The Prevention of Corruption Act 2018- Benefits and Criticism

A Critical Review of the Prevention of Corruption Act 2018

Corruption is an ever-evolving and multidimensional problem. It often arises in association with poor governance, through activities like using public funds for private gain - for instance nepotism and clientelism - misuse, etc.

Corruption can often result from an absence of transparency and accountability, leading to monopoly, unfairness and feelings of injustice; it can even threaten mental health.

1. It creates more workload for the authorities

The Prevention of Corruption Act has been revised to bring it in line with international anti-corruption norms, adding offenses such as misappropriating public servant property entrusted to them and possessing assets disproportionate to known sources of income. Furthermore, this Act allows for attachment of both immovable and movable properties that may be proceeds of corruption or linked with corruption activities.

However, these new provisions aren't without flaws. First of all, they create additional burden for authorities by mandating prior approval norms before commencing investigations against public servants - something which requires significant time and effort from officials as well as potentially leading to the victimisation of respectable officers.

Additionally, many believe it criminalizes non-performance of public duties - something many see as fundamentally unjustified. This may make fulfilling duties timely more challenging for public servants and reduce quality services provided to citizens.

It seems to enlarge the definition of bribery to include undue advantage, gratification and legal remuneration - creating a risk that any person associated with commercial organizations could be penalised - this includes employees, vendors and suppliers alike.

2. It is not specific for commercial corporations

The Amendment Act adds a specific provision to punish offenses committed by businesses and those associated with them, specifically commercial organisations and their associated individuals if they provide any undue advantage to public servants. "Commercial organisations" is broadly defined and could encompass an array of employees or vendors.

Additionally, this act permits authorities to seize any property suspected of involvement in corruption cases, both movable and immovable assets believed to be the proceeds or related to corrupt activities. This can be accomplished by the Central Government or state Anti-Corruption Bureaus.

Finally, the new amendments include two forms of criminal misconduct not covered under the earlier Act: accepting bribes and misuse of public office. Furthermore, accepting them if forced is now illegal; however acts committed due to coercion will only be counted against someone if reported within seven days to law enforcement or an investigative agency.

But these changes alone won't do enough to combat corruption; to effectively counter it requires creating an atmosphere of integrity and transparency as part of legal measures. This can be accomplished through awareness campaigns, increasing access to information rights and creating transparency mechanisms.

3. It is not effective in preventing corruption

Corruption is an insidious social ill that corrodes incentives for those trusted with public office, undermines public trust in government institutions and thwarts economic development. Corruption often has detrimental impacts on vulnerable groups living in poverty; to combat it effectively requires taking steps such as strengthening legal provisions, creating an Ombudsman or Lokayukta and guaranteeing citizens timely services. To combat corruption effectively through measures such as these should be put into effect to combat it effectively.

The Prevention of Corruption Act (PCA) in India serves as a key anti-corruption statute. To be enforced, police officers require approval from responsible authorities before initiating investigations into actions of public servants; it also protects former public servants who committed certain offenses during their term, such as misappropriating property entrusted to them and possessing excessive assets.

Additionally, the PCA was amended to make bribe-taking an offense punishable with imprisonment up to seven years; however, this amendment exempts those forced into giving bribes as long as they report it within seven days of it occurring.

Additionally, the act includes a provision that penalises commercial organizations that offer bribes through intermediaries or third parties to public officials - an offense punishable with imprisonment of three to seven years and fines. While these developments are laudable, they do not go far enough in strengthening and improving an anti-corruption regime's effectiveness.

4. It creates more division in the society

The Prevention of Corruption Act defines corruption as any act or omission by which someone who is obliged by moral, legal, or constitutional mandate to perform public duties does not fulfill them. Violators will be punished, with habitual offenders facing imprisonment that could span seven years and fines.

The amendment to the Act narrows down criminal misconduct to two forms - which is welcomed. These are misappropriation or conversion for personal use of property entrusted or controlled by public servants; and amassing unexplained wealth.

