Now Giving/Promising to give bribe is also as heinous as taking bribe.

The parliament has passed the Prevention of Corruption (Amendment) Bill, 2018 (Amendment Bill) This amendment has been aimed at enhancing transparency and accountability of the government and make stringent anti-graft provisions under the law.

Salient Features

Defining the offence of bribing of a public servant:

It shall be construed that the offence of bribing of public servant has been committed when any public servant –

(a) obtains or accepts or attempts to obtain from any person, an undue advantage,with the intention to perform or cause performance of public duty improperly or  dishonestly or to forbear or cause forbearance to perform such duty either by himself
or by another public servant; or’’.

(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or;

(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person,’’.

A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.

Covering the loopholes:

Earlier all kinds of gifts received were exempt from scrutiny but now if it is established that any gift has been received for an undue advantage/ malafide motive, then it shall constitute an act of corruption. Further, the term “undue advantage” has been widened to bring under its ambit “anything other than legal remuneration”.

Collusive bribe givers to be penalized:

Now, after the amendment, “promising to give bribe or giving of bribe” shall be a direct offence on par with the “taking of bribe”. Earlier it was only viewed as abetment. But it would not be out of course to mention here that in case the act of giving bribe is done because of coercion then such a bribe giver who gave bribe under coercion shall be exempted only if he comes forward within 7 days of giving bribe under coercion.

As per the amendment act, now if it is proved that an employee/agent of a commercial organization has given bribe for advancement of the organization’s interests after taking approval of superior functionaries of such commercial organization, then such superior functionaries will also be held responsible.

Even if a person acts as a middle-man in the act of bribing then such middle-man shall also be guilty of the offence.

Empowerment of the honest officials:

Earlier, the honest officials were often thwarted from carrying out their duties honestly as there was a constant threat and fear of false implication in unjust, malafide, concocted, false and frivolous prosecution(s)  which was possible by abusing existing loopholes and anomalies. This lead to a sense of fear among them which adversely affected their decision making abilities. To empower the honest public servants and encourage them to perform their duties. This amendment act aims to ensure an atmosphere free of any pressure or fear so that the bonafide decisions of such honest officials are protected from malicious threats and harassments.

Duration of trial:

It is aptly said, “Justice delayed is Justice denied”. To address the issue of delay, the bill sets the trial time period as per which the trial of an offence shall be held, as far as practicable, on day-to-day basis and an endeavour shall be made to ensure that the said trial is concluded within a period of two years. It has also been provided that where the trial is not concluded within the said period, the special Judge shall record the reasons for not having done so. It is further provided  that the said period may be extended by such further period (after recording the reasons in writing) but not  is shall not exceed six months at a time; and the whole period together with such extended period shall not exceed ordinarily four years in aggregate.’’

Penal Action:

After the amendment, the law enforcement agencies are now empowered with powers to immediately attach and confiscate illegal property/properties of a public servant by invoking provisions of the Prevention of Money Laundering Act. The possession of “illicit property” shall constitute a sufficient cause for prosecution.

Now after the amendment, criminal misconduct only covers two types of offences i.e.

  1. Illicit enrichment (such as amassing  of assets disproportionate to one’s known income sources)
  2. Fraudulent mis-appropriation of property.

It has been made mandatory to take prior approval of competent authority/relevant government to conduct any  investigation into any offence alleged to have been committed by a public servant. Although,  the condition of taking such approval could be waived off in cases which involve on the spot arrest of person on charge of taking a bribe.

The punishment has been prescribed to be an imprisonment which shall be for a term which shall not be less than 3 years but which may extend to 7 years. In case the an offence under this act is committed for the second time, then the punishment shall be of imprisonment for a term which shall not be less than 5 years but which may extend 10 years. Apart from imprisonment fine shall also be imposed whenever an offence is committed under this act.

-Tushar Kaushik

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