The article is written by Tushar Singh Samota, a law student from University Five Year Law College, Rajasthan University. The article discusses the Prevention of Corruption Act, of 1988 along with its evolution and key features. The discussion will be supported by various judicial pronouncements as well.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
“Just as it’s hard to tell when and how much water a fish consumed, similar is the act of stealing government money by officials.”
Corruption has existed in India for centuries. It begins with opportunistic leaders who see any task that comes to them as a chance to gain money. Corruption is seen as one of the most significant barriers to advancement, particularly in developing nations such as India, and particularly in government agencies. Even the education sector, which is intended to instil ideal ethical behaviour in students, is not immune to this evil. For example, the Anti-Corruption Bureau detained two top executives of the Directorate of Higher Education for seeking and receiving a bribe of Rs. 20,000 from a Professor apprehended by the Anti-Corruption Bureau’s (ACB) Thane section in Maharashtra Mumbai. The Criminal Law (Amendment) Ordinance, of 1944 was one of the earliest pieces of law to manage the field of corruption. It was designed to prevent the disposal or concealment of property obtained by corruption, bribery, or other related offences. In 1964, a Central Vigilance Commission was established to specifically deal with cases of corruption, and many State-specific vigilance commissions were also established to address the issue of corruption.
As a result, the Prevention of Corruption Act, 1988 (POCA) was established to consolidate all existing laws and combat corruption in government agencies and prosecute and punish public workers who engage in corrupt acts. It is a powerful tool for combating this evil. The effectiveness of this legislation is critical to the success of the anti-corruption effort. The Central Government has the authority under this Act to appoint judges to investigate and try cases when the offences punishable under the Act are committed or where a conspiracy to conduct or an attempt to commit the offences defined under the Act is made.
The author attempted to explore The Prevention of Corruption Act, of 1988 in this article by addressing its evolution as well as its significant provisions. The article will also discuss the legislation’s amendments as well as judicial pronouncements on the Act.
Evolution of the Act
Initially, the Indian Penal Code, of 1860 dealt with bribery and corruption in situations involving public servants inside the Indian Justice System. However, it was seen throughout the 1945s that the then-existing law was insufficient to handle the exigencies, and an issue was felt to establish unique laws with bribery and corruption, so the Prevention of Corruption Act, of 1947 was adopted impressively. The 1947 Act was later amended twice, first by the Criminal Law Amendment Act of 1952 and then by the Anti-Corruption Laws (Amendment) Act of 1964, both of which were based on the recommendations of the Santhanam Committee.
As a result, the 1947 Act served as a model for the 1988 Prevention of Corruption Act, which went into effect on September 9, 1988. It was aimed at making anti-corruption legislation more effective by broadening their inclusion and strengthening the requirements to make the general resolution more realistic and to eliminate corruption in government offices and public sector organisations in India. The purpose of the Prevention of Corruption Act aims to combat corruption in different government organisations and public sector entities in India.
However, it is not only important to understand the extent to which corruption may be detected in government agencies, but it also means prosecuting and punishing public workers who are participating in corrupt actions. Furthermore, the Act considers those who assisted the criminals in perpetrating the bribery or corruption offence.
Distinctive features of the Act
The following are some of the key features of the Act:
- It has broadened the definition’s application to include terms like “public duty” and “public servant” under Section 2 of the Act’s definition clause.
- According to the Code of Criminal Procedure, 1973, it has transferred the burden of proof from the prosecution to the person accused of the crime.
- The Act’s requirements are very clear: an officer with at least the rank of Deputy Superintendent of Police must conduct the inquiry.
- The 1988 Act broadened the definition of “public servant” to include Central Government personnel, union territories, nationalised banks, University Grants Commission (UGC), vice-chancellors, academics, and others.
- The Act criminalises corrupt conduct like bribery, misappropriation, acquiring a monetary advantage, having assets disproportionate to income, and so on.
