Law and You > Criminal Laws > Criminology > Prevention of Corruption Act, 1988
The Prevention of Corruption Act, 1988 is an Act enacted to combat corruption in government agencies and public sector businesses in India. Initially, within the Indian Justice System, the Indian Penal Code dealt with the offenses of bribery and corruption in cases of Public Servant. But during the 1945s it came into notice that the then-existing law was not adequate to meet the exigencies and a need was felt to introduce special legislation to eradicate bribery and corruption, it was thus that the Prevention of Corruption Act, 1947 was enacted for the first time.
The 1947 Act was later amended at two instances by the Criminal Law Amendment Act, 1952 and by the Anti-Corruption Laws (Amendment) Act, 1964 based on the recommendations of the Santhanam Committee. The 1947 Act became a pilot to the Prevention of Corruption Act, 1988 which came in force on 9th September 1988. It was aimed at making anti-corruption laws more effective by widening their coverage and by strengthening the provisions to make the overall statute more effective. The Prevention of Corruption Act, 1988 consists of 5 chapters and 37 sections describing every rule, regulation, the appointment of judges, penalty, and punishment for the offence. The Act ensures that fair and effective investigation is carried out without any external influences to punish the people involved in these criminal offences.
Prevention of Corruption Act, 1988
Objects of the Act:
As per the provisions of the Prevention of Corruption Act, 1988, the objectives of the act can be summarized as follows:
- To Prevent corruption in the form of bribery, abuse of public office, and illicit enrichment.
- To Promote transparency and accountability by requiring public servants to disclose their assets, liabilities, and financial interests.
- To deter individuals from engaging in corrupt practices by imposing strict penalties, including imprisonment and fines, on those found guilty of corruption offences.
- To investigate and Prosecute corruption cases,
- To outlining the procedure for gathering evidence, conducting trials, and ensuring a fair and expeditious legal process.
- To provide protection to individuals (Whistle Blowers) who report corruption-related offences in good faith.
- To enable international cooperation in the fight against corruption by facilitating the exchange of information and mutual legal assistance with other countries.
- The act includes provisions for the identification, seizure, and confiscation of the proceeds of corruption, aiming to deter individuals from benefiting from their corrupt acts.
- The act emphasizes the need for preventive measures to combat corruption, including establishing vigilance commissions, promoting awareness, and educating public servants and citizens about the detrimental effects of corruption.
Salient Features of the Act:
Some of the salient features of the Act are:
- It incorporates the Prevention of Corruption Act, 1947, the Criminal Law Amendment Act, 1952, and Sec. 161 to 165-A of the Indian Penal Code with certain tweaks in the original provisions.
- It has enlarged the scope of the definition such as Public Duty and Public Servant under the definition clause, Section 2, of the act.
- It has shifted the burden of proof from the prosecution as mentioned in the CrPC to the accused who is charged with the offense.
- The provisions of the Act clearly state that the investigation is to be made by an officer, not below the rank of Deputy Superintendent of Police
- The 1988 Act enlarged the scope of the term ‘public servant’ which now includes employees of the central government, union territories, nationalized banks, employees of the University Grants Commission (UGC), vice-chancellors, professors, and the like.
- The Act covers ‘corrupt’ acts as bribe, misappropriation, obtaining a pecuniary advantage, possessing assets disproportionate to income and the like.
Definition of Public Servant Under the Act:
Section 2(c) of the Act defines “public servant” broadly and expressively. Thus; the term includes the following:
- Any individual employed by the government, receiving government compensation, or receiving fees or commissions from the government for the performance of any public obligation;
- Any individual who works for or is compensated by a local government;
- Any employee of a firm created by or operating under a Central, Provincial, or State Act, as well as any authority, body, or company owned, controlled, or assisted by the Government, as defined in section 617 of the Companies Act, 1956.
