Corruption has been most prevalent among public servants (i.e. government officers) since the colonial period in India. The act of taking bribes or any other form of gratification other than legal remuneration by any person to pursue doing any work is known as corruption. This act of corruption is prevalent with both public and private entities.
The corrupt practices prevalent among the public servants ultimately result in the administration’s failure to cater to the development of the underprivileged.
“Corruption is paid by the poor” – Pope Francis.
In this scenario, public servants brought the Prevention of Corruption Act to curb corruption by public servants. So, the anti-corruption legislation was to curb bribing or receiving bribes by public servants.
The Act provides penalties for corruption or an act of corruption by public servants.
Prevention of Corruption Act
Section 171B of the Indian penal code, 1860, provides a ‘bribery’ definition.
A public servant involved in corruption acquires undue advantage by gratification other than legal remuneration.
Legal remuneration is the amount of remuneration a public servant receives from the government or any other organisation he serves.
Santharam committee and its recommendations
The Santharam committee was created in 1960, and its chairman K. Santhanam headed it. The reports of this committee got submitted in the year 1962.
The observations of this committee were that “Corruption cannot be eliminated or reduced unless preventive measures are been taken and implemented in a proper manner. Preventive measures must include administrative, legal, social, economic and educative measures”.
A central vigilance commission got established in 1964 on the recommendations of the Santhanam committee for enquiring about the corruption cases against the central government officers.
Recommendations by the committee
- The employees of each department should get rejuvenated from time to time by organising recreational activities for them.
- Citizens of the country should get educated and made aware of their rights and responsibilities. The citizens should be mindful of the way of operation of the government and its agencies.
- Each department, undertaking, or ministry needs thorough research in consequence of that preventive measures should be suggested.
- The employee’s salaries must be increased from time to time. They should have various allowances and their salary, such as housing, medical, travel allowance, etc.
- Companies and businessmen are obliged to maintain detailed accounts of expenditure.
- The selection of the administrative officers should be handled with due care and caution through a properly established procedure. The one fulfilling all the required criteria should get appointed as an administrative officer.
- Avoiding corruption practices by reducing delays in administrative operations.
- The government servants will not be empowered to enrol in any private commercial employment for two years after retirement.
- The authorities should ensure the enforcement of the laws at a higher pedestal in the hierarchy.
- The media’s role is in encouraging honesty, and discouraging corruption is a requisite.
Key laws and regulations addressing corruption
The Prevention of Money Laundering Act, 2002 provides the prevention of acts of money laundering, and the government is authorised to confiscate the property earned from illegally gained profits.
The Companies Act, 2013 provides for fraud and corruption in the corporate sector.
The Indian Penal Code, 1860 incorporates provisions to prevent bribery, fraud matters, criminal breach of cheating and trust by laying sanctions on these acts.
The Foreign Contribution (Regulation) Act, 2010 regulates the receiving and use of foreign contributions by individuals and corporations established in India.
The Lokpal and Lokayuktas Act, 2013, establishes an ombudsman to inquire against state and central government officials in alleged corruption cases. These bodies are independent of political control and get empowered to inquire into corruption allegations against public authorities, including the prime minister and other ministers.
Genres of the person falling within the ambit of a public servant
A public servant is mainly responsible for discharging the public duty entrusted to him.
A public duty has an interest of the state, the public and the community at large is known as per section 2(b) of the Prevention of Corruption Act. It mainly gets performed to address an issue involving the welfare of the public or community at large or a topic in which the government is concerned.
The definition of the term ‘public servant’ is laid down under section 2(c) of the act of 1988.
It states that a public servant means,
- Any person who is under government service and receives remuneration by the government in the form of a fee or commission for discharging the duty entrusted to him
- Any person in the employment of a local authority for providing services
- Any person under the service of a public authority or government organisation or any other such organisation established under statutory legislation
- Any Judge or other person empowered by law to discharge any adjudicatory functions.
- Any person authorised by a court to perform any duty for maintenance of justice in society
- Any arbitrator to whom any matter gets referred for decision or report making by a court or a competent public authority.
- Any person empowered to prepare, publish, maintain or revise an electoral roll or conduct an election or anything related to the same.
- Any person who is authorised or required to discharge any public duty
- Any person who is an office-bearer of a registered co-operative society engaged in any work like agriculture, industry, trade or banking who is receiving or received aid from any corporation established under any statutory act or owned, controlled or aided by the government
- Any member or employee of a service commission or board which appointed them for the examination conduct or making any selection on behalf of the Commission or Board
- A Vice-Chancellor or member of any governing body, reader, professor, lecturer, or other teacher or employee of any university. And any person providing services to a university or any other public authority in connection with holding or conducting examinations.
- Any person who is an employee of an educational, scientific, social, cultural or any other institution, who is receiving or received any financial assistance from the Central Government or any State Government, or local or other public authority
Recently, this Prevention of Corruption Act has undergone an amendment in 2013 and 2018 by introducing the prevention of corruption (amendment) act, 2018.