Important provisions of the Act
Important definitions
Section 2(b) of the Act defines “Public duty” as a duty in the execution of which the state, the public, or society at large has an interest. The term ‘state’ has a broad meaning as well. In this context, state means
- A corporation created or founded by a Central, Provincial, or State Act.
- A government authority or a body controlled or aided by a government company, as defined in Section 617 of the Companies Act of 1956.
The importance of the term “public duty” is that those who are paid by the government for doing public tasks or who otherwise conduct public obligations may also prevent corruption among public workers.
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.
Whether they are public servants or not?- Minister, Chief Minister, and Prime Minister
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.
The Supreme Court in the case of M. Karunanidhi v. Union of India (1979), determined that a Minister is employed by and subject to the authority of the Governor, receives compensation for labour or duties performed on behalf of the public, and is paid his salary from public money. A Member of the Legislative Assembly (MLA) was found not to be a public servant under Section 21 of the Indian Penal Code, but he is covered by Clause (c) of Section 2 of the Prevention of Corruption Act, 1988.
The term is not limited to the cases specified in the defining clause, and courts have adopted an interpretation that allows additional people to be included within its scope. In P.V. Narasimha Rao vs State (1998), the definitions of “public duty” and “public servant” were questioned. Thus the Supreme Court’s decision made it apparent that the terms “public duty” and “public servant” would be given a broad construction. An MP would therefore be subject to section 2 of the Prevention of Corruption Act, 1988, even if no authority may obtain authorisation for his prosecution under section 19 (1) of the Act.
Accepting rewards, influencing public officials, and accepting gifts
Sections 7 to 11 of the POCA define cases of receiving gratification, influencing public officials, or accepting gifts. The Act categorises offences according to the severity of their effects. Similarly, actions of abetment, conspiracy, agreement, and attempt to commit these offences have been made criminal since it is more vital to nip bribery and corruption in the bud. Various actions have been classified and rendered punishable under various Sections.
It is crucial to note that these parts are currently being requested to be significantly changed in light of India’s duties under the UNCAC. The provisions of the Prevention of Corruption Act as they currently exist are detailed below. The Act’s provisions for offending transactions always include a public servant and illicit remuneration in conjunction with obtaining a favour from the public servant or as an incentive or reward for the public servant.
Section 7 allows public workers to receive rewards other than lawful pay in exchange for doing an official act. According to the explanation for Section 7, gratification is not limited to monetary or monetary-equivalent gratifications. However, it is equally crucial that such a demand be made by the public servant, and the mere possession of the valuable property, in the absence of proof of such a demand, may not result in guilt under Section 7 of this Act.
When a public servant takes or gets illicit gratification for himself or another person, the act is criminal. The term gratification has also been used extensively, and it refers to a variety of things. Within itself, there are instances and transactions. The term “gratification” is not just limited to monetary or monetary-equivalent gratifications
Section 8 prohibits obtaining gratification by corrupt or criminal means to influence a public worker. The phrase “whoever accepts or acquires, or agrees to accept, or seeks to obtain” is used throughout the provision and has been determined to apply to both public workers and non-public servants.
The main distinction between Sections 8 and 9 is that Section 8 allows the use of “personal influence” to secure favour or disfavour, whereas Section 9 contemplates the use of “corrupt or criminal methods.” Although Section 8 uses the term “corrupt,” it is not defined in the Prevention of Corruption Act.
A public servant who receives a valuable object from a person who is involved in any business or transaction involving that public official might be prosecuted under Section 11. The mechanism of this provision requires public employees to acquire something of value while doing their official duties, and these advantages must primarily benefit the employee or any other person.
According to Section 12, whoever aids any crime defined under Sections 7 to Section 11 regardless of whether the crime is committed as a result of the aid shall be punished with imprisonment for a term that shall not be less than three years but which may extend to seven years, as well as being subject to a further five years in prison.
Section 13 of the Act enables the prosecution of a repeat offender and more significantly, makes a public employee who:
- Gets any valuable item or financial gain by corrupt or criminal means,
- Acquires said item by abusing his position as a public official or,
- While serving as a public servant, obtaining something of value or a financial benefit for someone else without serving the public interest.
