Anti corruption act india pdf

However, the Supreme Court in the said decision chose to look beyond the plain interpretation of these definitions and took a purposive way to interpret the P. In the said decision, the Supreme Court laid down that " The present Act the Act envisages widening of the scope of the definition of the expression "public servant". It was brought in force to purify public administration. The legislature has used a comprehensive definition of "public servant" to achieve the purpose of punishing and curbing corruption among public servants.

Hence, it would be inappropriate to limit the contents of the definition clause by a construction which would be against the spirit of the statute. Bearing in mind this principle, when we consider the case of the appellant, we have no doubt that he is a public servant within the meaning of Section 2 c of the Act The word "office" is of indefinite connotation and, in the present context, it would mean a position or place to which certain duties are attached and has an existence which is independent of the persons who fill it.

Thus, the said decision brings private bankers in the purview of anti-corruption provisions of India. This can be considered as one of the landmark judgements in determining the reach of anti-corruption provisions. In order to encourage robust compliance and ethics practices, mere enactment of a law does not suffice. It further requires judiciary to correctly interpret and apply the law in the manner that it will serve the purpose of the legislation and will, as a result, deter noncompliance.

The Supreme Court through the said decision sets a benchmark by interpreting and applying the P. Act in the manner that will curb unethical and non-compliant practices in a private banking industry which indeed is the purpose of the legislation.

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Subramanian v State of Tamil Nadu Rep in which the defence party was accused of accepting a bribe. They were considered a public servant and received gratification beyond what is allowed. The only type of gratification permitted is remuneration only. As per the POCA regulation, they were found guilty beyond a reasonable doubt.

An appeal was attempted, though the idea dismissed. However, once again, this does not cover the entire picture.

The public sector entities feel the effects, though private companies do not fall within the law's boundaries. Compared to many other nations, this is a significant disadvantage as the law only covers a proportion, all be it an essential portion of the overall economy. Until more recently, the regulation had a further issue. While the receiver of the bribe has and always will receive punishment as per the law, the individual who provides the inducement could only be penalised for the act of abetting the receiver.

As such, the act of giving a bribe was not overly risky. One fundamental change relates to the issue as mentioned earlier concerning those individuals who provide bribes. As of the amendment, these individuals can be criminally prosecuted rather than being prosecuted as an abettor to the situation. This change offers significant repercussions for the other side of the bribery situation and will likely reduce the rates of bribery by merely making the risk far greater.

If one is found to be guilty, they can receive up to seven years of jail time. Further, commercial organisations will also be liable in the cases where they or an individual from within is found to provide bribes. Any individual in a position of power in those commercial entities will also be liable to receive prison time and a fine. Another aspect that has seen an amendment relates to property that is attached to the bribery situation.

It is now easy to connect said property to the claim which was not possible in the past though this regulation but rather through the likes of the anti-money laundering law. This change will simplify the processes which are necessary to help optimise the rules and their enforcement. Finally, the amendment Bill requires that such cases are brought forward as soon as possible and should receive their judgements within a period of two years. India is not in an ideal place when it comes to corruption and also global perceptions of corruption and bribery.

There is certainly an issue in the country, though regulations and changes have arisen in more recent years to combat the problem. Arguably the biggest concern for India is that they are among the largest and fastest developing nations in the world. Currently the number 6 largest economy and projected to move up the ranks in the coming years, and with one of the most significant global populations, there is, this growth is none the less being severely hindered.

Changes are coming, though, and the regulations that are currently in place have risen because the issues are known. The only matter now is to find the appropriate solutions for which the government is hard at work. There are also definite signs of progression with the global index of corruption ranking on a steady and continuous rise.

The recent amendment Bill also brought about changes as previously mentioned to further the goal of a corruption-free India.

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They are to employ our deep knowledge of the law beyond the business, the transaction, the deal. Individually and collectively, these are our efforts to help shape the thinking of our future generations, and arm them with strategies for true, sustainable growth. This is a repository of thought leadership, deep insights and strong viewpoints, legal and other news and events and how they impact the industry and our clients.

Amplifying intrinsic talent, sharpening skills, expanding knowledge, is vital to leading. It defines every aspect of how our firm functions and transacts. This is how we create new benchmarks and set industry standards. India has a federal form of government together with a strong emphasis on local self-government. At all levels, the government and government-owned enterprises play a key role in the Indian economy — in addition to performing sovereign functions, the government has a large commercial footprint in several sectors, including defence, education, civil aviation, railways a near monopoly , infrastructure and healthcare.

Consequently, conducting business in India necessarily requires interactions with the government in its various forms. Further, a number of Indian laws that impact businesses often provide for government functionaries having considerable discretion. All these factors may make government interaction time-consuming and uncertain.

Although India has fairly stringent anti-corruption laws, there was a belief in some quarters particularly outside India that corruption is a widely accepted practice in India; however, this notion has no legal or cultural basis, and corruption, although not uncommon, is not considered socially acceptable. In fact, the political and social climate in India in recent years has been pervaded by a strong public sentiment against corruption in government, with growing awareness among Indians of the cost of corruption.

Following a public outcry in upon the discovery of certain high-profile instances of corruption, there has been heightened public interest and a media spotlight on the issue of corruption.

This has resulted in the adoption of several additional measures aimed at tackling corruption in India, including the creation an independent ombudsman the Lokpal to investigate and prosecute cases of corruption by public officials including ministers , strengthening laws relating to prosecution of bribe-givers, facilitators and influence peddlers, strengthening laws against intermediaries with fiduciary duties like auditors and the enactment of laws to expand the scope of existing laws governing money laundering and benami i.

