CBI, (2014) 8 SCC 682, (paragraph 59). 9.
Article 15, Bribery of National Public official, United Nations Convention
Against Corruption, 2005. 10. “Why for a class of bribes, the act of giving a
bribe should be treated as legal”, Kaushik Basu, Chief Economic Adviser,
Ministry of Finance, 2011. DISCLAIMER: This document is being furnished to you
for your information. You may choose to reproduce or redistribute this report
for non-commercial purposes in part or in full to any other person with due acknowledgement
of PRS Legislative Research (“PRS”). The opinions expressed herein are entirely
those of the author(s). PRS makes every effort to use reliable and
comprehensive information, but PRS does not represent that the contents of the
report are accurate or complete. PRS is an independent, not-for-profit group.
This document has been prepared without regard to the objectives or opinions of
those who may receive it.
Legislative Brief The Prevention of Corruption (Amendment)
Bill, 2013 and proposed 2015 amendments The Prevention of Corruption
(Amendment) Bill, 2013 was introduced in Rajya Sabha on August 19, 2013. It was
referred to the Standing Committee on Personnel, Public Grievances, Law which
submitted its Report on February 6, 2014. Further amendments to the Bill were
circulated by the government on November 27, 2015. The Bill was then referred
to a Select Committee of Rajya Sabha on December 11, 2015. The Committee is
expected to submit its report on April 29, 2016. Highlights of the Bill The Prevention of Corruption (Amendment)
Bill, 2013 amends the®
Prevention of Corruption Act, 1988. Certain amendments to the Bill were
circulated by the government in 2015.
The 1988 Act defines taking a bribe by a public servant as accepting® any reward other than a
salary for performing one’s official act. The 2015 amendments replace this to
cover acts where a public servant accepts any undue advantage other than legal
remuneration. Anyone who performs his public function honestly would not be
penalised. Under the Act, a bribe giver
is charged with abetment. The 2013 Bill®
makes giving a bribe to a public servant a direct offence. The 2015 amendments
add that if a person gives a bribe to assist law enforcement authorities, he
will not be punished. The Act defines criminal
misconduct to covers six types of offences®
including: (i) abuse of position; (ii) use of illegal means; (iii) disregard to
public interest. The 2013 Bill retains only two offences: (i) misappropriating
property; and (ii) amassing disproportionate assets. Under the 2015 amendments, prior sanction
from the Lokpal or®
Lokayukta must be obtained before investigating a public servant. Key Issues
and Analysis A public servant will not
be charged with taking a bribe if he proves®
that he did not ‘perform his public functions dishonestly’. As this term has
not been defined, the circumstances under which a public servant’s actions
would qualify as ‘honest’ is unclear.
The 2013 Bill makes giving a bribe a direct offence. There are® diverging views on whether
bribe giving under all circumstances must be penalised. Some have argued that a
coerced bribe giver must be distinguished from a collusive bribe giver. The requirement of prior sanction for
investigation may be considered®
necessary to protect a public servant from harassment. However, it could delay
investigation into genuine cases of corruption. The Supreme Court had also
observed that such a provision could affect the efficiency of the investigation
process. The Lokpal, and Lokayuktas in
some states, have not been constituted.®
This may affect the obtaining of prior sanction for investigation. Recent
Briefs: Consumer Protection Bill, 2015 February 4, 2016 Electricity (Amendment)
Bill, 2014 November 24, 2015 Prianka Rao prianka@prsindia.org March 23, 2016
The Prevention of Corruption (Amendment) Bill, 2013 and proposed 2015
amendments PRS Legislative Research March 23, 2016 - 2 - PART A: HIGHLIGHTS OF
THE BILL Context The primary law that regulates corruption related offences by
public servants is the Prevention of Corruption Act, 1988. The 1988 Act covers
offences like that of taking a bribe, criminal misconduct (including amassing
of disproportionate assets) by a public servant, and mandates prior government
sanction for prosecution. Over the years, expert bodies such as the 2nd
Administrative Reforms Commission and the Law Commission of India examined the
1988 Act and suggested changes to it.1, 2 This included inclusion of the
offence of bribe giving, limiting prior sanction for prosecution to certain
cases, and the procedure for attachment of property of public servants accused
of corruption. Subsequently, in 2008, a Bill to amend the 1988 Act was
introduced in Parliament. The Bill sought to extend the requirement of prior
