PREVENTION OF CORRUPTION ACT, 1988

Summary

WHAT IS CORRUPTION Act of bribery or misuse of public position India among top 3 most corrupted nations Politics, criminals and bureaucrats

HISTORY IPC – pre independent era Prevention of Corruption Act 1947 Prevention of Corruption Act 1988

OTHER ANTI CORRUPTION LAWSRight to Information Act 2005Prevention of Money Laundering Act

PREVENTION OF CORRUPTION ACT 1988 Section 2 of the PC Act, 1988 defines “Public Servant”

broadly. It says “ any person” who is :i. In the service or pay of the Government or remunerated

by the Government;ii. In the service or pay of a Local Authority;iii. In the service or pay of a corporation established by or

under a Central, Provincial or State Act;iv. Any Judge, delivering adjudicating functions;v. Authorized by a Court of Justice vi. Any arbitrator ;vii. Empowered to prepare, publish, maintain or revise an

electoral roll or to conduct elections;

CONTD…vii. Empowered to prepare, publish, maintain or revise an

electoral roll or to conduct elections;viii. Authorized to perform public duty;ix. President, Secretary or other office bearer of a

registered co-operative societyx. Chairman, member or employee of any Service

Commission or Boardxi. Public authority conducting examinations (Professor,

lecturer)xii. An office-bearer or an employee of an educational,

scientific, social, cultural or other institution which receives aid form the Government or local or other public authority.

CASE LAWS M.L.A. /M.P. is a public servantIn Habibulla Khan v. State of Orissa (8 1993 Crl. L.J.

3604.) Minister is a public servantIn the case of M. Karunanidhi v. Union of India(AIR

1979 SC 898) Ex-public Servant can be prosecuted under P.C Act,

1988The Calcutta High Court in Manmal v. State of West

Bengal (AIR 1974 Crl.L.J. 92 (Cal)

APPOINTING SPECIAL JUDGES

The Central and the State Governments are empowered to appoint Special Judges by placing a notification in the Official Gazette.

Indira Narayan Ganguly v. State of West Bengal19, (1997)4crimes 334- any offence under this Act to be tried by special judges.

J. Jayalalitha v. Union of India( AIR 1999 SC 1912) - discretion of the Government is not unfettered or unguided.

POWERS OF SPECIAL JUDGE

A Special Judge may take cognizance of offences without the accused being committed to him for trial

Tender pardon to obtain evidence CrPC provisions will apply to proceedings before

special judge. A Special Judge, while trying an offence punishable

under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944.

SECTION 7 A public servant or a person expecting to be a public

servant renders himself guilty of an offence under Section 7 of the PCAct, 1988:-

if he accepts or obtains, or agrees to accept, or attempts to obtain from some person a gratification;

if such gratification is not a legal remuneration due to him;

if he accepts such gratification as a motive or reward;a) doing or forbearing to do, an official, act, orb) showing, or forbearing to show, favour or disfavour

to someone in the exercise of his official functions;or

SECTIONS 8 & 9 & 10 Section 8 & 9 of the Prevention of Corruption Act

1988 correspond to repealed Section 162 and 163 of the Indian Penal Code(IPC). Under Sections 8 and 9 of the PC Act, 1988 it is an offence for a person to accept any gratification as a motive or reward for improperly influencing a public servant by corrupt or illegal means or by the exercise of personal influence.

Section 10 corresponds to repealed section 164 of IPC, prescribes punishment for offence under above two sections as imprisonment for not less than 6 months which may extend to 5 years and fine.

SECTIONS 11 & 12 Section 11 corresponds to repealed section 165 of

IPC. A person agreeing or obtaining valuable thing without consideration which is inadequate from any person who is concerned with business by public servant or any such person subordinate to him , shall be punishable with imprisonment of not less than 6 months and not more than 5 years with fine.

Section 12 corresponds to the repealed section 165A of IPC. Under this Section, the offering of a bribe or a valuable thing to a public servant without consideration or for an inadequate consideration is an offence by itself and not merely an offence of abetment.

CRIMINAL MISCONDUCT The offences specified under clauses (a) and (b) of Sec

13(1) of the Prevention of Corruption Act, 1988, have the same ingredients as those specified in Section 7 and 11 of the Act. But there exists some differences.

Sec 13(1)(c) corresponds to Section 5(1) (c) of the repealed PC Act, 1947.

Sec 13(1)(d) this clause corresponds to Sections 5(10)(d) of the repealed PC Act, 1947.