One positive change is the addition of liability for commercial organisations when engaging in practices such as taking bribes or giving improper benefits to public officials, helping eliminate corrupt practices within corporate environments.

However, the act does make prosecuting government employees for corruption more challenging. According to its terms, certain criteria must be fulfilled in order to proceed with prosecution, including sanction from an authority with authority to dismiss an employee and special judges who may become overworked due to so many corruption cases they must oversee.

To achieve full growth, the country needs a strong machinery to rule. There have been constant reforms since 2014, and one among them is – Prevention of Corruption Act. The prevention of Corruption Bill was passed in July 2018 in Parliament.

Bureaucracy and Corruption- There are enough provisions to tackle with corrupt officials. The abused faced by certain honest officer happened due to section 13(1) (D)(iii) of Prevention of Corruption Act 1988. According to this section when any honest official tried to a take a decision related to even some crucial sectors such as Mines, Coals and Petroleum, they were accused of ‘pecuniary (Related to Money) advantage for any person’ .

What is Section 13(1)(d) Of Prevention of Corruption Act(PCA) 1988?

Under Section 13(1) (d) of PCA 1988, it laid down five forms of criminal misconduct by public servants. Finding that some officers were giving in too easily to corrupt demands— and did not do anything to resist such demands under the belief that as long as they were not beneficiaries, no criminal liability was liable to be attached to officers.  Section 13(1) (d) (iii), a public servant commits the offence of criminal misconduct if he, “while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest”.

Original Law of PCA- Section 13

This stopped bold decision making and hampered the growth of the Economy as well.

What is new?

1-      Giving a bribe is now included as a crime.

2-      If anyone forces to give bribe then the bribe-giver must inform the authorities within seven days of giving the bribe.

3-      Also included for the first time is the liability for ‘commercial organizations’, which will be punished if any person associated with them, provides or promises to provide, undue advantage (Some sort of benefits) to a public official.

4-      Under the new Section 17A, except when a public official is caught ‘redhanded', the police cannot begin a probe, without the approval of the relevant authority, of any public official.

5-      The new Section 18A also introduces a provision for special courts to confiscate and attach the property acquired through corrupt practices.

6-      To ensure speedy justice, guidelines will be set under the Amendment Act included a limit of resolving cases within two years.

7-      One of the fundamental features of the amended act is that a new section — Section 17A — has been inserted, which bars an “enquiry or inquiry or investigation” by an anti-corruption agency (CBI included) against a public servant in matters relatable to the discharge of his official duties, without the prior approval of the Centre or the state government, as the case may be, or the disciplinary authority. This provision would apply to all public servants, including the lowest rungs of administration. Importantly, no enquiry is now permissible against an incumbent minister or, for that matter, a former minister, without the prior approval of the President. In case of MPs and MLAs, approval of the Speakers concerned shall be essential.

Criticism-

1-      By divesting the anti-corruption agencies of initiative in combating corruption, this provision is likely to render them toothless. As now anti- corruption agencies need more approval than the past.

2-      Cases may be delayed as permission is needed.

3-      In case the case extends more than two years which is given limit for a corruption case to be closed, it is unclear that what would happen to the case.

4-      The public servants often show undue favors to third-parties without leaving any evidence of quid pro quo or acceptance of “undue advantage”. As provision protects honest officers yet it may help those corrupt officials to escape safely.

5-      The top executives of the public sector financial institutions are likely to escape the long arm of the law despite evidence of showing undue favors — because there is no evidence of their intentions as well as law supports the decision making.

Conclusion - It appears that the amended law is public servant-friendly, concentrates the decision-making power with the government in matters of initiation of enquiries and investigations but deprives the anti-corruption agencies of initiative in combating corruption. It needs a relook. Time-bound decision-making is the best way for ease of justice, and GoI must be complimented for introducing such provisions in statutes, including the Insolvency and Bankruptcy Code (IBC). 

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