sanction for prosecution to former public servants, and provide for attachment
of property. However, it lapsed with the dissolution of the 14th Lok Sabha. 3
In 2011, India ratified the United Nations Convention against Corruption
(UNCAC), 2005 and agreed to bring its domestic laws in line with the UNCAC. 4
The UNCAC covers giving and taking a bribe, illicit enrichment and possession
of disproportionate assets by a public servant as offences, addresses bribery
of foreign public officials, and bribery in the private sector. In August 2013,
the Prevention of Corruption (Amendment) Bill, 2013 was introduced in
Parliament to amend the 1988 Act. The Statement of Objects and Reasons of the
Bill states that it was introduced to bring the 1988 Act in line with the
UNCAC. The Standing Committee submitted its report on the Bill in February
2014.5 Subsequently, in November 2014, the central government referred certain
amendments to the 2013 Bill to the Law Commission of India which submitted its
report in February 2015.6 In November 2015, the government circulated
amendments to the 2013 Bill, which were then referred to a Select Committee of
Rajya Sabha. Key Features The 2013 Bill amends various provisions of the
Prevention of Corruption Act, 1988. The government circulated further
amendments to the 2013 Bill, in November 2015. The Table compares the 1988 Act
with the provisions of the 2013 Bill as modified by the 2015 amendments. Table
1: Key changes proposed in the Bill compared with provisions of the Act: Key
Features Prevention of Corruption Act, 1988 Prevention of Corruption
(Amendment) Bill, 2013 [as modified by the 2015 amendments] Definition of a
‘bribe’ Undue advantage which is any
gratification other than§
Any reward other than a salary. §
legal remuneration. Acts that qualify as taking a bribe by a public servant
Covers any of the following acts:
Accepting or attempting to obtain any reward, other§ than a salary. Accepting a reward to favour or disfavour
anyone.§ Accepting a reward from another person to§ exercise personal
influence over a public servant. Covers any of the following acts: Attempting to obtain or obtaining, or
accepting an undue§
advantage; Attempting to obtain or
obtaining, or accepting an undue§
advantage, i) with the intention of, or ii) as a reward for, or iii) before or
after, the improper performance of a public function. Exceptions to taking a
bribe If a person does not perform a
public function§ No
provision. §
dishonestly, it would not qualify as taking a bribe. Giving a bribe to a public
servant No specific provision.§ Covered under the provision of abetment.§ If a bribe giver makes a statement in court
that he§ gave
a bribe it would not be used to prosecute him for the offence of abetment. Offering or giving an undue advantage to
another person,§
intending to: i) induce, or ii) reward, the public official to perform his
public duty improperly; or Offering an
undue advantage to a public official, knowing§
that such acceptance would qualify as performing his public duty
improperly; A person would not have committed
the offence of bribe§
giving if he did so, after informing a law enforcement authority, to assist in
its investigation of a public servant. Giving a bribe by a commercial
organisation to a public servant No
specific provision.§ Covered under the provision of abetment.§ Offering a reward for obtaining or retaining
any§ advantage in business.
The Prevention of Corruption (Amendment) Bill, 2013 and proposed 2015
amendments PRS Legislative Research March 23, 2016 - 3 - Key Features
Prevention of Corruption Act, 1988 Prevention of Corruption (Amendment) Bill,
2013 [as modified by the 2015 amendments]
Central government to prescribe guidelines for adequate§ procedures for commercial
organisations to prevent bribing of public servants. If a commercial organisation is held guilty
of giving a§
bribe, and it is proved that it was committed with the consent of the director,
manager, secretary etc., they will be punished.
Covers a public servant abetting an of§Abetment
fence related to influencing another public servant. Covers any person abetting offences like: i)
taking§ a bribe and ii) obtaining
a valuable thing from a person engaged with in a business transaction. Covers abetment by any person for all
offences;§ Excludes the offence of attempting to misappropriate§ property (covered under
criminal misconduct). Criminal Misconduct by a public servant Covers 6 types of
offences: Fraudulent misappropriation of
property in the§
control of a public servant. Possession
of monetary resources or property§
disproportionate to known sources of income.
Habitually taking a bribe or valuable thing for free.§ Obtaining a valuable thing or reward
illegally.§ Abuse of position to obtain a valuable thing
or§ monetary reward. Obtaining valuable thing or monetary reward§ without public interest.