Without evidence of demand, the mere possession and seizure of cash from a subject of an inquiry do not constitute a violation of Section 7 or Section 13(1)(d) of this Act. In P. Satyanarayana Murthy vs The District Inspector of Police (2015), the Supreme Court ruled that the use of corrupt or illegal means or abusing one’s position as a public servant to obtain any valuable item or financial advantage cannot be deemed to have been proven in the absence of any proof of a demand for illegal gratification.
Is this Act applicable to private individuals as well
As previously stated, the Prevention of Corruption Act of 1988 applies to public workers. To some extent, it also applies to a segment of private individuals. Though the Prevention of Corruption Act of 1988 punishes violations committed by public workers, there are a few occasions where it also applies to private individuals.
Section 8 describes the circumstances in which a person seeks illicit gratification in order to influence a public worker. Thus, anytime an illegal payment is received by a person other than a public worker under the criteria specified in Section 8 of the Act (which are the same as those specified in Section 7), that person is equally responsible for the violation. The Act provides for penalties ranging from six months to five years in jail, as well as a fine. Similarly, activities undertaken by individuals who utilise their personal influence with public workers to obtain illicit gratification are likewise prohibited by the Act.
Thus, this Section 8 applies to anyone who has a connection to public workers who are engaging in corrupt actions. Given our country’s V.I.P. mentality, this is a critical provision. There are a lot of people who are relatives, acquaintances, or friends of public workers who brag about their relationship with such public servants and try to obtain illicit advantages in a variety of areas. Furthermore, this regulation inhibits public officials from obtaining illicit advantages by concealing their identities behind the identity of another individual.
Whether it is illegal to abate some offences
If a public employee who has been charged with an offence under Sections 8 or 9 aids and abets the actions of those other people, the act of aiding is itself criminal under the Act, Whether the crime was done as a result of the abetment, in this case, is irrelevant. The abettor will be subject to a fine in addition to a sentence of imprisonment that must be at least six months long but may not exceed five years.
As a result, the abettor will face the same form of penalty. It is a positive feature when it comes to preventing people from assisting others to commit crimes under the Act, as it provides the same level of penalty for the abettor regardless of whether the offence aided is committed or not. Similarly, Section 12 makes it a crime to aid and abet an offence described in Sections 7 and 11. Section 7 makes it a crime for a public officer to accept a reward other than lawful pay in exchange for performing an official act.
Section 11 makes criminal acts of a public officer getting valuable things without compensation from the person involved in the proceeding or transaction undertaken by such a public servant.
Investigation
Persons authorised to investigate
An investigation of the offence is critical in the criminal justice system. Generally, the police conduct the investigation. It is their primary obligation to gather evidence and try to identify the true perpetrators of the crime. The police have been granted extensive powers for this reason. However, the police can abuse their broad powers at times. Because this is a question of administration and governance by public workers, these powers should be thoroughly reviewed. Not all police officers are permitted to conduct investigations for this reason. Only police personnel of a certain rank are permitted to investigate the matter.
Section 17 of the Act addresses those who are authorised to conduct investigations under the Act. The following individuals have been authorised:
- In the case of the Delhi Special Police Establishment: An officer with the rank of Inspector of Police or higher (CBI).
- In metropolitan locations such as Bombay, Madras, and Calcutta: An official with the rank of Assistant Commissioner of Police or above.
- Elsewhere: An officer with the rank of Deputy Superintendent of Police or higher is authorised.
No approved official may conduct investigations or make arrests until an order from the Metropolitan Magistrate or Magistrate of First Class is obtained. Furthermore, as previously indicated, he may arrest the accused without a warrant from such Metropolitan Magistrate or a Magistrate of First Class. In this approach, we can see that under the Prevention of Corruption Act of 1988, not all police officers are permitted to investigate accusations of corruption. Only the designated police personnel are authorised to conduct investigations into the offences.
