India’s Untapped and Briddled Rider – Eduinfo

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Introduction

India, acknowledging the need to assimilate and prevent corrupt activities in the country, introduced a corruption prevention act back in 1988. However, despite the foresight of our legislators and the timely construction of the act, the code did not create much of a difference.[1] The legislative piece meant to control and restrict all illegal and unethical activities in the public, as well as the private sector, failed to bring about a significant change. Public officials, even after the act’s induction, made off with their illicit activities; while private corporations were never held accountable for their unlawful exploits. The state recognized the act’s intermittent failings and to make it more effectual, introduced the 2018 amendment. The amendment brought about a significant number of changes; it was India’s effort to align itself with the United Nations guidelines on corruption prevention,[2] and construct a legal provision which incorporated international standards on the restriction of illegal malversations.

A multiplicity of features such as definitive meanings for ‘undue advantage’, ‘property forfeiture’, and new rules for commercial organizations were introduced. The act which recently dealt with cases like Madhu Kodhe’s bribery charges,[3] was significantly advanced from its original form. Nevertheless, the changes made and the characteristics instituted were not enough. The legislation, despite its recent changes, forms multiple issues in the application and creates a number of modalities inconsistent with the idea of preventing corruption. A deeper analysis of the act and the judgements passed under it, preclude a number of issues. Accordingly, the aim of this feature is to analyze the prevention corruption act, cover the UN guidelines on the issue, present the current scenario around it and suggest a few measures for reform.

The United Nations Anti-Corruption Multilateral Treaty

The UN’s treaty on corruption prevention is the only international agreement outlining corruption deterrence standards for all member states. The treaty made enforceable in December of 2005;[4] formed a combination of both preventive and punitive measures that restricted cross border illegal activities and provided intergovernmental norms for subscribing nations. The department, with its head office in Vienna,[5] set some practice rules for ratifying parties to increase co-operation in international investigations and expand the efficiency of the state-based public accountability centres.[6]

The convention includes multiple elements ranging from trade influencing to asset recovery; however, there are five key tenets- criminalization, preventive measures, international co-operation, technical assistance and law enforcement.[7]          All of the varying provisions of the treaty can be broadly covered under either of the above-mentioned fields. The provision, despite being restrictive and contractual, covers a variety of issues and a multiplicity of situations and at no stage becomes extensive. International asset recovery, amongst other features, has been a prominent function of the treaty to increase judicial co-operation and strengthen law enforcement mechanisms.[8] The act was originally passed by 140 member nations[9]and incorporated overarching features to ensure operational and functional accountability. Article 63 of the treaty establishes a Conference of State Parties, with UNODC as its secretariat, to increase co-operation and maintain intercontinental sustainability.[10] The conference has instituted multiple international regulations and formed various sub-committees to implement specific aspects and goals of the UNCOC.[11] India ratified the treaty in 2011 and joined the conference to enhance its domestic corruption prevention measures.

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Key Facets of The Amendment and The Current Scenario

The Prevention of Corruption Amendment Act, 2018 introduced a variety of new features. A key amongst the many is the inclusion of the new guidelines for organizations to prevent their employees and other representatives from acting against the interests of the general public. Section 9[12] of the act was expanded to modify the ambit of individuals who qualify as representatives of commercial organizations. The section includes a phrase, “persons associated with commercial organizations,” which goes beyond the previously restrictive idea of only employees and covers associations as an individual in nature as vendors and distributors to impute organizational liability.

The act under section 4(4)[13] also eliminates the earlier requirement of wrapping up proceedings for corruption charges within a maximum period of two years. The judiciary was earlier required not to extend a cases’ hearing beyond twenty-four months; however, such an unnecessary restriction doesn’t exist anymore. A provision which quite a few times hampered the investigation process and estopped the prosecution from forming constructive charges and proving them in court was fortunately removed.[14] The court now has the power to grant extensions of up to six months at one hearing, with a maximum entailment period of four years.[15]

Moreover, an incredibly essential feature that the amendment added was to remove criminal liability for corrupt actions performed under compulsion.[16] Section 8 punishes individuals for attempts to bribe officials and representatives; however, the amended piece now includes a provision of exemption for any person compulsorily made to offer bribes. The act does not impute any liability if the coerced individual reports his/her actions to the police within seven days of giving a bribe.[17] The act’s new features also grant cohesive punishments- Section 9 and 10 together impute liability on both the organization’s attempting to carry out corrupt activities and the public officials facilitating them, all under one charge.[18]

The most recent action under the legislative piece has cleared all confusions regarding its retrospective applicability. It was argued in Madhu Kodhe’s v. State through CBI,[19] that the ex-chief minister of Jharkhand should be relieved of all his corruption charges in accordance with the lack of ‘Mens Rea’ of the accused to carry out his alleged charges. The court held that section 13[20] of the amendment act, does not entail any retrospective applicability and the ‘doctrine of beneficial construction’ will not be held applicable in Madhu Kode’s case.[21]

The various tenets amended and added to the act, create a much more enforceable provision; nevertheless, the code still has multiple issues in practice and application. No act can be amended to sufficiently remove all issues; however, the prevention corruption act leaves out many key features that require immediate addressal.