Covers 2 types of offences: Fraudulent
misappropriation of property entrusted to a§
public servant. Intentional enrichment
by illicit means during the period§
of office. This would involve amassing resources disproportionate to one’s
known sources of income. [It shall be presumed that the person intentionally
enriched himself.] Habitual Offender
Habitually taking a reward to either influence a§ public servant or abet in the
taking of a bribe. The committing of any
offence under the Act by a person§
who has previously been convicted. Presumption of guilt Trivial rewards The guilt of the accused would be presumed
for§ the following 3 offences:
i) taking a bribe, ii) being a habitual offender and iii) for abetting an
offence. Such a presumption of guilt
would not apply if the§
reward obtained is considered ‘trivial’ by the court. The guilt of the accused would be presumed
only for the§
offence of taking a bribe. The provision
related to trivial rewards has been omitted.§
Attachment and forfeiture of property
The provisions of the Criminal Law Amendment§ Not provided in the Act. § Ordinance, 1944 would
apply. In place of a District Judge (as
in the Ordinance), cases§
will be referred to a Special Judge. Prior approval for investigation Before a police officer conducts any
investigation into an§
Not provided in the Act. §
offence alleged to have been committed by a public servant, prior approval of
Lokpal/lokayukta to be taken. Such
approval would not be necessary in certain cases§
which involves the arrest of a person on the spot on the charge of taking a
bribe, either for himself or another. Prior sanction for prosecution The prior sanction from the appropriate authority§ is required for
prosecution of public servants. Extends
the requirement of prior sanction to former§
public servants, for any act committed in office. Time period for trial of
cases Trial by special judge to be
completed within 2 years.§
No time period mentioned. § If not, reasons for the delay must be
recorded, for every§ six
months of extension of time obtained.
Total period for completion of trial not to exceed 4 years.§ Penalties*: Habitual§
offender Criminal§ Misconduct Taking/giving a§
bribe, abetment Imprisonment of five
years-10 years and a fine.§ Imprisonment of four years-10 years and a
fine.§ Imprisonment of three years-seven years and a§ fine. Same as the 1988 Act, for all offences.§ Sources: Prevention of
Corruption Act, 1988; Prevention of Corruption (Amendment) Bill, 2013; Notice
of Amendments, Rajya Sabha, November 27, 2015; PRS. The Prevention of
Corruption (Amendment) Bill, 2013 and proposed 2015 amendments PRS Legislative
Research March 23, 2016 - 4 - PART B: KEY ISSUES AND ANALYSIS Taking a bribe
not an offence if person performs actions honestly Under the 1988 Act, as well
as the 2013 Bill and 2015 amendments, if a public servant takes an undue
advantage for performing his public function improperly, he would be punished.
However, the 2015 amendments create an exception. It states that if a public
servant ‘does not perform a public function or activity dishonestly’, he would
not be committing an offence. This implies that if a public servant charged
with taking a bribe proved that he performed his public functions honestly, he
would not have committed the offence. The meaning and implications of this
provision is unclear. The 2015 amendments define terms like ‘undue advantage’
and what would constitute ‘improper performance of a public function’. However,
the term ‘performance of a public function dishonestly’ has not been defined in
the 1988 Act, the 2013 Bill or the 2015 amendments. In the absence of a
definition of what could constitute ‘dishonest performance of a public
function’, the types of actions of a public servant that would qualify as
‘honest’ would be wide and open to interpretation. This could include actions
that are at variance with the purpose of the Act. For example, let us consider
a scenario where a public servant accepts five thousand rupees from a person
for expediting his ration card application. However, after accepting this
money, the public servant does not expedite it. Instead, he processes the
application in a routine manner. The question is whether the public servant can
still invoke the defence that he performed his public function ‘honestly’ as he
followed the prescribed procedure and processed the application in a routine
manner. Note that this clause was not part of the official amendments that were
examined by the Law Commission, in its February 2015 report.6 Requirement of
prior sanction for investigation of a public official The requirement of prior
sanction may not be necessary at the stage of investigation The 2015 amendments
amend the 1988 Act to provide that prior sanction will have to be obtained for
the investigation of a public servant. The provision states that before a
police officer can begin any investigation into an offence under the Act, prior
approval of the Lokpal or Lokayukta must be taken. Such approval would not be
necessary in cases of arrest of a person on the spot for taking a bribe.