Thus, an effective arrangement has been created in context, and a good balance has been struck between the two sides, namely, the accused and the prosecution, to ensure that no public worker is harassed unduly by the police. It is an effective structure for controlling the evil of corruption and establishing the rule of law in order to achieve the lofty goal of natural justice.
Restriction on the investigation in certain cases
Section 17A of the Amendment Act 2018 stipulates that no one may investigate an alleged offence if it involves a recommendation/decision made by a public worker in the course of his official responsibilities. If such an inquiry is to be performed, the following approvals are required:
- Approval of the Central Government is required for offences involving Union matters.
- For offences involving the conduct of state affairs, state government approval is required.
However, if an arrest is conducted on the scene and the offender admits to committing an offence, no such clearance is necessary.
The authority to examine bankers’ books
Section 18 of the Act stipulates that if the investigation officer believes that the bankers’ records need to be examined for the purpose of inquiry, the officer may examine them. This power of inspection extends beyond the offender’s bank accounts and includes the authority to search the bank accounts of anybody whom the officer suspects of holding money on behalf of the criminal.
The function of the bribe provider and the presumption of taint
According to Section 20 of the POCA, there is a presumption that any expensive item or pleasure discovered in the hands of a person under investigation was obtained for the reasons described in Section 7 of the Act. This is a rebuttable presumption, and the individual under investigation would have the burden of proving that the valued item or gratification was not obtained in connection with the Act’s violation. Accordingly, a person under investigation would be found guilty if no evidence was presented to refute the assumption, as was decided in the case of M. Narsinga Rao vs State of Andhra Pradesh (2001).
Section 24 of the POCA grants immunity to the bribe giver and states that the bribe giver’s confession will not expose him to prosecution. The immunity granted to bribe providers under this rule has been seen as a fundamental weakness as well as contradictory with international norms.
| Offences under the Act | Punishment under the Act |
| Taking gratification other than legal remuneration. (Section 7) | Those found guilty shall face imprisonment for 6 months, extendable up to 5 years. A fine shall also be levied. |
| Taking gratification to influence a public servant, through illegal and corrupt means. (Section 8) | Imprisonment for not less than three years, which is expandable up to seven years. A fine shall also be levied. |
| Taking gratification to wield personal influence with public servants. (Section 9) | Imprisonment for not less than 6 months, extendable up to 5 years. A fine shall also be levied. |
| Act of criminal misconduct by the public servant. (Section 13) | Imprisonment for not less than 1 year, expandable up to 7 years. A fine shall also be levied. |
Punishment or penalty under the Act
The imposition of punishment or penalty is a fundamental need of the criminal justice system. The aim of the law is impossible to achieve in the absence of consequence or retribution. Penalty or punishment has a deterring impact on potential future wrongdoers. The severity, amount, and length of the penalty all have an impact on the accused’s rehabilitation. Under the Prevention of Corruption Act of 1988, the general punishment is from three to seven years in jail for lower-level offences (under Sections 7 to 12), in addition to a fine. Higher-level offences, such as the acts performed by the accused under Section 13, are penalised with harsher penalties.
The offence of criminal misconduct, as defined in Section 13, is punished by imprisonment for a duration of not less than four years but not more than ten years, as well as a fine. Persons who commit the offences listed in Section 14, i.e. the habitual commission of offences listed in Sections 8, 9, and 12, face a five-year jail sentence, which can be increased to 10 years. In addition, he will be required to pay a fine as determined by the court. The Act also makes efforts to commit offences criminal. It is specified that anybody who attempts to commit an offence referred to in clause (c) or clause (d) of sub-section (1) of section 13 is punished by imprisonment for a minimum of two years, which can be increased to five years in jail with a fine.
