Sansad TV: 75 Years: Laws that Shaped India- The

Prevention of Corruption Act, 1988

Insights Editor October 26, 2022

Introduction:

The Prevention of Corruption Act, 1988 was passed to make the anti-corruption laws
more efficacious by widening their coverage and strengthening the then-existing
provisions. Public servants in India can be penalized for corruption under the Indian
Penal Code, 1860 and the Prevention of Corruption Act, 1988. The Benami Transactions

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(Prohibition) Act, 1988 prohibits benami transactions. The Prevention of Money
Laundering Act, 2002 penalises public servants for the offence of money laundering. India
is also a signatory (not ratified) to the UN Convention against Corruption since 2005. The
Convention covers a wide range of acts of corruption and also proposes certain
preventive policies.

The Acts related to corruption

Indian Penal Code, 1860:

The IPC defines “public servant” as a government employee, officers in the military,
navy or air force; police, judges, officers of Court of Justice, and any local authority
established by a central or state Act.
Section 169 pertains to a public servant unlawfully buying or bidding for property.
The public servant shall be punished with imprisonment of upto two years or with
fine or both. If the property is purchased, it shall be confiscated.
Section 409 pertains to criminal breach of trust by a public servant. The public
servant shall be punished with life imprisonment or with imprisonment of upto 10
years and a fine.

The Prevention of Corruption Act, 1988

In addition to the categories included in the IPC, the definition of “public servant”
includes office bearers of cooperative societies receiving financial aid from the
government, employees of universities, Public Service Commission and banks.
If a public servant takes gratification other than his legal remuneration in respect of
an official act or to influence public servants is liable to minimum punishment of six
months and maximum punishment of five years and fine.
The Act also penalizes a public servant for taking gratification to influence the public
by illegal means and for exercising his personal influence with a public servant.
If a public servant accepts a valuable thing without paying for it or paying
inadequately from a person with whom he is involved in a business transaction in
his official capacity, he shall be penalized with minimum punishment of six months
and maximum punishment of five years and fine.
It is necessary to obtain prior sanction from the central or state government in order
to prosecute a public servant.

Shortcomings and criticism

Narrow definition: The older law had a broad definition of a corrupt public
official, defining it simply as any person who, while holding office as a public
servant, obtains for any person any valuable thing or pecuniary advantage without
any public interest.
The amendments narrow this definition significantly, by adding the test of
intention, meaning prosecuting agencies will have to prove a conspiracy to
carry out corrupt acts, rather than simply pointing to disproportionate assets or
questionable actions.

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 The amendments seek to define criminal misconduct more narrowly,by including
just two clauses.
If the public servant dishonestly or fraudulently misappropriates or otherwise
converts for his own use any property entrusted to him or any property under
his control as a public servant or allows any other person so to do or if he
intentionally enriches himself illicitly during the period of his office.
This means that if a public servant cannot account for assets or property
disproportionate to their known sources of income, then they are presumed to
have intentionally enriched themselves illicitly.
The changed clauses however, do not account for assets that have been
illicitly procured for other people.
The amendment Bill has not mentioned who the concerned authorityis for providing
sanctions for investigating a public official.
Some existing important provisions in the old law are being dropped. These new
terms will take decades for getting their interpretations from the Supreme Court.
Sections 7, 8, 9 and 10 of the existing Act have been deleted and replaced by
completely new provisions, with completely new definitions and words. It may
now take decades before the new provisions are properly interpreted and
settled by judiciary.
The provision under Section 13(1)(d) has been deleted. This is the provision which
is used for involving senior bureaucrats and ministers in corruption cases, since
direct acceptance of bribe by them was generally not possible.
Further, the maximum punishment for this would now be only 7 years
imprisonment as against the existing punishment for 10 years.
Prior permission of the Government or the competent authority will now be required
for registering certain corruption offences. Previously, the provision for taking such
permission was quashed and set aside by the Supreme Court in 2014 in a writ
petition.
This permission will give immunity to corrupt Government officers.
Even sanction for prosecution of corrupt public servantswould now be
needed even after their retirement, giving them one more level of immunity or
protection.

Conclusion

There should be a comprehensive package to fight against corruption. The government

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