Typically, a criminal investigation includes verification of facts and
circumstances and collection of evidence, to decide whether there is a case for
prosecuting the accused. 7 In the absence of such preliminary information being
made available to the Lokpal, the basis on which it would take a decision to
grant sanction for investigation is unclear. The rationale for requiring prior
sanction is to protect public servants from harassment. However, it could
result in delays in investigation and prosecution of genuine cases of
corruption. Under the 1988 Act, prior sanction must be obtained at the stage of
prosecution of the public servant. Requiring prior sanction for investigation
too, raises the question whether this protection is necessary at two stages,
i.e. investigation and prosecution. Note that the 2nd Administrative Reforms
Commission recommended that the use of prior sanction be limited, even at the
stage of prosecution. It stated that it may not be necessary for cases (i)
where a public servant has been trapped red-handed; or (ii) of possession of
assets disproportionate to known sources of income.1 Supreme Court had observed
that prior sanction for investigation could affect its efficiency The
requirement of prior sanction in the 2015 amendments could also be at variance
with the observations of the Supreme Court on prior sanction for
investigation.8 The only law that contained a similar provision of prior
sanction for investigation was the Delhi Special Police Establishment Act,
1946. The 1946 Act required the CBI to obtain prior approval from the central
government for investigation against a public official of the rank of Joint
Secretary and above. (This provision was struck down by the Court on the
grounds that differentiating between two classes of public servants violates
Article 14 of the Constitution.) The Court also observed that such a provision
would impede an unhampered, unbiased, efficient and fearless investigation.8
Act: Section 7 2015 amendments: Clause 3 2015 Amendments: Clause 8B The
Prevention of Corruption (Amendment) Bill, 2013 and proposed 2015 amendments
PRS Legislative Research March 23, 2016 - 5 - Lokpal and some Lokayuktas have
not been constituted The 2015 amendments state that the Lokpal or the Lokayukta
will be the appropriate authority for granting of prior sanction for
investigation. However, the Lokpal, and Lokayuktas, in some states such as West
Bengal and Tamil Nadu, have not been constituted. This may affect the obtaining
of sanction for investigation in relation to a complaint against a public
servant. The inclusion of giving a bribe as a specific offence Bribe giving
under all circumstances to be criminalised Under the 1988 Act, a bribe giver
may be penalised for abetting the offence of taking a bribe. Under the 2013
Bill and 2015 amendments, giving a bribe, directly or through a third party, is
made an offence. Further, illustrations in the 2015 amendments clarify that a
bribe given to process a routine entitlement (like a ration card) or to obtain
an unfair advantage (securing a license over other bidders) will both be
treated as offences under this provision. The punishment for giving a bribe
under all circumstances is the same as that of taking a bribe, which is three
to seven years’ imprisonment, and a fine. Several experts have examined the
issue of whether bribe giving under all circumstances should be made an offence
under the 1988 Act. The United Nations Convention against Corruption (UNCAC)
states that giving a bribe, either directly or indirectly, should be made a
punishable offence.9 India has ratified the UNCAC. 4 However, some experts have
stressed the need to distinguish between bribe givers based on the
circumstances under which they give a bribe. In 2007, the report of the Second
Administrative Reforms Commission recommended that the 1988 Act must
distinguish between coercive and collusive bribe givers. This implies that
individuals who are coerced into giving a bribe for obtaining an entitlement (a
ration card) may be treated differently from those who act in collusion with
the bribe taker to obtain an undue advantage (securing a license over other
bidders).1 The Standing Committee that examined the 2013 Bill had expressed a
similar view.5 Protection to bribe giver under certain circumstances Under the
1988 Act, if a bribe giver makes a statement in court that he gave a bribe it
would not be used to prosecute him for the offence of abetment. The 2015
amendments replace this provision. It states that if someone gives a bribe
after informing law enforcement authorities, in order to assist them in their
investigation against the bribe taker, he will not be charged with bribe
giving. This may not address situations where a person is forced to pay a bribe
for an entitlement, and subsequently reports the matter to the authorities. The
Standing Committee that examined the 2013 Bill noted that individuals who
report the matter after the payment of a bribe in normal circumstances may be
distinguished from those who a pay a bribe in compelling emergent situations.
