As quoted by Dr. Abdul Kalam, ‘Corruption is one of the greatest impediments on the way towards progress for developing country like India’. The Prevention of Corruption Act was enacted by the Parliament in 1988 in order to thwart corruption practices in government agencies. Constitutional principles of equality and justice are the guiding forces of the Act.
The Act penalises the dishonest pecuniary
gratification to public servants other than legal remuneration by any person. The Act covers ‘corrupt’ acts as bribe,
misappropriation, obtaining a pecuniary advantage, possessing assets
disproportionate to income and like illegal flow of money and kind. According
to Section 2 of Prevention of Corruption Act following persons are considered
as public servants:
I. Any
person in the service or pay of the Government or remunerated by the Government
by fees or commission for the performance of any public duty
II. Any
person in the service or pay of a Local Authority
III. Any
person in the service or pay of a corporation established by or under a
Central, Provincial or State Act, or an authority or a body owned or controlled
or aided by the Government or a Government company as defined in section 617 of
the Companies Act, 1956
IV. Any
Judge, including any person empowered by law to discharge, whether by himself
or as a member of any body of persons, any adjudicatory functions
V. Any
person authorized by a Court of Justice to perform any duty, in connection with
the administration of justice, including a liquidator, receiver or commissioner
appointed by such court
VI. Any
arbitrator or other person to whom any cause or matter has been referred for
decision or report by a court of justice or by a competent public authority.
VII. Any
person who holds an office by virtue of which he is empowered to prepare,
publish, maintain or revise an electoral roll or to conduct an election or part
of an election.
VIII. Any
person who holds an office by virtue of which he is authorised or required to
perform any public duty. Any person who is the President, Secretary or other
office bearer of a registered co-operative society engaged in agriculture,
industry, trade or banking, receiving or having received any financial aid from
the Central Government or a State Government or from any corporation
established by or under a Central, Provincial or State Act, or any authority or
body owned or controlled or aided by the Government or a Government company as
defined in section 617 of the Companies Act, 1956.
IX. Any
person who is a chairman, member or employee of any Service Commission or
Board, by whatever name called, or a member of any selection committee
appointed by such Commission or Board for the conduct of any examination or
making any selection on behalf of such Commission or Board.
X. Any
person who is a Vice-Chancellor or member of any governing body, professor,
reader, lecturer or any other teacher or employee, by whatever designation
called, of any University and any person whose services have been availed of by
a University or any other public authority in connection with holding or
conducting examinations.
XI. Any
person who is an office-bearer or an employee of an educational, scientific,
social, cultural or other institution, in whatever manner established,
receiving or having received any financial assistance from the Central
Government or any State Government, or local or other public authority.
Persons falling under any of the above
sub clauses are public servants, whether appointed by the Government or not.
Wherever the words, “Public Servant” occur, they shall be understood of every
person who is in actual possession of the situation of a public servant, whatever
legal defect there may be in his right to hold that situation.
Public servant also includes Ministers appointed by the Central or State Government. In the case of P.V. Narasimha Rao v. State a five Judge bench of the Apex Court laid down that a Member of Parliament holds an office and by virtue of such office he is required or authorized to perform duties and such duties are in the nature of public duties. Thus an M.P. would therefore fall within the ambit of sub-clause (viii) of clause(c) of section 2 of the Prevention of Corruption Act, 1988 even though there is no authority who can grant sanction for his prosecution under section 19(1) of the Act. The Act through 2018 amendment has widened its scope and has included persons associated with commercial organisations under its ambit. The investigation is to be made by an officer, not below the rank of Deputy Superintendent of Police.
The Act has incorporated efficient
provisions to combat the practices of corruption such as appointment of Special
Judges, conducting day to day trial etc. but there are certain loopholes within
the Act which makes it difficult to curb to the menace of corruption such as
inadequacy of punishment, non applicability on foreign officials etc. There has
been increasing false cases against honest public servants to stumble their
modus operandi. In order to tackle such situations the 2018 Amendment Act has
added various provisions such as section 17A which postulates that except in
case of public official “caught in the act” all other cases will require
previous approval of relevant authority in order to begin investigation. By
amending section 4(4) a time extension has been given to decide a case but the
upper cap of 4 years has been set following the principle of ‘Justice Delayed
is Justice Denied’. There has been insertion of chapter IVA which grants power
to attach property, confiscate money tainted by corrupt activities. It also
makes giving bribe a punishable offence with imprisonment of 7 or more years. The
Amendment Act exempts those acts committed out of compulsion, provided a person
so compelled files a complaint to the police or investigating agency within 7
days of giving a bribe under compulsion.
Therefore owing to these loopholes the
Act becomes pregnable against the corruption and bribery practices as the
offenders are not startled by simple imprisonment for a period of few months or
years rather they take it as a win-win situation. Even though steps have
been taken to cure defects but dealing with bribery requires far greater
commitments. Indian Corruption laws fail to take into account provision of
seeking damages as a result of corrupt practices. It fails to make illegal
gratification paid to foreign govt. a punishable offence. There exists a huge
ambiguity regard to expressions like “Public Duty” which is left for judges to
interpret. The act does not take into account bribery among private entities.
Thus in conclusion PCA still has to make long strides in order to fulfill
India’s obligation taken under UNCAC
BY- ADMIN
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