Amendments extend reach of India’s anti-bribery law

By Manoj Kumar, Hammurabi & Solomon
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The passage of the Prevention of Corruption (Amendment) Bill by the parliament in July promises deep-seated reforms in the anti-bribery regime in India. Under the bill, the act of obtaining, accepting or attempting to obtain an undue advantage, with or without improper performance of a public duty by a public servant, was made an offence punishable with up to seven years imprisonment.

Manoj KumarFounder and managing partnerHammurabi & Solomon
Manoj Kumar
Founder and managing partner
Hammurabi & Solomon

Under the present law, only abetment of acts relating to bribery were punishable and it was presumed that acceptance of advantage was in return for improper performance of a public servant’s public function. The bill contains no such presumption of wrongdoing. The bill also omits the previous provision safeguarding a person giving a bribe from prosecution based on their statement in a corruption trial. The bill requires that commercial organizations follow guidelines in order to prevent their members from engaging in bribing a public servant.

The bill further provides that inquiry or investigation into any offence can be conducted only with prior approval of the concerned authority except in cases where a person is required to be arrested on the spot on the charge of accepting or attempting to accept undue advantage, i.e. arrest on being caught red-handed. The decision by the authority has to be given not later than three months after the request, extendable by not more than one month.

The bill mandates prosecution of former employees for offences alleged to be have been committed during their employment, as against the present law, which only applies to serving officers. The bill also amends the scope under the law of the offences of fraudulent or dishonest misappropriation of property entrusted to or under the control of a public servant and intentional enrichment of oneself illicitly during one’s period in office.

The bill has done away with the offences of habitual taking of bribes, getting anything free or at concessions, and gaining pecuniary advantage for oneself or another without public interest. The bill makes the possession of pecuniary resources or property disproportionate to a public servant’s known sources of income, without a satisfactory explanation, the basis for the offences. The bill also provides for attachment and forfeiture of property under the aegis of a “special judge”. The bill seeks to ensure timely conclusion of trials, with a time limit of two years, extendable by periods of six months each, not exceeding a total period of four years, provided the extensions are done for reasons duly recorded by the special judge.

The bill, first introduced in 2013, followed India’s ratification of the United Nations Convention against Corruption in 2011, which mandated amending the country’s anti-corruption laws in line with the convention.

The bill is being seen as a major way forward to encourage transparency in implementing an effective anti-corruption regime, in addition to enabling a “free of fear” space for public servants to take bona fide decisions on merits. Fear of the four Cs – Central Bureau of Investigation, Central Vigilance Commission, Comptroller and Auditor General and courts – had been seen as an impediment to decision making. With bribe-givers within the net of “anti-corruption” with imprisonment up to seven years, the bill marks a major departure from the present law, which primarily focused on public servants. The sweeping reforms also seek to prevent and curb the reoccurrence of the recent spate of corporate and banking frauds in India.

Companies dealing with public servants need to act swiftly to put in place measures to prevent violations of the anti-bribery law after the provisions of the bill come into effect, holding the senior management accountable for offences committed by employees and agents of the company with their approval, for the advancement of the business interests of the company.

While the bill holds bribe-givers as well as bribe-takers accountable for bribery, the law remains limited to bribing a public servant only. The path to an overarching anti-bribery regime also covering bribery and corruption within the private sector still needs to be covered by corporate governance. The bill, however, is certain to make it easier to operate and do business in India for companies that have or put in place an effective ethical and corruption risk management framework.

Manoj Kumar is the founder and managing partner at Hammurabi & Solomon.

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