The Prevention of Corruption Act 1988

The vocabulary changed in 2018. The Act now speaks of an undue advantage rather than of gratification, and the offence of giving a bribe was made a distinct offence under section 8, so that the bribe giver is squarely within the Act, which the older scheme addressed principally through abetment.

Section 13 was narrowed. Criminal misconduct is now confined to misappropriation of entrusted property and to intentional illicit enrichment. The older section 13 contained wider limbs, including obtaining a valuable thing by corrupt or illegal means, obtaining a pecuniary advantage without any public interest, and the much litigated limb about a public servant obtaining a pecuniary advantage by abusing his position. Their removal is the most significant substantive change of 2018 and it is what an examiner is testing when the question asks about the amendment.

Group 3: investigation and sanction, sections 17, 17A, 18, 18A and 19

• Section 17: persons authorised to investigate, being officers of stated rank.
• Section 17A: inserted in 2018. No police officer shall conduct any enquiry or inquiry or investigation into an offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by the public servant in the discharge of his official functions or duties, without the previous approval of the authority competent to remove him. There is an exception for cases involving arrest on the spot on a charge of accepting or attempting to accept an undue advantage.
• Section 18: power to inspect bankers' books.
• Section 18A: application of the provisions of the Criminal Law Amendment Ordinance 1944, which is the machinery for attachment of property.
• Section 19: previous sanction necessary for prosecution. No court shall take cognizance of specified offences alleged to have been committed by a public servant except with the previous sanction of the appropriate authority.

Sections 17A and 19 together are the central controversy of this Act, and any good answer engages with it.

The argument for them is that an honest officer who takes a difficult decision should not face an investigation whenever a decision goes wrong or is unpopular, since the fear of investigation produces the very avoidance of decisions described in [Accountability and Responsiveness: Problems and Perspectives].

The argument against is that requiring the permission of the very government the officer serves before an investigation can even begin gives that government a veto over the investigation of its own administration, and that the practical effect of the sanction requirement has historically been delay and refusal.

Group 4: presumptions, evidence and general provisions, sections 20 to 31

• Section 20: presumption where a public servant accepts an undue advantage. Where it is proved that a public servant accepted or attempted to obtain an undue advantage, it shall be presumed, unless the contrary is proved, that he accepted it as a motive or reward for improper performance. This reverses the burden on the question of motive once acceptance is proved, and it is the provision that makes the Act workable, since motive is otherwise almost impossible to prove.
• Section 21: the accused person is a competent witness.
• Section 22: the Code of Criminal Procedure applies subject to modifications.
• Section 23: particulars in a charge relating to an offence under section 13(1)(a).
• Section 25: military, naval and air force or other law not to be affected.
• Section 26: special judges appointed under the earlier Act of 1952 to be special judges under this Act.
• Section 27: appeal and revision.
• Section 28: the Act is in addition to any other law.
• Section 29: amendment of the Ordinance of 1944. Section 29A: power to make rules. Section 30: repeal and saving.

The 2018 amendment, summarised

The Prevention of Corruption (Amendment) Act 2018 (16 of 2018) came into force on 26 July 2018, by a notification of that date issued by the Ministry of Personnel, Public Grievances and Pensions under section 1(2) of that Act.

Assent is not commencement, and the date above is taken from the commencement notification itself and not from the date of assent: the general point is made in [Sources of Administrative Law].

What it did:

1. Rewrote section 7 in terms of an undue advantage and improper performance of a public duty.
2. Made bribe giving a distinct offence under section 8, with a proviso protecting a person compelled to give a bribe who reports it within seven days.
3. Introduced corporate liability by sections 9 and 10, for commercial organisations and those in charge of them.
4. Narrowed criminal misconduct in section 13 to misappropriation and intentional illicit enrichment.
5. Inserted section 17A, requiring previous approval before an enquiry, inquiry or investigation into a decision or recommendation made in the discharge of official functions.
6. Prescribed time limits for the trial, which section 4 requires to be conducted as expeditiously as possible.

A worked example

A Deputy Commissioner is alleged to have granted a mining lease to a company after receiving twenty lakh rupees, and separately to have taken a decision approving an environmental clearance which is said to have been wrong.

The bribe. Section 7 applies to his obtaining or accepting the undue advantage with the intention to perform his public duty improperly. The company's officer who paid is liable under section 8, and if the company itself is a commercial organisation which gave the bribe, section 9 applies and the person in charge may be guilty under section 10. Once acceptance is proved, section 20 raises the presumption that it was accepted as a motive or reward, and the burden shifts.

Investigation. For the bribe allegation, section 17A's requirement of previous approval is engaged only where the offence is relatable to a recommendation made or decision taken in the discharge of official functions; the exception applies where the public servant is arrested on the spot on a charge of accepting an undue advantage.

The wrong clearance. This is squarely within section 17A: the allegation is relatable to a decision taken in the discharge of official functions, so no enquiry or investigation may be conducted without the previous approval of the authority competent to remove him. If the clearance was merely wrong and not dishonest, that is the situation section 17A was inserted to protect.

Prosecution. Section 19 requires previous sanction before a court takes cognizance.

Trial. Before a special judge appointed under section 3, under section 4, expeditiously.

Property. Attachment under the machinery applied by section 18A, and bankers' books may be inspected under section 18.

What it does NOT mean

It does not mean the old section 13 limbs still apply. They were removed in 2018, and this is the commonest error in a textbook written earlier.