Most importantly, Indian authorities have become more aggressive in enforcing anti-corruption laws in India, aided by close scrutiny by Indian courts. Both individuals and companies are liable to be punished for an offence under the PCA. The PCA states that an undue advantage is any gratification not limited to being pecuniary in nature or estimable in money other than the legal remuneration that a public servant is permitted to receive either from the government or any other organisation served by the public servant.

In CBI v. The PCA also targets the conduct of influence peddlers or intermediaries by criminalising the act of taking any undue advantage to cause the improper or dishonest performance of a public duty. The penalties for various offences under the PCA include imprisonment ranging from six months to 10 years and a fine with one instance where it is imprisonment, a fine or both. Further, recent legislative changes to the PCA have also introduced provisions pertaining to attachment and confiscation of property procured by way of an offence under the PCA.

It is not inconceivable for investigating authorities to allege that any advantage received by a bribe-giver through the bribery which is an offence under the PCA could also be subject to attachment and confiscation, and not just the property of the public servants in question.

The PCA also provides for a time frame of two years within which courts must endeavour to complete the trial, subject to an extension of a maximum of four years. The PCA clarifies that any attempt by a public servant to obtain or accept any undue advantage is enough to constitute an offence under the PCA, irrespective of whether the public servant carried out his or her official duty improperly or dishonestly.

An attempt to give or receive a bribe is sufficient to attract liability under the PCA, and actual payment or receipt of bribes is not necessary. Offences under the PCA are investigated either by the Central Bureau of Investigation CBI in the case of offences involving allegations against functionaries of the central government or by anti-corruption branches of the state police.

Trials of PCA matters are conducted before special courts. Note that the prior sanction of the government is required for the initiation of prosecution of public servants under the PCA.

However, this safe harbour applies only to proceedings against serving and retired public servants, and not against persons accused of giving bribes. The PCA provides for immunity for a person accused of providing undue advantage if that person has been compelled to give the undue advantage and is willing to report the matter to the law enforcement authority or investigation agency within seven days of the date of giving the undue advantage.

The Foreign Contribution Regulation Act FCRA prohibits the acceptance of foreign hospitality or contributions from foreign sources by persons including government servants, employees of any other body owned or controlled by the government, judges, legislators, political parties or their office-bearers, except with the permission of the central government.

Non-governmental organisations including charities receiving contributions from a foreign source are required to be registered under the FCRA and to report contributions. Violation of the FCRA is punishable with imprisonment of up to five years or a fine, or both. The FCRA also mandates that persons such as member of a legislature or an office bearer of a political party or judge or government servant or employee of any corporation or any other body owned or controlled by the government shall not accept any foreign hospitality while visiting any country outside India without the prior permission of the central government.

The Service Rules restrict a public servant from receiving gifts including travel, accommodation, meals, entertainment or other pecuniary advantage exceeding specified thresholds which depends on the grade and seniority of the public servant ; however, a casual meal, a casual lift or other social hospitality is permitted.

The Service Rules also state that public servants may not accept lavish or frequent hospitality from commercial organisations or persons having official dealings with them. However, unlike the Service Rules, the PCA does not provide for any de minimis thresholds for gifts, meals, entertainment or hospitality, and therefore organisations need to be extremely cautious when dealing with Indian public servants.

The Service Rules also prohibit public servants from engaging in any trade, business, or other employment; holding an elective office; canvassing for a candidate for an elective office or in support of any business; participating, except in the discharge of official duties, in the registration, promotion or management of any bank, company or cooperative society for commercial purposes; and participating in any sponsored private media programme. Further, speculation by public servants in any stocks, shares or other investments is prohibited, except occasional investments in securities made through registered brokers and provided this is undertaken with prior government approval.

Under Section of the Indian Penal Code , it is an offence for a public servant to engage in any kind of trade, business, profession or occupation if prohibited from doing so and is punishable with simple imprisonment of up to a year, a fine or both. However, persons employed by the government on a contract or temporary basis are generally permitted to engage in other activities; for example, senior doctors consulting at government hospitals and lawyers engaged by the state.

Acts of private bribery and concealment thereof could be considered to constitute a fraud on or by the company, which is punishable with imprisonment ranging from six months to 10 years and a fine depending on the amount involved in the fraud — however, for fraud that is below a de minimums limit 1 million rupees or 1 per cent of the turnover of the company, whichever is lower and not involving public interest , the punishment is imprisonment for up to five years, a fine of up to 5 million rupees or both.

The Companies Act also obliges auditors in the course of performance of their duties as an auditor , cost accountants in practice in the course of conducting cost audit and company secretaries in practice in the course of conducting secretarial audit to report any suspected fraud to the central government as is detailed in Section V.

Listed companies and certain types of unlisted companies are mandated to establish a vigilance mechanism for reporting concerns and to provide safeguards for whistle-blowers.

India has witnessed a sharp rise in prosecutions for corruption-related offences in recent years, with law enforcement agencies and the judiciary aggressively enforcing the PCA — although given recent change in PCA there is limited precedent of proceedings under PCA against bribe givers. Particulars of some high-profile corruption-related proceedings in India are set out below. Since India does not publish public updates with regard to matters under investigation or pending trial, most publishable information is available from media sources and a few publicly reported judicial decisions concerning certain ancillary proceedings:.

Soon after, the spectrum was sold to larger telecoms players at a very high premium. In , the CBI, after investigating the matter, initiated proceedings against the telecoms minister A Raja, senior bureaucrats, the companies awarded the spectrum and their key officials, alleging offences under the PCA and the Indian Penal Code Later, M K Kanimozhi, a member of Parliament, was added as an accused.

In , the Supreme Court passed an order cancelling the impugned licences and directed that the spectrum be re-allotted by auction process. On 21 December , a special court constituted to conduct the trial in the matter acquitted the accused.