The Act further states that the Court must examine the value or financial interest in the object or property that is the subject of the offence committed. Previously, the Prevention of Corruption Act of 1988 only provided for a short term of imprisonment, which was insufficient to effectively combat the evil of corruption. The Lokpal and Lokayuktas Act of 2013 later extended the sentence. It was extended as a result of increasing pressure from all walks of life against the scourge of corruption. In recent days, civil society has made significant contributions in this area by building a strong public opinion against the scourge of corruption. The Lokpal and Lokayuktas Act, 2013, was the outcome of this awareness, as well as the government’s legal responsibility to execute the terms of UNCAC.
The procedure used to investigate and prosecute corrupt public officials
- The Central Vigilance Commission (CVC), the Central Bureau of Investigation (CBI), and the state Anti-Corruption Bureau are the three primary bodies involved in enquiring, investigating, and prosecuting corruption matters. The Directorate of Enforcement and the Financial Intelligence Unit, both of which fall under the Ministry of Finance, look into and prosecute cases involving money laundering by public employees.
- Under the Prevention of Corruption Act of 1988 and the Indian Penal Code of 1860, the CBI and state ACBs investigate charges of corruption. The CBI investigates cases inside the federal government and Union Territories, whilst state ACBs investigate crimes within the states. Cases can be referred to the CBI by states.
- The CVC is a statutory agency that oversees corruption investigations in government agencies. It is in charge of the CBI. The CVC has the authority to recommend matters to the Central Vigilance Officer (CVO) in each department or to the CBI. The CVC or CVO advises disciplinary action against a public worker, but the decision to take such action against a civil servant remains with the department authorities.
- An investigative agency may commence a prosecution only with the prior approval of the national or state government. Prosecutors chosen by the government handle the prosecution process in the courts.
- Under the Prevention of Corruption Act of 1988, all matters are heard by Special Judges chosen by the national or state governments.
Amendments to the Act
The Prevention of Corruption Act of 1988 was recently updated because no further improvements were made to the Act, resulting in its limited success. With this Act’s limited success, a new Act was required. As a result, The Prevention of Corruption Act, 2018 went into effect (the “Amendment Act”). The majority of the revisions are targeted at tightening up the Act’s current provisions and broadening the scope of the offences.
The significant changes to the Act are as follows:
- The word “Prescribed” has been adopted to refer to rules that the Central Government may create under the Act. As a result, we predict the following rules: Rules requiring organisations and businesses to develop internal policies and procedures to prevent their personnel from giving undue benefit to public officials and rules governing the prosecution of a public servant under the Act.
- “Undue advantage” after this amendment is defined as any reward other than legal payment. Similarly, the term “gratification” has been defined to embrace all types of monetary gratification other than economic gratification.
- The phrase “Legal remuneration” under this amended Act has been defined to cover all pay that a public worker is authorised by the relevant body to receive.
- Under Section 4(4), the courts no longer have to finish trials for Act-related offences within two years, failing which the judges must record the necessity for a time extension. A trial can now be prolonged for six months at a time up to a maximum of four years.
- The amended Section 8 lays out the consequences for anybody who aids in the payment of a bribe or attempts to engage in corruption alongside a public official. The Amendment Act exempts actions taken under duress as long as the person who was forced to take them files a complaint with the police or an investigative agency within seven days after paying a bribe.
- For business organisations, Section 9 now clearly addresses business organisations and the people connected to them. The phrase “persons affiliated with the commercial organisation” is broad enough to cover workers and suppliers, while the word “commercial organisation” is defined to include all types of corporate organisations.
- For the penalty section under this Act, provides that where the commercial organisation’s directors, officers in default, or a person with power over the organisation has consented to the corrupt act breaking the Act’s requirements, Section 10 now sets specific periods for imprisonment and a fine.
- When Sections 10 and 9 are amended together, it may be helpful to keep in mind that the amended Act appears to punish both commercial organisations for violating the Act by levying a fine and the officers in charge of such commercial organisations under Section 10 by subjecting them to criminal liability.
- For provisions related to public servant corruption, it appears that the Amendment Act has reduced the circumstances in which a public employee may be charged with suspected criminal misbehaviour. Only the misappropriation of property and unjust enrichment are included as reasons for misconduct in the modified Section 13 of the Act, which is assessed by disproportionate assets. In the past, Section 13 included broad propensities to engage in corrupt behaviour or seek bribes as grounds for criminal wrongdoing.