While in the former case no protection (from punishment) is necessary, in the
latter situation the court may take a decision based on facts and circumstances
of the case.5 Further, the then Chief Economic Adviser made an argument that
giving immunity to a “harassed bribe giver” would incentivise him to report the
incident.10 Certain offences under criminal misconduct modified Under the 1988
Act, criminal misconduct by a public servant covers six types of offences,
including: i) using illegal means to obtain any valuable thing or monetary
reward for himself or any other person; ii) abusing his position as a public
servant to obtain a valuable thing or monetary reward for himself or any other
person; and iii) obtaining a valuable thing or monetary reward without public
interest for any person. The 2013 Bill redefines criminal misconduct by a
public servant to only include: i) fraudulent misappropriation of property
under one’s control, and ii) intentional illicit enrichment and possession of
disproportionate assets. In doing so, the 2013 Bill no longer covers the three
circumstances in the 1988 Act under the offence of criminal misconduct. It is
unclear why these elements have been omitted in the Bill. Note that the 2015
amendment list includes two of the three offences (except ‘obtaining a valuable
thing or monetary reward without public interest’) under the 1988 Act that were
deleted in the 2013 Bill. However, these elements have been included under the
offence of taking a bribe, and not criminal misconduct. The punishment for the
offence of taking a bribe, which is three to seven years’ imprisonment, is
lower than that for criminal misconduct, which is four to 10 years’
imprisonment. Act: Section 13 (1) (d) Bill: Clause 6 2015 amendments: Clause 3,
Explanation 2 Act: Section 12 Bill: Clause 3 2015 amendments: Clause 3 Act:
Section 24 2015 amendments: Clause 3 2015 amendments: Clause 8 B The Prevention
of Corruption (Amendment) Bill, 2013 and proposed 2015 amendments PRS
Legislative Research March 23, 2016 - 6 - Offences for which the guilt of the
accused is presumed The burden of proof on accused person only for taking a
bribe Under the 1988 Act, for certain offences like taking a bribe, habitual
offender and abetment, the burden of proof is on the accused. The 2013 Bill
amends this provision to transfer the burden of proof onto the accused only in
the case of taking a bribe. The Bill seeks to treat the taking and giving of a
bribe in a similar manner, in relation to punishment for both offences.
Therefore, it is unclear why the burden of proof is on the accused person only
for the offence of taking a bribe. The Table below captures the shift in
relation to burden of proof from the 1988 Act to the 2013 Bill. Table 2: Burden
of proof for certain offences under the 1988 Act and 2013 Bill Offence 1988 Act
2013 Bill Taking a bribe On the accused. On the accused. Giving a bribe Not a
direct offence (covered under abetment). On the prosecution. Abetment On the
accused. On the prosecution. Habitual offender On the accused. On the
prosecution. Sources: The Prevention of Corruption Act, 1988; Prevention of
Corruption Bill, 2013; PRS. Trivial rewards not exempt Under the 1988 Act, if
the reward obtained by the public servant is considered as ‘trivial’ by the
court, then it shall not be presumed as an act of corruption. This provision
has been omitted in the Bill and 2015 amendments. Establishing of intention for
possession of disproportionate assets Under the 1988 Act, the offence of
possessing disproportionate assets requires the existence of disproportionate
monetary resources or property in the public servant’s possession. The 2013
Bill modifies this provision. To establish that the public servant had
disproportionate assets, it has to be proven that: i) he possesses monetary
resources or property disproportionate to his known sources of income, and ii)
his intention to enrich himself illicitly. Thus, by requiring that the
intention of the public servant to acquire disproportionate assets be
established, in addition to the existence of assets itself, the Bill is raising
the threshold for proving the offence. The Standing Committee had observed that
the inability of the public servant to explain the source of the
disproportionate assets is sufficient for prosecution, and recommended removing
‘intention’ from the provision. 5 Note that this issue has been addressed by
the 2015 amendments, as it removes the requirement of intention. Comparison
with the UN Convention against Corruption (UNCAC), 2005 According to the
Statement of Objects and Reasons of the 2013 Bill, the amendments to the Act
were introduced to bring it in line with the UNCAC, 2005. However, certain
provisions of the UNCAC have not been included in the 2013 Bill or the proposed
2015 amendments. These include: i) giving a bribe to a foreign public servant;
ii) taking a bribe by a private sector entity; and (iii) compensation for those
aggrieved by acts of corruption.4 1. ‘Ethics in Governance’, Fourth Report,
Second Administrative Reforms Commission, January 2007. 2. The Corrupt Public
Servants (Forfeiture of Property) Bill, 166th Report, Law Commission of India,
February 1999. 3. The Prevention of Corruption (Amendment) Bill, 2008. 4.
United Nations Convention Against Corruption, United Nations Office on Drugs
and Crime, United Nations, 2005. 5. ‘Prevention of Corruption (Amendment) Bill,
2013’, 69th Report, Standing Committee on Law and Justice, February 2014. 6. ‘Prevention
of Corruption (Amendment) Bill, 2013’, Report No. 254, Law Commission of India,
February, 2015. 7. H.N. Rishbud and Inder Singh vs. The State of Delhi, AIR
1955 SC 196; Central Bureau of Investigation Manual, 2005. 8. Subramaniam Swamy
vs. Director, CBI, (2014) 8 SCC 682, (paragraph 59). 9. Article 15, Bribery of
National Public official, United Nations Convention Against Corruption, 2005.