Sec 13(1)(e) corresponds to Section 5(1) (e) of the repealed PC Act.

CONTD… Sec 17: Persons authorised to investigate. Sec 18: Power to inspect banker’s books. Sec 20(1): Presumption where public servant accepts

gratification other than legal remuneration. Sec 20(2): A similar presumption is to be made

against the accused charged under Section 12 of the Act.

Sec 20(3) : Exception to such presumption Sec 21: Accused person to be a competent witness.

LOOPHOLES IN P.O.C ACT 1988

Not applicable to private sector whereas private sector has a lot of corruption involved

Delay in prosecuting The term “corruption” remains undefined creating

confusion No provision regarding confiscation of proceeds

from bribery

THE ACT AT A GLANCE

LOKPAL AND LOKAYUKTA ACT 2013

ESTABLISHMENT OF LOKPAL

Lokpal at the Center- members not more than 8 Chairperson & members (judicial and non judicial) Appointed by President Recommendation by Selection committee Selection committee Term for 5 years or attainment of 70 years

whichever is earlier Salary and allowances

OTHER PROVISIONS Inquiry wing for offences under Prevention of Corruption

Act Prosecution wing for complaint under Lokpal Act Jurisdiction of lokpal:a) Prime Ministerb) All ministers of Parliament c) Group A or B officersd) Group C or D officers

POWERS OF LOKPALI. Supervisory powers(S:25)• Powers of superintendence, directions to Delhi

Special Police Establishment • Central Vigilance Commission sends report to

Lokpal• No officer or body in charge should be

transferred• May appoint advocates other than government

advocates

I.

II. SEARCH & SEIZURE(S:26)

If Lokpal believes any document secreted , it may search and force seizure of such document

It will be in custody of person or authorised body till the end of proceedings

Lokpal to have powers of civil courts under CPC,1908: summoning, examining oath, receiving evidence & affidavits, examination of witnesses etc.(S:27)

III. UTILISE SERVICES OF CENTRAL & STATE OFFICERS

(S:28) For conducting preliminary inquiry Lokpal may

utilise the services The person or agency whose services are utilised are

subjected to directions by Lokpal

PROVISIONAL ATTACHMENT OF ASSETS(S:29)

If lokpal believes that any person is in possession of proceeds of corruption or such person accused of corruption then such proceeds are concealed, transferred or confiscated

Ordered to attach the property and forward the copy to special court in 90 days

Order will cease after expiry of said period

CONFIRMATION OF ATTACHMENT OF ASSESTS

(S:30) Lokpal directs prosecution wing to file application within

30 days Special Court if convinced then makes an order for

confirming attachment of property till the end of proceedings

Public servant if acquitted given compensation and benefits

If not, property goes to Central Govt

SPECIAL COURTS MAY CONFISCATE IF THEY BELIEVE THAT PROPERTY IS POSSESSED BY CORRUPT MEANS OR IS CORRUPTED ON THE BASIS OF EVIDENCE (S:31)

Lokpal has the power to transfer or suspend any public servant in connection with corruption (S:32)Lokpal may directions to prevent destruction of records (S:33)Lokpal may delegate any financial or administrative powers to its members or officers (S:34)

CONSITUTION OF SPECIAL COURTS RECOMMENDED BY LOKPAL TO

HEAR CASES ARISING FROM P.O.C ACT 1988 AND SUCH CASES TO BE

COMPLETED WITHIN 1 YEAR(S:35)

No inquiry against members or chairperson. They can be removed on grounds of misbehavior when proved by Supreme Court on being signed by at least 100 members of parliament.Can also be removed if insolvent, holding office of profit or infirmity of mind and body (S:37)

DECLARATION OF ASSETS(S:44)

Within 30 days of oath or entering into office, he is to submit declaration of assets whose benefits are shared by him, his spouse and his dependent children

To be filed within 31st July Authority publishes the same on the website by 31st

AugustSEC 45 says if he fails to do so or gives misleading

information: Assets presumed to be acquired by corrupt means

ANY PERSON MAKING FALSE OR FRIVOLOUS COMPLAINT UNDER THIS ACT: MAX OF 1YEAR IMPRISONMENT + FINE UPTO 1LAKH RUPEES. (S:46)

EFFICACY Body consisting of 50% of S.C/S.T/O.B.C: This defies

logic as question of merit and ability should always be beyond caste and religion lines.

Clean & accountability in governance

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