In this article, Shubham Kumar discusses Laws against giving and taking bribe in India.
India has been ranked 76th out of 176 countries in the Corruption Perception Index released by Transparency International. In the past decades and also at present, India has seen a series of corruption with the most recent being, INR 1,86,000 crore coal scam in 2012, 2G spectrum scam of INR 1,76,000 crore in 2008, Commonwealth Games Scam of INR 70,000 Cr. in 2010, Bofors Scam of INR 200 Cr. in 1980 etc. In the light of these scams, it can be concluded that the problem of corruption in India is huge. Right from the clerical to the ministerial level, corruption is rampant prevalent in India. Thus, in India, there is an immediate need for strict regulation to keep checks on government officials. If corruption remains unchecked, the inequality gap in India would further widen with the ministers and govt. officials holding wealth and the poor in India will remain starving for days.
What are the laws to prevent corruption in India?
In the wake up of series of corruption in India, the GOI has passed many laws to prevent corruption. Some of the major laws for keeping a check on corruption are:
- Indian Penal Code, 1860
- Prevention of Corruption Act, 1988
- Prevention of Money Laundering Act, 2002
- Right to Information Act, 2005
- Central Vigilance Commission Act, 2003
- Whistleblowers Protection Act, 2011
Under what provisions of IPC can a complaint be made against public officials asking for a bribe?
- Under IPC, a government employee, an officer in the military, navy or air force, police, judges, officers of Court of Justice, and any local authority established by a state or central Act is treated as a public servant.
- Under Section 166, if a public servant does not do what is required to be done by him, in his official capacity he will be punished with simple imprisonment of a term. For example: X who is a public official is directed by the court to seize the property of Z, but X shows some favor to Z. He can be made liable under this provision.
- Under Section 171B, if any public official accepts either for himself or for any other person any gratification as a reward for showing undue favour to any person commits the offence of bribery and will be liable for imprisonment.
- Under Section 409 of the IPC, if a public servant is entrusted with any property or dominion over the property and he converts such property for his use, he is guilty of criminal breach of trust. The punishment for an offense under Section 409 is life imprisonment or imprisonment up to 10 years.
- Under Section 169 of IPC, if a public servant unlawfully bids for any property he shall be punished with imprisonment up to 2 years or fine or both.
Lodging a bribery complaint – Steps to follow
There are two ways in which criminal law against such public officials can be set into motion.
- By registering an FIR before police u/s 154 of CrPC. or by making application u/s 156(3) to the Magistrate, thereby magistrate directing the police to register the FIR.
- By making a private complaint u/s 200 of CrPC. to the Magistrate.
In the case of Sunil Bharti Mittal vs.CBI , the court held that magistrate could take cognizance of the offense, if on his application of mind he is satisfied that the allegations made are true.
Procedures for registering FIR can be accessed at this link.
Under what provisions of POCA Act, 1988 can a complaint be made against public servant asking for a bribe?
- Under Section 2 of the Act, a public servant is defined as any person in service or remunerated by the government, any person remunerated by entities established by the government, any Judge, officials of the Court, any official of a registered co-operative society, VC, professors and officials of university,etc.
- Under Section 7 of this Act, if a public servant accepts or agrees to accept any gratification other than legal remuneration as a reward for showing a favor or disfavor to any person shall be liable under this Act for imprisonment up to 3 years which may extend up to 7 years and fine.
- Under Section 11 of the Act, if a public servant accepts a valuable thing without paying for it or paying inadequately from a person with whom he is involved in a business transaction in his official capacity, he shall be penalized with a minimum imprisonment of six months and a maximum imprisonment of five years and fine·
- Under Section 13 of the Act, a public servant will be liable for criminal misconduct if he habitually accepts or agrees to accept any gratification other than his legal remuneration or dishonestly misappropriates any property entrusted to him as a public servant or abuses his position as a public servant will be liable for criminal misconduct and shall be punished with imprisonment for not less than four years which may extend up to 10 years and shall also be liable to pay fine.
- Under Section 19 of the Act, the previous sanction of the concerned government department is necessary to prosecute a person for the offenses committed by him.
- Special Judges are appointed by Centre and state to try cases related to corruption. Such judges can also take complaints from private individuals about public officials demanding the bribe. Read the case law regarding this here.
Where to file a complaint against public servant asking for a bribe?
- The main authorities where bribery related complaint can be filed are the Central Vigilance Commission, The Central Bureau Of Investigation and the State Anti-Corruption Bureau.
- The CBI and state ACBs investigate cases related to corruption under the Prevention of Corruption Act and the Indian Penal Code.
- The CBI’s jurisdiction is the Central Govt. and UTs whereas ACBs investigate cases within the state.
- CVC is a supervisory body. It makes rules to be followed by ACBs as well as CBIs. It refers cases received by it to CBI or ACB.
- A complaint to the CVC can be made by a letter. An online complaint can be made at [email protected].
- For a complaint to be made by a letter it should be in a closed envelope, name and address of the complaint should be mentioned, the envelope should be sealed.
- Complain can also be made on the website of CBI http://cbi.nic.in/contact.php.
- Complaint to the ACB can be made by addressing a letter to them, or by a phone call or by writing an email to them. The phone numbers, address, email ids of ACBs can be accessed at this link.
- The ACB accepts complaint in disproportionate assets cases and bribery cases and lays a trap to catch the guilty.
Judicial Corruption – How to lodge a complaint against the judges
- For the judges of the lower judiciary, CBI is the competent authority to receive complain and take actions against the erring judge.
- In case of higher judiciary, an in-house mechanism has been formulated to receive complaints against judges. In case a judge of the High Court demands bribe, complaint can be made to the CJ of the concerned High Court. In case, a CJ of a high court asks for a bribe complaint should be addressed to the CJI. Complaint against any judge of the SC is also made to the Chief Justice of India.