10. “Why for a class of bribes, the act of giving a bribe should be treated as
legal”, Kaushik Basu, Chief Economic Adviser, Ministry of Finance, 2011.
DISCLAIMER: This document is being furnished to you for your information. You
may choose to reproduce or redistribute this report for non-commercial purposes
in part or in full to any other person with due acknowledgement of PRS
Legislative Research (“PRS”). The opinions expressed herein are entirely those
of the author(s). PRS makes every effort to use reliable and comprehensive
information, but PRS does not represent that the contents of the report are
accurate or complete. PRS is an independent, not-for-profit group. This
document has been prepared without regard to the objectives or opinions of
those who may receive it.
New Delhi: The Rajya Sabha Select Committee on Prevention of
Corruption (Amendment) Bill was on Friday granted extension to present its
report by the last day of the first week of next session. BJP MP Bhupendra
Yadav moved a motion in the Rajya Sabha for extension which was accepted by the
House.
The Committee is scrutinising the bill that seeks
inclusion of a provision for prior sanction to be obtained by the CBI or police
before initiating action against corrupt officials, serving and retired.
The extension to the committee, headed by BJP's Anil
Madhav Dave, implies that the bill will not be considered in this session.
Screenshot
of Rajya Sabha. Image courtesy RSTV
The Committee was supposed to present its report to the
Rajya Sabha by the last day of the first week of the Budget Session. However,
it was later given extention till 29 April.
Accepting the Opposition's demand, the government had
earlier referred the bill to the Select Committee.
The Prevention of Corruption (Amendment) Bill, 2013 was
introduced in Rajya Sabha on 19 Aug 2013. Rajya Sabha referred the Bill to its
Select Committee on 11 December, last year. This is the second extension for
the committee.
The proposed legislation has a provision that "no
police officer shall conduct investigation into any offence alleged to have
been committed by a public servant" under the PC Act, where the alleged
offence is relatable to any recommendation made or decision taken by such
public servant in the discharge of his official function or duties without the
previous approval of Lokpal (for central government staff) and Lokayuktas (for
those working under state governments).
The Centre is yet to set up the institution of Lokpal and
Lokayuktas — as mandated under the Lokpal and Lokayuktas Act, 2013.
First Published On : Apr 29, 2016 19:29 IST
It is proposed that amendment would be made to the Prevention
of Corruption Act (PCA) to make all actual and potential bribe-givers offenders
under this Act?.
BY INSIGHTS · MAY 6, 2016
Topic:Challenges of corruption
7) It is proposed that amendment would be made to
the Prevention of Corruption Act (PCA) to make all actual and
potential bribe-givers offenders under this Act?
Making actual and potential bribe givers offenders has following
merits:
Objectivity – All who are involved in a crime should be
treated equally. Difference between bribe giver and taker shouldn’t be made.
Collective
responsibility – Fighting
corruption is responsibility of whole society. Just asking public official to
not take bribe won’t suffice. Further major corruption in procurement cases are
due to kickbacks given by companies.
But there are many concerns against the proposed amendment:
Double
jeopardy – Poor are
forced to give bribe for services which is their right. Criminalization will be
double jeopardy on them. This will be against cardinal value of empathy and
compassion.