- Any Judge, as well as anyone permitted by law to carry out adjudicatory duties on their own or as a part of any group of people;
- Any individual designated as a liquidator, receiver, or commissioner by a court of justice with the authority to carry out any function related to the administration of justice;
- Any arbitrator or other individual to whom any issue or subject has been submitted by a court of justice or by a competent public authority for judgement or report;
- Any person who occupies a position that gives him the authority to conduct an election or a portion of an election, or to compile, publish, maintain, or update an electoral roll;
- Any individual holding a position that allows or obligates them to carry out public duties;
- Anyone serving as the president, secretary, or other office-holder of a registered cooperative society engaged in agriculture, industry, trade, or banking who is currently receiving or has previously received financial aid from the Central Government, a State Government, or from any corporation created by or operating under a Central, Provincial, or State Act, as well as any authority or body owned, controlled, or assisted by the Government or a Government company as defined in Section 617 of the Companies Act, 1956
- Any individual who serves as the chairman, a member, or an employee of any Service Commission or Board, regardless of its name, or a member of any selection committee chosen by the Commission or Board to conduct any examinations or make any selections on its behalf;
- Any Vice-Chancellor, member of a governing body, professor, reader, lecturer, or other teacher or employee of any university, regardless of their title, as well as any individual whose services have been used by a university or another public authority in connection with the holding or conducting of exams;
- Any official or employee of an educational, scientific, social, cultural, or other institution, regardless of how it was founded, who is receiving or has previously received financial support from the Central Government, any State Government, a local government, or other public authority.
According to Clause (12) of Section 21 of the Indian Penal Code, which is equivalent to Clause (c) of Section 2 of the Prevention of Corruption Act, 1988, a Minister, Prime Minister, or Chief Minister is a public servant.
Who can Investigate the Offence Under the Act?
- In the case of Delhi, no officer lower than the position of Inspector is allowed to carry out the legal procedures of this case.
- In metropolitan cities, an Assistant Commissioner of Police is appointed to carry out the investigation process.
- Everywhere else, no one, other than a Deputy Superintendent of Police, has permission to interfere in the investigation.
What are the Punishments Under the Act?
The punishment and penalties imposed, solely depend on the severity of the malpractice committed. For example:
- Asking for gratification other than legal remuneration can land you in prison for 6 months to 5 years if found guilty of any corruption while the investigation was carried out. A certain amount of monetary fine can also be imposed as per the position of the public servant.
- Asking for gratification to influence a public servant, through illegal and corrupt practices can land the offender in prison for not less than 3 years which can be expanded up to 7 years including a heavy monetary fine altogether.
- Grabbing gratification to utilize personal influence with public servants can add imprisonment from 6 months extendable up to 5 years along with a legal notice compelling the offender to pay a monetary fine as well.
- Act of criminal misconduct by the public servant can result in imprisonment ranging from 1 year expandable up to 7 years including a heavy monetary fine.
Highlights of the 2013 Amendment Act:
- Bribery was made a punishable offence. A person who was compelled to bribe, should he/she report this incident to the law enforcement within seven days shall not be charged under the Prevention of Corruption Act.
- Two types of offences were covered under the amended criminal misconduct. The offences are illicit enrichment as in amassing wealth disproportionate to one’s income sources and fraudulent misappropriation of property.
- The amendments were made taking prior approval of the relevant government authority to conduct any investigation regarding any offences allegedly conducted by public cases. However, if the offender has been arrested on the spot for taking bribes, then this approval is not needed.
- The Trial Limit for cases under PCA was fixed within two years if it is handled by a special judge. The total period for the trial should last only four years.
Highlights of the 2018 Amendment Act:
- Bribery is a specific and a direct offence
- Anyone taking bribes will face imprisonment for 3 to 7 years along with being levied a fine
- Those giving bribes can also be punished with imprisonment for upto 7 years and levied a fine.
- The 2018 amendment creates a provision to protect those who have been forced to pay a bribe in the event the matter is reported to law enforcement agencies within 7 days.
- It redefines criminal misconduct and will now only cover misappropriation of property and possession of disproportionate assets.
