By J P Rajkhowa
The Prevention of Corruption Act, 1988 (PCA) is the only specific piece of legislation in India to take on the corrupt public servants, involved in acts of corruption, i.e., accepting or demanding illegal gratification or bribe, in either cash or kind or both, from individuals or other persons including corporate entities, for doing or performing a task, which, the public servant is legally bound to perform or for doing acts, by showing undue favour to individuals or organizations, through manipulation of different kinds, in lieu of certain consideration, fincial or otherwise. While the PCA has defined ‘public duty’ which a ‘public servant’ is legally bound to perform, as against any ‘private duty’ and also defined ‘public servant’ by mentioning twelve kinds of public officials, under Section 2, it has not attempted to define ‘corruption’ or ‘corrupt practices’ nor has it defined ‘bribe’ though in other sections, it has elaborated on words / phrases like, gratification, legal remuneration, a motive or reward for doing, expecting to be a public servant, crimil misconduct, etc., though term like ‘offence’ has not been defined, which has to be interpreted the way it is provided in the Indian Pel Code (IPC).
The PCA provides for appointment of and trial by Special Judges, including summary trial, investigation into cases under it by an officer not below the rank of an Inspector of Police in the case of the Delhi Special Police Establishment (DSPE) or the CBI, an Assistant Commissioner of Police in Metropolitan cities or metropolitan area and elsewhere by a Deputy Supdt. of Police, and also arrest without a warrant by such authorized officers, even without orders of a Judicial magistrate. Previous sanction of competent authority, i.e., appointing authority of a public servant or an authority superior to the appointing authority, is required for prosecution of such public servant, in a Court of law. Section 19 of the PCA specifically mentions the competent authorities, in the case of different types of public servants, who are authorized to issue ‘sanctions for prosecution’.
The PCA prescribes for pelties for offences committed under the Act, which varies from minimum six months of imprisonment to maximum five years under Section 7 (public servant taking gratification other than legal remuneration in respect of an official act), Section 8 (taking gratification, in order, by corrupt or illegal means, to influence public servant), Section 9 (taking gratification, for exercise of persol influence with public servant), Section 10 (punishment for abetment by public servant of offences defined in section 8 or 9), Section 10 (punishment for abetment by public servant of offences defined in section 8 or 9), Section 11 (public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant), Section 12 (punishment for abetment of offences defined in section 7 or 11). For committing Crimil misconduct defined in Section 13, a public servant is liable to a minimum term of imprisonment of not less than one year and maximum of seven years. For habitual committing of offence under sections 8, 9 and 12 the PCA (Section 14) provides for a minimum imprisonment of two years and maximum up to seven years. For attempt to commit Crimil misconduct, the punishment prescribed is imprisonment, which may extend to three years and with fine; no minimum term is prescribed here, which is left for decision by the concerned trial court.
Thus it is seen that, the PCA provides for minimum six months of imprisonment with fine and maximum punishment up to seven years with fine in respect of habitual offenders and those committing Crimil misconduct under Section 13 (2). For attempt, no minimum period of imprisonment has been prescribed. In the context of Indian conditions, with corruption / bribery / corrupt practices eating in to the vitals of the society, the deterrent punishment provided in the PCA for preventing acts of corruption, by unscrupulous and greedy ‘public servants’, are considered idequate, which had prompted the law makers to consider PCA Amendment Bill, 2013, which was tabled by the previous UPA government in the Rajya Sabha, after which, it was referred to a Parliamentary Standing Committee of the Ministry of Personnel, Public Grievances etc., which had gone into the PCA Clause by clause, examined the provisions of the United tions Convention Against Corruption (UNCAC) of which India is a sigtory, and also the Bribery Act of some other countries, including the U.K. and submitted its recommendations to the Union Government, which, after the NDA came to power in 2014, referred to the Law Commission of India for expert advice.
While one concern of the present Government at the Centre has been the failure of the PCA, in its present form, to contain corruption, by bringing the corrupt public servants to justice speedily, imposing exemplary punishment on them, as a deterrent measure, another concern appears to be to speed up the decision- making process, at the level of policy makers in the bureaucracy, which had been scuttled due to fear of unnecessary prosecution of honest public servants, after their retirement from service, as a form of vendetta by overzealous investing agencies / officers. This has become all the more important, in view of the Union Government’s newly declared “Make In India” initiatives as also Foreign Direct Investment (FDI) in the Railways, Defence production, Multi- brand Retail etc.
The Law Commission of India had recently furnished its detailed alysis, views and recommendations to the Union Government, on the amendments to be made on the PCA, after considering all aspects, including UNCAC and consultation with all stake-holders. The Union Cabinet, chaired by Prime Minister rendra Modi, considered in detail, the amendments suggested by the Parliamentary Committee as well as the Law Commission, at its meeting held on April 29, 2015 and approved amendments to the PCA, “that provide for classifying corruption as a heinous crime and longer prison terms for both the bribe giver and the bribe taker. The proposed amendment act will also ensure speedy trial, limited to two years, for corruption cases.” It may be mentioned that, under the existing PCA, only the bribe- taker is liable for prosecution and punishment, and the bribe- giver goes scot free. The idea is to contain both the ‘demand’ as well as ‘supply’ side of corruption (bribe or illegal gratification).
As reported, the measures approved by the Cabinet include enhancement of Pel provisions from minimum 6 months to 3 years and from maximum five years to seven years, though, it seems the existing maximum 7 years imprisonment in respect of habitual offenders and some others have not been suitably raised. The ambit of the existing PCA will be widened to make commercial entities / corporate organizations etc. liable for giving inducement to public servants, as against only individual employees at present. It also provides for issue of guidelines by commercial organizations to prevent persons associated with them from bribing a public servant. In addition, non- monetary gratification will also be covered within the word ‘gratification’ in the PCA.Honest officers, even after retirement, are to be given ‘protection shield’ against unnecessary prosecution, making it difficult for the investigating agencies, CBI included, to prosecute a public servant, including a former one, without mandatory prior sanction from the Lokpal or Lokayukts for probing ‘offences relatable to recommendations made or decision taken in discharge of official functions or duties.
Filly, I would observe that, it would be appropriate to define or elaborate on ‘corruption’ or ‘corrupt practices’ as lot of confusion is created, due to different interpretation of these terms, by different authorities. Secondly, to serve as a real ‘deterrent’ for tackling the mece of corruption, due to bribery or illegal gratification, the maximum pelty should be raised much beyond 10 years, which the law- makers might like to deliberate and decide.