Cabinet nod to extend
the PC Act net from Individuals to Corporate entities By: Live Law News Network
| April 29, 2015 Share The Union Cabinet chaired by the Prime Minister, Shri
Narendra Modi, today gave its approval to amend the Prevention of Corruption
Act, 1988 by pursuing the Prevention of Corruption (Amendment) Bill, 2013,
pending before the Rajya Sabha by moving official amendments. The proposed
amendments would fill in perceived gaps in the domestic anti-corruption law and
also help in meeting the country’s obligations under the United Nations
Convention Against Corruption (UNCAC) more effectively. The proposed amendments
are mainly aimed at laying down more stringent measures to tackle corruption as
follows: Providing for more stringent punishment for the offences of bribery,
both for the bribe giver and the bribe taker. Penal provisions being enhanced
from minimum 6 months to 3 years and from maximum 5 years to 7 years (The seven
year imprisonment brings corruption to the heinous crime category). To contain
gain of benefits from profits of corruption, the powers of attachment are
proposed to be conferred upon the trial Court (Special Judge) instead of the
District Court. Expanding the ambit of provision for containing inducement of
public servant from individuals to commercial entities is being added to
contain supply side of corruption. Providing for issue of guidelines for
commercial organizations to prevent persons associated with them from bribing a
public servant. The average trial period of cases under PC Act in the last 4
years has been above 8 years. It is proposed to ensure speedy trial by
providing a trial completion within 2 years. Intentional enriching by public
servants will be construed as criminal misconduct and possession of
disproportionate assets as proof of such illicit enrichment. Non-monetary
gratification has been covered within the definition of the word
gratification.• By way of explanation 2 to section 7(2), the obligation of a
public servant has been explicitly delineated such that the public servant
deters from violating a statutory duty or any set of rules, government
policies, executive instructions and procedures. It is also proposed to extend
the protection of prior sanction for prosecution to public servants who cease
to hold office due to retirement, resignation etc.Further, prior sanction for
inquiry and investigation shall be required from the Lokpal or Lokayukta, as
the case may be, for investigation of offences relatable to recommendations
made or decision taken by a public servant in discharge of official functions
or duties. Background: The Prevention of Corruption Act, 1988 was enacted in
the year 1988. Later developments, such as, India ratifying the UNCAC,
international practice on treatment of the offence of bribery and corruption,
etc. necessitated a review of the existing provisions of the Act, so as to
bring it in line with current international practice and also to meet, more
effectively, the country’s obligations under the UNCAC. The Prevention of
Corruption (Amendment) Bill, 2013 was introduced in the Rajya Sabha for the
purpose on 19.08.2013. The Department Related Parliamentary Standing Committee
submitted its report on the Bill to the Rajya Sabha on 06.02.2014 but the Bill
could not be passed. As the Bill contemplates an important paradigm shift in
defining offences relating to bribery, the views of the Law Commission of India
were also sought on the proposed amendments. Further amendments are proposed in
the Bill as recommended by the Law Commission of India in its 254th Report. PIB
Read more at:
http://www.livelaw.in/cabinet-nod-for-amendments-to-prevention-of-corruption-act-proposes-prior-sanction-for-public-servants-who-cease-to-hold-office-due-to-retirement-resignation-etc/
Criminalizing
reporting – Most of
the corruption cases are exposed by sting operations. With the proposed
amendment the act of giving bribe for exposing corruption will also be
criminalized.