The amendment of 2018 defined the terms ‘undue advantage’ and ‘gratification’.
Section 2(d) defines undue advantage as a gratification other than legal remuneration.
While the word gratification, as defined under section 2(d) clause (a) of this act, is not limited to pecuniary gratifications or gratifications estimable in money.
The amendment act of 2018 led to the introduction of section 17A under this act, which states the provision related to the enquiry or investigation of offences made by a public servant to discharge his official functions or duties.
The amendment act of 2018 also states that no police officer is authorised to conduct an enquiry or investigation into any alleged offence committed by a public servant in discharge of his official functions or duty without the prior approval of the authority competent to remove him from his office.
The Prevention of Corruption (amendment) act, 2018 also introduced a new chapter (i.e. Chapter IVA) containing a provision for attachment and forfeiture of the property.
Section 29A was introduced, which enshrined the power in the hands of the central government to enact rules for carrying out the provisions of the act.
The trial under this act should get completed under subsection (4) of section 4 within two years.
Offences and penalties under the Prevention of Corruption Act
The Prevention of Corruption Act mentions the offences and the punishments prescribed. Chapter III from sections 7 to 15 of the act mentions the offences and their punishment.
These are the following:-
- Section 7:- Section 7 of the Prevention of Corruption Act states that if any public servant obtains or attempt to obtain undue advantage from any third person
- To cause him to perform his public duty improperly or dishonestly or to restrain himself or any other public servant from performing his duty.
- As a reward for discharging his public duty dishonestly or restraining oneself or another public servant from doing the same
If such a public servant induces another public servant to discharge his duty dishonestly or restrain from performing his duty, such an act also gets covered as an offence under this section.
The offences under this section are punishable with imprisonment for a term of at least three years, extending up to seven years and also liable to be fined.
- Section 8:- It states that in case any public servant gives an undue advantage to another person to induce or to reward such a public servant for the improper performance of his public duty. The person committing such offence will get imprisonment for a term extending up to seven years or with a fine or both
Sub-section (2) of this section has a non-obstante clause containing an exception to sub-section (1). If a person performs an act mentioned under sub-section (1) after informing a law enforcement authority to assist such authority in investigating such offence, then it is not considered an offence.
- Section 9:- If a commercial organisation commits an offence under this act to give a public servant with an undue advantage to obtain a business or benefit in the conduct of business for some organisation, then such offence will be punishable with a fine.
- Section 10:- An offence committed under section 9 of the Prevention of Corruption Act with the consent of any director, manager, secretary or any other officers of the concerned commercial organisation then such director, manager, secretary or other officers will be guilty of such offence and will be liable to be punished with a minimum imprisonment period of 3 years extending up to 7 years or with fine.
- Section 11:- When a public servant obtains an undue advantage, then such a public servant should get punished with imprisonment of 6 months, which may extend up to 5 years can also be liable to fine.
- Section 12:- If any person abets an offence punishable under this act, no matter whether the offence is consequential to that abetment, then that person will be punished with imprisonment for a minimum term of 3 years and a maximum of up to 7 years with fine.
- Section 13:- This section provides punishment for a public servant found guilty of criminal misconduct.
If a public servant dishonestly misappropriated any property entrusted to him as a public servant in his use or allows any other person to do the same or illicitly enriches himself during the period of his tenure, then such public servant will be guilty of criminal misconduct, which is punishable with for a minimum period of 4 years of imprisonment extending up to ten years with fine.
- Section 14 & 15:- Section 14 of this act provides punishment for a habitual offender.
A habitual offender gets defined as a person repeating the same offence on a subsequent basis; that person will be liable for imprisonment for at least 5 years and at max 10 years with a fine while,
Section 15 of the Prevention of Corruption Act provides punishment for abetment of an offence mentioned under sub-section (1), section 13 of the act, which will be a minimum of 2 years and a maximum of 5 years with a fine.
The causes of corruption in India are poverty, political pressure among public servants, Unequal representation in government services, etc. There are many legislations in the current scenario which deal with economic offences. One such legislation is the Prevention of Corruption (PC) act 1988, which deals with the corruption and bribery issue with public servants discharging public duty.
The offences under the Prevention of Corruption Act dealing with corruption by public servants are mainly handled and investigated by the anti-corruption bureau in India. The anti-corruption laws in India are so stringent, but their enforceability is not on the same pedestal. The people should be made aware of the causes of corruption in India and its repercussions.
Can a public servant be prosecuted without the prior permission of the competent authority authorised to remove him from his office?
No, a public servant cannot get prosecuted without the prior permission of the competent authority to remove him from his office as per section 19 of the act of 1988.
Who is authorised to appoint a special judge under PCA, 1988?
The central government or the state government can appoint special judges under this as per section 3 of the PCA, 1988.
Which section of the act of 1988 states that the criminal law amendment ordinance 1944 applies to attachments under this act?
Which section mentioned the mandate for obtaining the prior sanction for initiating enquiry or investigation against a public servant?
Section 17A of the Prevention of Corruption Act 1988.