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THE ACT’S INADEQUACIES

One of the rather detrimental changes that the amendment brought about is the increase in stronghold requirements for charges against public officials; to a certain level, diluting the instances in which a state’s officer can be held liable.[22] The amended section 13[23] holds measures of disproportionate assets such as unjust enrichment and property alleviation, as grounds to impute liability and discards the earlier simpler practice of charging criminal misconduct on an official’s attempts to indulge in illicit activities and accept bribes. The standard for the act’s application has been unfavourably increased. The act also necessitates the requirement of seeking permission applications to conduct investigations against public officials. Under section 19,[24] if an officer of the state were to be investigated for criminal charges, a barrage of permissions from different individual authorities are necessary to even bring the other interrogatory provisions of the act into play.[25]

The act along with creating problems in probing officials; also has a variety of interpretational issues.[26]It, for now, does not describe the necessary steps to be taken if the case goes beyond the new maximum time period of four years. It also leaves out many lacunas in imputing chain liability for an illegal liability. Its definition of ‘undue advantage’ uses incredibly generic terms, which may create the impression that any individual or organization related in whichever way possible, no matter how inconsequential, can be prosecuted.[27]Moreover, its bare reading also gives the impression that any organization contracting with international bodies which are involved in illicit activities, will be held liable for the international organization’s actions, regardless of the fact whether they had knowledge of the acts in question or not. This simple addition may greatly restrict India’s foreign interaction and may even Foreign Direct Investments.

Despite the multiple favourable additions in the act, and the new more efficient systems of interdepartmental transparency, the act by itself, as visible from above-mentioned factors, is not complete. It must address the new issues of accountability enforcement, interpretational inadequacies and the possibility of overarching applications. The provision for corruption prevention, in a country as economically diverse as India, must be as equitable as possible.

CONCLUSION

In an attempt to conclude the feature, the act may, in fact, have variably changed the rather ineffective operations in controlling the country’s corruption. Nevertheless, for it to be an equitable legislative piece, it must remove the newly included higher standards for liability imputation on public officials. Not only does it substantiate differentiated standards for private organizations and the government; it creates an inequitable idea for a legislative piece’s application. If the country’s rather rampant corruption trail was to be controlled and provisionally uprooted, such a decisive free hand must not exist. Consequently, the vision of our country’s legislators back in 1988 was to ensure the country’s safety from any acts which may divest citizenry rights, and in order to stand true to that testament, we must make a provision, as equitable and enforceable as possible.

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[1]The Prevention of Corruption (Amendment) Act, 2018.

[2]United Nations office on Drugs and Crime, United Nations Convention Against Corruption, available at https://www.unodc.org/unodc/en/treaties/CAC/ (Last visited on May 26th, 2020).

[3]Madhu Koda v. State of Jharkhand, AIR 2012 SC 782.

[4]United Nations office on Drugs and Crime, United Nations Convention Against Corruption, available at https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf (Last visited on May 26th, 2020).

[5]U-4 Anti-Corruption Resource Centre, UNCAC in a Nutshell 2019, January 2019, available at https://www.u4.no/publications/uncac-in-a-nutshell-2019 (Last visited on May 26th, 2020).

[6] United Nations Meeting Coverage and Press releases, Battle against Corruption Vital to 2030 Agenda, May 23rd 2018, available at https://www.un.org/press/en/2018/ga12017.doc.htm (Last visited on May 26th, 2020).

[7]Supra Note. 2.

[8]UN News, UN Convention against Corruption, a tool to recover stolen assets, takes effect, December 14th 2005, available at https://news.un.org/en/story/2005/12/163672-un-convention-against-corruption-tool-recover-stolen-assets-takes-effect (Last visited on May 26th, 2020).

[9]United Nations Office on Drugs and Crime, Signature and Ratification Status, available at https://www.unodc.org/unodc/en/corruption/ratification-status.html (Last visited on May 26th, 2020).

[10] Id.

[11]Supra Note. 8.

[12]The Prevention of Corruption (Amendment) Act 2018, § 9.

[13]The Prevention of Corruption (Amendment) Act 2018, § 4(4).

[14]Supra Note. 3.

[15]Id.

[16]The Prevention of Corruption (Amendment) Act 2018, § 9.

[17]Id.

[18]The Prevention of Corruption (Amendment) Act 2018, § 9 & 10.

[19]Madhu Koda v. State of Jharkhand, AIR 2012 SC 782.

[20]The Prevention of Corruption (Amendment) Act 2018, § 13.

[21]Live Law, Prevention of Corruption (Amendment) Act 2018 Will Not Affect Offences Committed Prior To Its Enactment: Delhi HC, May 23 2020, available at https://ezproxy.nujs.ac.in:2123/news-updates/prevention-of-corruption-amendment-act-will-not-affect-offences-committed-prior-to-its-enactment-delhi-hc-read-judgment-157219 (Last visited on May 26th, 2020).

[22]Mondaq, Prevention of Corruption (Amendment) Act, 2018- Key Highlights, August 9,2018, available at https://www.mondaq.com/india/white-collar-crime-anti-corruption-fraud/726890/the-prevention-of-corruption-amendment-act-2018-key-highlights (Last visited on May 26th, 2020).

[23]Supra Note. 13.

[24]The Prevention of Corruption (Amendment) Act 2018, § 19

[25]The Prevention of Corruption (Amendment) Act 2018, § 7, § 11, § 18 & §19.

[26]Lexology- Khaitain & Co, Prevention of Corruption Act, 2018– Booster for the Honest and Corrupt, August 1, 2018, available at https://www.lexology.com/library/detail.aspx?g=8d4787ba-7ad9-473d-a996-af043369b73b (Last visited on May 26th, 2020).

[27]The Prevention of Corruption (Amendment) Act 2018, § 7(a) & 8.


ABOUT THE AUTHOR

Sri Hari Mangalam

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Sri is a first-year law student at the West Bengal National University of Juridical Sciences. He hopes to acquire adroitness in a variety of legal spheres. He is currently interested in matters of Contract and competition law and is pursuing literary advancements for the Indian Law of Torts field. In his spare time, he likes reading and writing fiction and non-fiction pieces, watching movies, swimming and playing the occasional game of golf.


Source: thelawblog
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