It does not mean the bribe giver is safe. Section 8 makes giving a distinct offence, with a limited protection for a person compelled to give who reports within seven days.

It does not mean section 17A protects a bribe taker caught in the act. The exception covers arrest on the spot on a charge of accepting or attempting to accept an undue advantage.

It does not mean a presumption convicts. Section 20 shifts the burden on motive once acceptance is proved; the accused may prove the contrary.

Quick revision

1. Prevention of Corruption Act 1988, thirty-one sections, substantially rewritten by the Prevention of Corruption (Amendment) Act 2018, which came into force on 26 July 2018.
2. Sections 3 to 6: special judges, cases triable by them, their procedure and powers, and summary trial.
3. Section 7: public servant being bribed, in terms of an undue advantage and improper performance. Section 7A: taking an undue advantage to influence a public servant by corrupt or illegal means or by personal influence.
4. Section 8: bribing a public servant, now a distinct offence. Section 9: bribery by a commercial organisation. Section 10: the person in charge of such an organisation.
5. Section 11: a public servant obtaining a valuable thing without consideration from a person concerned in a proceeding or business transacted by him. Section 12: abetment. Section 13: criminal misconduct, now confined to misappropriation of entrusted property and intentional illicit enrichment. Sections 14 and 15: habitual offender and attempt.
6. Section 17: authorised investigating officers. Section 17A: previous approval required before enquiry, inquiry or investigation into an offence relatable to a recommendation or decision made in the discharge of official functions, with an exception for arrest on the spot. Section 19: previous sanction for prosecution.
7. Section 20: presumption that an undue advantage accepted was accepted as a motive or reward, unless the contrary is proved.
8. The debate on sections 17A and 19: protection of honest decision making against a governmental veto over investigation of its own administration.

Test yourself

1. What offences does the Prevention of Corruption Act 1988 create? As amended in 2018, section 7 makes it an offence for a public servant to obtain, accept or attempt to obtain an undue advantage with the intention to perform or cause the performance of a public duty improperly or dishonestly, or as a reward for having done so. Section 7A penalises taking an undue advantage to influence a public servant by corrupt or illegal means or by the exercise of personal influence. Section 8 makes the giving or promising of an undue advantage a distinct offence, section 9 makes bribery by a commercial organisation an offence, and section 10 makes the person in charge of such an organisation guilty where the offence is committed with his consent or connivance. Section 11 penalises a public servant who obtains a valuable thing without consideration from a person concerned in a proceeding or business transacted by him. Section 12 punishes abetment, section 13 criminal misconduct, section 14 a habitual offender and section 15 an attempt.

2. What did the 2018 amendment change? It came into force on 26 July 2018 and rewrote much of the Act. It recast section 7 in terms of an undue advantage and the improper performance of a public duty, replacing the older language of gratification. It made bribe giving a distinct offence under section 8, with a limited protection for a person compelled to give a bribe who reports it within seven days. It introduced corporate liability through sections 9 and 10. It narrowed criminal misconduct in section 13 to the dishonest or fraudulent misappropriation of entrusted property and intentional illicit enrichment, removing the wider limbs of the former section, which is its most significant substantive change. And it inserted section 17A, requiring previous approval before any enquiry, inquiry or investigation into an offence relatable to a recommendation made or decision taken by a public servant in the discharge of his official functions.

3. Explain sections 17A and 19 and the controversy about them. Section 17A, inserted in 2018, provides that no police officer shall conduct an enquiry, inquiry or investigation into an offence alleged under the Act where the offence is relatable to a recommendation made or a decision taken by the public servant in the discharge of his official functions, without the previous approval of the authority competent to remove him, with an exception for cases involving arrest on the spot on a charge of accepting or attempting to accept an undue advantage. Section 19 provides that no court shall take cognizance of specified offences committed by a public servant except with the previous sanction of the appropriate authority. The argument for them is that an honest officer must be able to take difficult decisions without fear of investigation whenever a decision proves wrong or unpopular, since that fear produces avoidance of decision making. The argument against is that requiring the permission of the very government the officer serves, before an investigation may even begin, hands that government a veto over the investigation of its own administration, and that the sanction requirement has historically produced delay and refusal.

4. What presumption does section 20 raise, and why is it necessary? Section 20 provides that where it is proved that a public servant accepted or attempted to obtain an undue advantage, it shall be presumed, unless the contrary is proved, that he accepted it as a motive or reward for the improper performance of a public duty. It is necessary because the prosecution can usually prove the transfer of money but almost never the state of mind that accompanied it, since bribery is by its nature transacted privately and without documentation. The presumption therefore shifts the burden on motive once acceptance has been proved, while leaving the accused free to prove the contrary, and it is what makes prosecutions under the Act practicable.

5. Why must a student be careful with textbooks written before 2018 on this Act? Because the amendment of 2018 rewrote the offences, and the old section numbers and language survive in every earlier text. The former sections spoke of gratification other than legal remuneration and of criminal misconduct in wide terms, including obtaining a valuable thing or pecuniary advantage by corrupt or illegal means or by abusing one's position. The present Act speaks of an undue advantage and improper performance, makes bribe giving a distinct offence under section 8, introduces corporate liability by sections 9 and 10, and confines criminal misconduct under section 13 to misappropriation of entrusted property and intentional illicit enrichment. It also introduces the requirement of previous approval under section 17A, which did not exist before. An answer reciting the pre-2018 scheme states repealed law.