- The Amendment Act seems to make it more challenging to bring charges against government personnel. According to the change made under Section 19, to prosecute a public employee under Sections 7, 11, 13, and 15 of the Act, a sanction must first be acquired from a body that has the power to fire them. Second, an authorization request must be made by the investigating authority such as a police officer or else other complaints must be satisfied before the court may declare an offence to have occurred.
Act-related constitutional provisions
The codified laws additionally provide statutory and legal provisions against corruption. The provision of Writ Jurisdiction is also included in the supreme law, namely the Indian Constitution. The office of the Comptroller and Auditor General (CAG) is established to control money and economic offences; in addition, there are authorities at the Central and state levels such as the Central Vigilance Commission, the Committee on Parliament Accounts, the Central Bureau of Investigation (CBI), and the Anti-Corruption Bureau of State (ACBS).
The Supreme Court is the Constitution’s custodian. The Constitution has enabled the Supreme Court to protect the basic rights entrenched in Part III of the Constitution. Fundamental rights are rights against the overwhelming powers of the state. The state is defined under Article 12 of the Constitution. The following Writs are provided by Articles 32 and 226 of the Indian Constitution, as well as the opportunity of Public Interest Litigation (PIL) is available.
- Writ of Habeas Corpus;
- Writ of Mandamus;
- Writ of Prohibition;
- Writ of Certiorari; and
- Writ of Quo-Warranto
All of these writs have their own influence and authority in various domains, and they are nothing more than powers in the hands of the judiciary to restrict administrative discretion. The preamble of the Indian Constitution guarantees the residents of India the right to justice. The Constitution established a federal government, which consists of a Central government and state governments at the state level. Crime is included as a state issue, although law and order are listed concurrently. A number of measures in the Constitution have been enacted to combat corruption in society. Article 311 of the Indian Constitution and the judicial reform process seek to remove corruption from society.
Judicial pronouncements
Parkash Singh Badal And Anr vs State Of Punjab And Ors, (2006)
The Supreme Court ruled in the case of Parkash Singh Badal And Anr vs State Of Punjab And Ors, (2006) that if a public servant received compensation for persuading another public servant to perform or refrain from performing any official act, he would be subject to the provisions of Sections 8 and 9 of the Prevention of Corruption Act. In the same case, the Supreme Court determined that satisfaction might be of any form for Sections 8 and 9, indicating that the scope of their applicability was broad. In this instance, the Court was investigating the relationship between offences under Sections 8 and 9 and Section 13(1)(d) on the one hand.
Subash Parbat Sonvane vs State of Gujarat (2002)
Similar to Section 7, Section 13(1)(d) has been the focus of extensive litigation. The Supreme Court in the case of Subash Parbat Sonvane vs State of Gujarat (2002) held that to be found guilty under Section 13(1)(d), there must be proof that the subject of the investigation, i.e the person under investigation, obtained something valuable or financially advantageous for himself or another person through dishonest or illegal means, by abusing his position as a public servant, or by obtaining something valuable or financially advantageous for another person without any consideration of the public interest.
Bhupinder Singh Sikka vs CBI (2011)
The Delhi High Court in the case of Bhupinder Singh Sikka vs CBI, (2011) found that an employee of an insurance company established by an Act of Parliament was inherently a public servant and that no evidence was necessary in this regard. The Supreme Court’s wide definitions may result in unpredictability and confusion in the law.
Habibulla Khan vs State of Orissa (1995)
It was decided in this case, Habibulla Khan vs State of Orissa,(1995) that, while an M.L.A. falls under the definition of a “public servant,” he is not the type of “public servant” for whom the prior sanction is necessary for prosecution. This paradox was further resolved by a five-judge bench of the Hon’ble Supreme Court in P.V. Narasimha Rao vs State (C.B.I.), 1998, which stated that a Member of Parliament holds an office and is required or accredited to execute responsibilities like public obligations by such office.