- It proposes a ‘shield’ for government servants, including those retired, from prosecution by making it mandatory for investigating agencies such as the Central Bureau of Investigation to take prior approval from a competent authority before conducting an inquiry against them.
- However, it states that such permissions shall not be necessary for cases involving the arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person.
- In any corruption case against a public servant, the factor of “undue advantage” will have to be established.
- The trial in cases pertaining to the exchange of bribes and corruption should be completed within two years. Further, even after reasoned delays, the trial cannot exceed four years.
- It covers bribe-giving commercial organisations to be liable for punishment or prosecution. However, charitable institutions have been left out of their ambit.
- It provides powers and procedures for the attachment and forfeiture of a corruption-accused public servant’s property.
A. R. Antulay v. R. S. Nayak, AIR 1988 SC 1531 Case:
This case was a landmark judgement as it stated that the instances of corruption that can be heard by a special judge cannot be forwarded to the high court which restricted by limitation of human foresight. This case is also significant as in this serious allegation put on CM of Maharashtra which led him to resigned from his post in 1982. This case addressed the question of separation of the judiciary’s and the executive power and established the doctrine of pleasure law, which governs judges removal.
This case arose when Mr. Antulay, then CM of Maharashtra, issued an executive order for allocation of funds to a trust controlled by him which put serious allegations on him of power abuse which made him resigned from his respected CM post on 20/01/1982, but continued to be a MLA. RS Nayak, was a member of Legislative Council.
On 01/09/1981, RS Nayak, a member of Legislative Council an individual approached governor under section 197 of CrPC, 1973 and section 6 of Prevention of Corruption Act, 1947 for approval to bring a suit against appellant. The dispute centred on whether the Maharashtra State Legislature’s decision to form a Special Investigating Committee (SIC) to look into claims of corruption against the state’s former chief minister, A.R. Antulay, was constitutional. Under Articles 14, 19, and 21 of the Constitution of India. It did not follow the principles of natural justice.
Issues
- Whether Supreme Court can pass judgement which violate Fundamental rights Article 14 and 21?
- Whether an accused has a right to fair trial with co-accused?
- Whether supreme court or high court has power to withdraw and transfer case in prima facie without having jurisdiction?
- Whether committee established by Maharashtra government violated the principles of natural justice and the right to a fair trial?
Judgement Analysis:
- The Supreme Court ruled unanimously that the resolution creating the SIC was unconstitutional and went against natural justice principles. The court stated that the SIC did not adhere to the natural justice standards, such as the right to be heard, the right to cross-examine witnesses, and the right to legal representation, and that it was established with the express intent of investigating Antulay.
- The charges of corruption against Antulay might still be investigated and prosecuted, but that it would need to be done in a fair and unbiased manner and with the protection of his fundamental rights. Antulay’s right to use appellate remedy was curtailed.
- The court addressed the scope of judicial review and concluded the judiciary could not affect the executive’s policy decisions. The courts’ responsibility is to guarantee that the administration acts within the bounds of the law and the Constitution. The judiciary had the authority to examine executive activity and revoke unlawful and unconstitutional actions.
- The Supreme Court and High Court have no right to extend their or inferior court jurisdiction. This power lies with only parliament by law.
- Separation of the three branches—executive, judicial, and legislative is a basic feature of Constitution, hence it cannot be breached.
- The maxim “Actus Curiae Neminem Gravabit”-An act of the court shall prejudice no – one. The fundamental principles governing the administration of justice are straightforward. No one should endure suffering as a result of a court’s error.
Conclusion
The evil of corruption has been endangering the evolution of humanity and civilization. It not only hampers the individual’s growth but also the collective growth of the nation. Hence, it stands highly imperative to control and then stop this growing menace. This Act may be useful in developing an efficient system to combat the evil of corruption. As a result, the Prevention of Corruption Act of 1988 is an important statute to combat corruption. There is a huge power has been vested in the hands of the Central and State Government in form of appointment of Special Judges, providing sanctions etc. Hence the Act would become oblivious if the matter in question is related to Central or State Governments.