Where to file a complaint in case an MP or an MLA demands bribe?
- Provisions for complaint against MPs has been discussed above.
- In case a MLA demands bribe, complaint can be made to the Lokayukta of the state. The Lokayukta has the power to initiate enquiry against any minister including the chief minister.
- The steps of filing complaint to the Lokayukta can be accessed at this link.
Where to make a complaint in case of corruption in different sectors like real estate sector, aerospace sector or mining sector etc?
- Complaints of corruption against any officials of any of the governmental departments can be made to the Central Vigilance Officer of the concerned department. The procedures for making complaint is same as that of complaint to CVC.
How long does the overall procedure take
- The time limit for investigation of charges and awarding of punishment has been given in Complaint Handling Policy of the CVC. Under the policy, the Chief Vigilance Officer (CVO) has to submit his report on the complaints sent by the CVC for investigation within three (3) months. Based on the investigation report, the CVC will render advice after an independent application of mind. Subsequent disciplinary action by the concerned Disciplinary Authority takes around six (6) months. Imposition of penalty takes a further period of three (3) to six (6) months.
What to do in case CVC is not taking any action against the complaint?
- After a complaint is filed a key number is allotted to the complaint. He/she can track the status of the complaint using the key number.
- Generally, the whole procedure takes a time up to 6 months. From filing of complaint to investigation of charges, 3 months time is required and additional 3 months are required to take disciplinary proceedings and imposition of penalty.
- Where CVC, after receiving complaint does not take any action a writ petition can be filed in a High Court, whereby the HC will issue the writ of Mandamus directing the CVC to take action against the complaint.
Protection of the person making complaint of bribery
Any person who reports offense of corruption shall be protected by the Whistleblowers Protection Act, 2011.
Where any public official asks for a bribe , any public servant, or other person including NGOs can disclose of the wrongful acts to the Competent Authority. Any disclosure made under this Act shall be treated as a public interest disclosure, and such person is entitled to certain protection,
- If he is a public servant, no departmental proceeding can be initiated against him.
- If any person is victimised on the ground that he has filed a complaint, he can report the matter to the competent authority. The Competent authority can give direction to the police for protection of the complainant.
- If the public servant is removed from office after he has made a disclosure, the competent authority can restore his job.
Disclosure means reporting of any offense under Prevention of Corruption Act, 1988 or any wilful misuse of power made in writing or by email to a competent authority. The Competent Authority includes PM when the complaint is against any minister, CM when the complaint is against any State Minister, Cabinet Ministers in relation to a complaint against the concerned department, in relation to the judges except a judge of HC & SC to the High Court, CVC, and the SVC.
The identity of the complainant must be included in the complaint, however, the competent authority has to conceal the identity of the complainant unless he has himself revealed his identity (by way of media interviews, etc.). The Competent Authority may with prior approval of the complainant reveal his identity to such organization where it becomes necessary to do so. While dealing with such enquiry, the designated agency shall have the power of a civil court under the Civil Procedure Code, 1908.
The time limit for making a complaint is seven years from the date on which such act was committed. Under the Whistleblowers Protection Act, 2011 the identity of such person shall be concealed. Any person who reveals the identity of the complainant shall be imprisoned up to 3 years and fine not exceeding INR 50000.
Similarly, any disclosure made with mala fide intention knowing it to be false shall be punished for two years and fine not exceeding INR 30000.
The Act extends to companies also. Where a wrongful act is committed by any company, every person who at the time of the offense was responsible for the conduct of the business shall also be guilty.
Procedures to file complaint under the Whistleblowers Act, 2011
The GOI has issued guidelines on public interest disclosure and procedures to file complain to avail benefits under WhistleBlowers Protection Act, 2011.
Under the guidelines, the GOI has authorized the CVC as the designated agency to receive written complaints about disclosure of any allegation of corruption or misuse of office.The Commission can receive complaint against employees of the Central Govt. or of any corporation established by the government. Rules to be followed while making a complaint:
- The complaint should be in a closed envelope.
- The envelope should be addressed to Secretary, CVC and on top of the envelope “Complaint under The Public Interest Disclosure” should be written. If it is not closed and it is not super scribed it will be dealt as per normal policy, and the person cannot avail benefit under the WhistleBlowers Protection Act, 2011.
- The Commission will not entertain the complaint if the name of the complainant is not mentioned.
- The text of the complaint should not give any clue as to the identity of the complainant.
- The whistleblowers should not enter into any further communication with the Commission.
Laws against person giving bribe
- Under Section 12 of the Prevention of Corruption Act, 1988, if a person offers a bribe to any public official or intends to give him any valuable object, in return of a favor extended to him shall be liable for an imprisonment of three years which may extend up to seven years.
- However, a statement made by a person during the proceedings stating that, he offered or agreed to offer any gratification or a valuable thing would not make him liable under Section 12.
- Under Section 171E of the Indian Penal Code,1860, a person offering a bribe can also be punished for a term of one year or fine or both.
According to a survey, 38% of land and property deals in India involves bribes, 62% of law enforcement officers take bribes, INR 222 crore is paid by truck drivers every year to police, forest officials, excise officials, etc. A study showed that 60% of people having driving license have never appeared for a driving test. The monetary value of petty corruption in 11 services of the Govt. like education, healthcare, judiciary, etc. amounts to INR 3,19,72,50,00,000 annually. In lights of such statistics related to corruption, it can be concluded that problem of corruption is deeply rooted in the Indian Society. The problem cannot be solved by law-making. To deal with such a societal evil, people need to bring change in themselves. The coming generation should be made to realize the evils of corruption and should be taught not to indulge in these practices.