As a result, even if no authority may issue approval for his prosecution under Section 19(1) of the Act, an MP would fall within the purview of subparagraph (viii) of clause (c) of Section 2 of the Prevention of Corruption Act, 1988. It was also determined that sanction is not required for the court to take notice of the offences and that the prosecuting agency must obtain permission from the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha, as the case may be, before submitting the charge sheet.
Amrit Lal vs State of Punjab (2016)
Bribery was addressed in Section 7 of the Prevention of Corruption Act of 1988. The complainant’s evidence about the bribe money demand was not validated due to a lack of verification. The amount of money asked as a bribe was challenged in the complaint. Furthermore, two witnesses who testified in front of whom the contaminated money was seized were not interrogated and were unnecessarily released. The Punjab-Haryana High Court, in this case, Amrit Lal vs State of Punjab, (2016) determined that the appellant was entitled to the benefit of the doubt and therefore acquitted of the allegation.
Vasant Rao Guhe vs State of M.P. (2017)
The Supreme Court held in this case of Vasant Rao Guhe vs State of M.P., (2017), that a public official accused of criminal misconduct cannot be expected to explain the absence of evidence to support the claim that he had property or money that was out of proportion to his known sources of income. The bench ruled that the prosecution must prove beyond a reasonable doubt that the public servant, either directly or indirectly through another person, had at any point during his employment had pecuniary resources or property that was out of proportion to his known sources of income. If the prosecution fails to prove this burden, the prosecution will only be able to prove criminal misconduct.
Conclusion
Thus, the evil of corruption has been endangering the evolution of humanity and civilization. Regardless of the period, evil has persisted due to the hungry character of humans. Humans are drawn to this evil because of the material benefits they gain from engaging in immoral acts. 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. However, an Act alone will always lose this battle against corruption; it is also the performance of our lawmakers that will give us an advantage in controlling this menace.
Be aware that nothing in the universe could be perfect, and that this Act is subject to the same rule. Further, if needed, effective amendments have to be passed, but the investigating agencies’ effectiveness and efficiency are also crucial in this respect. With the most recent revisions, it is now facing blisters from legal heavyweights, but this should be avoided, and lawmakers should work to find the gap in the law and close it as completely as possible.
Frequently asked questions (FAQs)
What are the goals of the 1988 Prevention of Corruption Act?
The 1947 Act served as a model for the 1988 Prevention of Corruption Act, which went into effect on September 9, 1988. Its goal was to make anti-corruption legislation more effective by broadening its scope and tightening the provisions to improve the whole statute’s effectiveness.
Who are the authorities who may conduct an investigation?
The Government of India, states, and union territories have designated police officials who may conduct investigations, however, it is normally an officer of the rank of Assistant Commissioner of Police/Deputy Superintendent of Police.
Can a briber who cooperates with the investigation face charges of abetment?
A person who admits to paying or offering to pay a bribe in a proceeding against a public servant will not be prosecuted as an abettor.
How may a person seek remedy from dishonest public officials?
If the public servant is a Central Government employee, the person can call the local Central Bureau of Investigation (CBI) office’s anti-corruption branch. If the public worker works for the state government, the citizen may submit a petition to the Lokayukta/Vigilance Commission.
What is meant by using gratification as a motive or reward for performing or refraining from performing any official act?
A public servant may request/accept gratification for performing an official act, such as issuing a driving licence, as well as for failing to perform an official act, such as failing to evict and fine someone who has encroached on public land.
References
- https://books.google.com/books?id=wzEtEAAAQBAJ
- https://www.scconline.com/blog/post/2018/07/27/prevention-of-corruption-act-before-and-after-amendment-a-comparison
- https://www.lawyersclubindia.com/articles/the-prevention-of-corruption-of-act-1988-all-you-need-to-know-9024.asp
- https://legaladviceguru.com/the-prevention-of-corruption-amendment-act-2018
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