By Swarna Sengupta
Corruption is a pervasive problem in India. Almost 9% of our gross domestic product is hampered due to corruption, and at least $1trillion is lost every year.1 Widespread corruption and bribery undermines the administrative system. It has grave implications for the economic and political framework and severely affects the social fabric of Indian society. Corruption is a roadblock on the way to development and can be termed as a “crisis of governance”.
India ratified the United Nations Convention against Corruption (UNCAC) and the United Nations Convention against Transnational Organised Crime (UNTOC) in 2011. However, much before the ratification, we already have an anti-corruption law in place since 1989 known as the Prevention of Corruption Act. The Act was amended in 2018 in order to keep up with the international standards. The objective of this Act is to build accountability measures within the systems of the government and pursue criminal charges against corrupt public servants in order to deter the evil of corruption.
How is corruption defined under Indian law?
The Prevention of Corruption Act does not use the term corruption or bribe, but instead uses the phrase “undue advantage”. Undue advantage is defined as any benefit which is given to a public servant. The bribe can be monetary or non-monetary, such as gifts etc. The benefit which is given should be something other than the public servant’s lawful salary or any other lawful payment owed to the public servant.
Who are considered to be public servants under the corruption law?
The following persons are “public servants” under this law:
- Whoever works for the government or gets their salary from the government
- Anyone who works for and is paid by a local authority
- A judge
- Anyone who works in the court, including a liquidator or receiver
- An arbitrator
- Anyone working for a state or central co-operative
- Anyone working in a government company or in a body controlled or aided by the Government
- Anyone who works in connection with electoral rolls or to conduct elections
- President, Secretary, or any office-bearer of a registered co-operative
- Vice-Chancellor, teacher or employee of any University
- Anyone who is a chairman or employee of a Service Commission or of an educational/scientific/ social/cultural or other institution receiving financial assistance from any Government.
- Any other person who holds office owing to which he needs to perform a public duty.
Any of the above public servants performing any job in relation to their office, are doing their public or official duty.
When does a public servant commit the offence of taking a bribe?
A public servant is guilty of taking a bribe when he/she accepts or attempts to obtain any unofficial money or gift for:
1. performing official duty;
2. improperly performing official duty;
3. not doing official duty.
Even if a public servant takes the bribe on behalf of another public servant or receives the bribe through a third party, he/she will be guilty.2
Apart from taking bribes, a public servant can be held liable for criminal misconduct as well. Such criminal misconduct includes a situation where a public servant:3
- dishonestly or fraudulently misuses another’s property which is kept in his possession, or allows someone else to do so; or
- intentionally gets benefits for himself in an unlawful way.
The law presumes that the public servant has conducted himself criminally if, during the time he holds office, the value of his resources is more than the income he earns through lawful means.
What is the punishment for taking a bribe?
A public servant who takes a bribe can be imprisoned for 3 to 7 years, along with a fine. A public servant can also be punished for criminal misconduct with imprisonment for 4 to 10 years, along with a fine.
It does not matter if the public servant was successful in criminal misconduct, even if he attempted the same he can be imprisoned for 2 to 5 years, along with a fine.
Can you be charged for giving a bribe?
Yes, giving a bribe is as much a crime as taking a bribe. If you give any unofficial money or gift to a public servant to influence or reward the public servant to improperly do his official duty, you are committing a crime, even if you gave the bribe through a third party. For example, if you give a public servant Rs. 10, 000 to ensure that you are granted a license over other people, you are guilty of an offence.
As a third party facilitating the bribe, if you take any money or gift from another person to personally influence a public servant by corrupt or illegal means, you are also liable for giving a bribe.4 You will also be held liable if you help a public servant receive or act on a bribe. Read more here.
What is the punishment for giving a bribe?
If you are guilty of giving a bribe you can be imprisoned for upto 7 years and/or fined. If you facilitate a bribe using corrupt or illegal means as a third party, the punishment is imprisonment for 3 to 7 years along with a fine.
Will I be guilty even if I was forced to give a bribe?
You won’t be guilty of giving a bribe if you are forced to give it. However, you need to report this to a law enforcement agency within 7 days from giving such a money/gift. Alternatively, if you give any bribe to assist the law enforcement agency when they investigate an offence, you will not be guilty.5
Can a company be made liable for giving a bribe?
Yes, a company can be guilty of giving bribes under Section 8 of the Act if any person associated with the company gives a bribe to keep or benefit the company’s business.
However, a company can be exempt from the same if it has adequate procedures to ensure that its employees don’t undertake such conduct, as prescribed by the Government.6
Who is charged for an offence of a company giving a bribe? What is the punishment?
A person in association with the company can be an employee or an agent of the company. When associated persons give the bribe, they are to be punished with a fine. If the bribe is given with the knowledge of any director, manager, secretary or other officer of the company, then he/she shall be imprisoned for 3 to 7 years, along with a fine.
Despite such stringent laws, India in 2018 was ranked 78 out of 180 countries in the Corruption Perception Index released by Transparency International. Corruption in India is a foundational problem. Therefore, we not only need to strengthen the implementation of the Act, but also adopt other practises such as awareness campaigns, strengthening right to information, formulating transparency mechanisms etc. at every level of the government to counter the problem.
Swarna Sengupta is a student at NUJS, Kolkata and a member of the Kautilya Society, an initiative of Vidhi Centre for Legal Policy. Views are personal.
- See https://www.hindustantimes.com/india/india-losing-1-trillion-annually-to-corruption-study/story-uK7Q0iC9mlEdr7Lld2rVCM.html[↩]
- Section 7, Prevention of Corruption Act, 1988[↩]
- Section 13, Prevention of Corruption Act, 1988[↩]
- Section 8 and Section 7A, Prevention of Corruption Act, 1988[↩]
- Section 8, Prevention of Corruption Act, 1988[↩]
- Section 9, Prevention of Corruption Act, 1988[↩]