Public perception –People may view the amendment as step to
protect bribe takers.
Over
legislation Under governance - PCA has not worked properly. Just making
more laws without implementation won't help.
In our
country majority of people are poor. There is no symmetry between bribe givers
and takers. Instead of the amending PCA government should improve grievance
redress and operationalise Lokpal Act and the Whistle Blowers Protection Act.
मै
केजरीवाल या दिग्विजय सिंह नहीं हूँ कि मोदी
का विरोध के लिए विरोध करूँ किन्तु जहाँ पर उनके कृत्यों का व्यापक प्रभाव आम जनता
पर पड़ने की सम्भावना हो वहां लेखनी को रोकना भी अन्याय होगा I जैसे GOOD TALIBAN
तथा BAD TALIBAN में भेद नहीं किया जा सकता, जैसे विभिन्न क्षेत्रो में की गयी
आतंकवादी कार्यवाहियों का वर्गीकरण नहीं किया जा सकता है उसी प्रकार किसी भी
प्रकार के भ्रष्टाचार को इस आधार पर औचित्यपूर्ण नहीं कहा जा सकता कि अमुक
भ्रष्टाचार करने वाली की नीयत सदाशयता से परिपूर्ण थी अथवा भ्रष्टाचार करने वाला अमुक
अधिकारी बहुत अच्छी छवि का था I अब तक के भ्रष्टाचार निरोधक कानूनों की यह मान्यता
रही है कि यदि नियमो का उल्लंघन करके किसी को लाभ पहुचाया जा रहा है तो यह भ्रष्टाचार
माना जायेगा I किन्तु अब कानून को बदलने की तैयारी हो रही है जिसमे पैसे का
TRANSACTION सिद्ध करना अनिवार्य होगा I यह लगभग असंभव होगा क्योंकि अधिकांश मामलो
में भ्रष्टाचार परदे के पीछे किया जाता है I यह कहना कि यदि किसी दबाव में कोई गलत
काम किया जाए तथा पैसे का लेन देन न हो तो यह भ्रष्टाचार नहीं है - शायद सत्यता से मुह चुराना होगा I अगर कोई नियम
बना हुआ है तथा ऐसा समझा जाता है कि वह नियम अव्यावहारिक है तो ऐसे नियम को समुचित
प्रक्रिया का पालन करके बदला जा सकता है I किन्तु नियम को न बदल कर EXPEDIENCY के नाम पर
उसका उल्लंघन करना भ्रष्टाचार नहीं तो और क्या है ? जब तक नियम बना हुआ है तब तक
तमाम फर्मे जो उस नियम को पूरा नहीं करतीं वे उस टेंडर में भाग नहीं लेंगी तथा
UNSCRUPLOUS फर्मे टेंडर भर कर बिना उस नियम को पूरा किये लेन देन कर के उस नियम
को अव्यावहारिक तथा विकास में अवरोध पैदा करने वाला बता कर टेंडर को कब्जे में कर
लेंगी I बहुत दिनों से आईएएस लाबी यह अभियान चला रही थी कि जिन अधिकारियो की छवि
अच्छी हो उनके द्वारा किये गए नियमो के उल्लंघन को भ्रष्टाचार न माना जाए I किन्तु
उसको सफलता नहीं मिल पा रही थी I अब उसके
सपने साकार होने वाले है I विख्यात छवि के आईएएस श्री सुब्रमणियम ने भी टीवी की
बहस में इसे अनावश्यक माना है I
इसके
अलावा पहले से ही सरकारी अधिकारियो एवं कर्मचारियों को यह विशेष सुविधा प्राप्त थी
कि विवेचना समाप्त होने पर बिना नियुक्ति अधिकारी की अनुमति के उनपर कोई अभियोजन
की कार्यवाही न की जाए I यह स्वयं प्रजातंत्र की मूल आत्मा का उल्लंघन है कि सरकारी अधिकारियो को जाँच एजेंसी द्वारा गलत पाए
जाने के बावजूद कोई कार्यवाही बिना सक्षम अधिकारी की अनुमति के न हो सके I फिर भी
यह परम्परा चली आ रही थी I किन्तु इतने से आईएएस को संतोष नहीं हो रहा था I वह
लगातार प्रयास कर रहा था कि उसके विरुद्ध कोई जाँच ही न की जा सके I एक बार यह
नियम बनवाने में उसे सफलता भी मिली कि एक निश्चित स्तर से उपर के अधिकारियो के
विरुद्ध बिना सक्षम अधिकारी की अनुमति के जाँच प्रारंभ ही न की जा सके किन्तु मा.
उच्चतम न्यायालय ने इस आदेश को पक्षपात पूर्ण मानते हुए निरस्त कर दिया कि यह
भेदभावपूर्ण है तथा किसी स्तर के अधिकारी को भ्रष्टाचार करने के लिए विशेष सुविधा
नहीं प्रदान की जानी चाहिए I अब यह कानून बनाया जा रहा है कि कोई जाँच एजेंसी चपरासी
से लेकर आईएएस तक किसी के विरुद्ध किसी प्रकार की जाँच प्रारंभ ही न कर सके जब तक कि
सक्षम अधिकारी की अनुमति न हो I यह पिजड़े के तोते सीबीआई को कई परत के और पिजड़ो
में जकड देने के बराबर हो गया I कहा जाता है कि लिली का फूल सर्वाधिक सुगंध देता
है किन्तु वाही लिली का फूल जब सड़ता है तो सर्वाधिक बदबू भी देता है I राम जन्म
भूमि के मुद्दे पर मोदी सरकार कहती है कि वह उच्चतम न्यायालय का फैसला मानेगी
किन्तु आरक्षण तथा भ्रष्टाचार के मुद्दे पर मा. सर्वोच्च न्यायालय के फैसलों को
पलटने के लिए मोदी सरकार प्रयत्नशील है I लोगो की आशाओ पर कितना तुषाराघात होगा इसकी
सहज कल्पना की जा सकती है –
लोग कहते थे कि
इन्कलाब आएगा
नक्साकोहना
चमन का बदल जायेगा
न मालूम
था अतिशे गुल से ही
तिनका तिनका नसेमन का जल जायेगा
किस प्रकार
STING OPERATIONS को तथा भ्रष्टाचार को उजागर करने की पत्रकारों की स्वतन्त्रता को
कुचलने के लिए कानून बनाया जा रहा है, इसका विस्तृत विवरण अगले अंक में ...(क्रमशः)
