Prevention of Corruption Act

Observing that courts should not show leniency towards corrupt public servants, the Supreme Court ruled that direct evidence of demand and acceptance of bribe is not necessary to prove guilt under the Prevention of Corruption Act and a person can be convicted on the basis of circumstantial evidence.

Background –

• In 2019, a reference was made by a Division Bench to a larger Bench upon observing that insistence of direct proof or primary evidence for proving the demand may not be in consonance with the view taken many judgements.
  • There were instances wherein despite the absence of primary evidence of the complainant, the Supreme Court had sustained the conviction of the accused by relying on other evidence.
• The 5-judge Bench of the Supreme Court had reserved the judgement on November 23.
• In an important ruling, the Supreme Court held that direct evidence of demand or acceptance of bribe is not necessary to convict a public servant under the Act and that such fact can be proved through circumstantial evidence.
• Referring the earlier verdicts of the Supreme Court, the bench said corruption among public servants has become a gigantic problem and no facet of public activity has been left unaffected by it.

Supreme Court’s Judgement –

• Even if the direct evidence of the complainant is not available, owing to death or other reasons, there can be conviction of the public servant under the PCA, if the demand for illegal gratification is proved through circumstantial evidence.
• The Bench held that a court can convict a corrupt official for demanding and accepting bribe even in a case in which witnesses, including the complainant, turn hostile and backtrack from their earlier statements that bribe was demanded.
• The Bench said the court can rely on statement of other witnesses to prove guilt.

About Prevention of Corruption Act, 1988 –

• The Prevention of Corruption Act, 1988 (henceforth referred to as PCA) came into force on 9th September, 1988.
• It was aimed at making anti-corruption laws more effective by widening their coverage and by strengthening the provisions to make the overall statute more effective.

Salient Features of the Act –

• It incorporates the Prevention of Corruption Act, 1947, the Criminal Law Amendment Act, 1952, and Section 161 to 165-A of the Indian Penal Code with certain tweaks in the original provisions.
• It has enlarged the scope of the definition such as Public Duty and Public Servant.
• It has shifted the burden of proof from the prosecution as mentioned in the CrPC to the accused who is charged with the offence.
• The provisions of the Act clearly state that the investigation is to be made by an officer, not below the rank of Deputy Superintendent of Police.
• The Act covers corrupt acts as bribe, misappropriation, obtaining a pecuniary advantage, possessing assets disproportionate to income and the like.

Prevention of Corruption (Amendment) Act, 2018 –

• As the PCA saw limited success, an amendment was enacted and brought into force on 26 July 2018.
• The Amendment Act attempted to bring the PCA in line with United Nations Convention against Corruption 2005, which was ratified by India in 2011.
• Highlights of the Amendment Act –
  • Definition of ‘Undue Advantage’ –
    • The Amendment Act has defined ‘undue advantage’ to mean any gratification other than legal remuneration that a public servant is permitted to receive.
  • Persons liable for offering a bribe to public servants –
    • Previously, the PCA did not contain a separate provision for a person who gives or promises to give an undue advantage.
    • However, the Amendment Act makes giving an undue advantage by a person to a public servant, a specific punishable offence.
  • Offering of bribes by commercial organisations –
    • It provides that if a commercial organisation commits any of the offences listed out in the PCA with the intention to obtain or retain business or obtain or retain an advantage in the conduct of its business, then such commercial organisation shall be punishable.
  • Prior sanction for investigation and prosecution –
    • The PCA required prior sanction of the appropriate government for prosecution of serving public officials.
    • The Amendment Act extends this protection of requirement of prior approval to investigation prior to prosecution.
  • Attachment of Property –
    • The Amendment Act has provided for application of the Prevention of Money Laundering Act 2002 and Criminal Law Amendment Ordinance 1944 for attachment and administration of property procured by means of an offence under the PCA.
  • Enhancement of Punishment –
    • Punishment has been increased from a minimum imprisonment term of 6 (six) months to 3 (three) years, and from a maximum of 5 (five) years to 7 (seven) years.