The Law Commission, on 12 Feb, 2015 came out with its 254th report titled “The Prevention of Corruption (Amendment) Bill, 2013.” The report highlights yet another instance of poor drafting, inconsistent thought process and even, mindless borrowing from foreign legislations in legislative bills. Though the phenomenon is nothing novel, the original bill is wanting in providing any clear idea as to the intention or purpose behind proposing the amendment.
The Prevention on Corruption (Amendment) Bill, 2013 sought to amend the Prevention of Corruption Act, 1988, Delhi Special Police Establishment Act, 1946 and the Criminal Law (Amendment) Ordinance, 1944. It was introduced in the RajyaSabha on 19th August 2014 after which it was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice, which amended the bill. In its modified form, the bill was referred to the Commission for its recommendations. The bill was deemed necessary in light of India’s ratification of the UN Convention Against Corruption (UCAC) in May 2011 along with a need to draw parity and create conformity with international best practices.
Among its several recommendations, the foremost is the need to remove ambiguity and provide clarity in cases relating to bribery perpetrated by public officials. While the bill draws substantially from the United Kingdom Bribery Act, 2010, it does so without any application of mind or regard for the context. The United Kingdom Act deals with a plethora of bribery and anti-corruption legislations. However, the Indian anti-corruption law is mostly restricted to acts perpetrated by public servants/officials.
Several instances of inconsistencies and redundancies exist in sections 7 and 8 of the bill. These provisions dealing with demand side offences such as public servants being bribed, have been poorly drafted, as is often visible from the rampant plagiarism and the lack of coherence so palpable in the bill. Several provisions contain expressions which have either not been defined or whose expression is wholly ambiguous. The Law Commission has given detailed recommendations, suggesting proper definition of offences sought to be punished by the Act, as well as for removal of redundancies and inconsistencies in the bill.
Section 9 of the Act, which proposes to hold commercial organisations liable for offering a bribe to a public servant in order to obtain or continue to obtain a benefit/favour/privilege, postulates “adequate standards” to be followed by these organizations in order to curb the menace of corruption. This provision has once again been hurriedly lifted from the UK Bribery Act. However, the UK Act makes it mandatory for the government through the Secretary of State, to cause to be published proper guidance throwing light upon “adequate procedures” from time to time and for different businesses. The lack of any such obligation required of the government in the Indian bill may cause confusion as to the exact domain of “adequate standards”, especially for small businesses not capable of deciding upon the precise standards of due diligence required of them.
Section 10 of the Act which flows from section 9, holds the officials of a commercial organizations (directors, managers etc.) liable for an act of bribery by the commercial organization or one of its officials. These officials, who may not have any clue as to the offence committed, are to be held liable unless they are able to discharge a high burden of proof as to their innocence in the matter. The said provision has the potential to cause devastating effects to corporate governance reforms. The provision itself could become a reason for extortion and bribery.
The 20th law commission has recommended that section 9 be modified to include a specific obligation upon the government to publish guidance with respect to “adequate standards” after consultation with experts and garnering proper suggestions from the public. With respect to section 10, it recommends that the imposition of liability be limited to the officials responsible. Several other key provisions have also been modified or approved.
by Siddhartha singh.