Thursday, July 26, 2018

Amendments to the Prevention of Corruption Act: Punishing Bribe Givers

In what might just be the biggest statutory shake-up since the Prevention of Corruption Act, 1988 [PC Act] came on the statute books, the Prevention of Corruption (Amendment) Bill 2018 was passed by the Rajya Sabha on July 19, and the Lok Sabha on July 24. That means it will become law unless the extremely  rare event of a President withholding assent occurs. News reports have posted bulletins, and some are ready with explainers as well, but there is naturally a lot that is left out by the media. In this multiple-part series, I take stock of what is likely to become the new regime for the regulation and prosecution of corruption offences in India. In this post, I take up the new Section 8 that punishes private persons for giving bribes.  

Punishing Bribe Givers: The Text
Many people subscribed to popular news outlets would have seen messages carrying the update about the amendments with punishment of bribe givers being the headline. There is good reason for this excitement: the existing mechanism under the PC Act did not create an offence of "bribe giving", and such conduct could only be indirectly punished. This was done through Section 12 of the PC Act, by alleging the private person aided or abetted the misconduct by the public servant. The only other kind of bribe giving punishable was under Section 8 which targeted the middleman acting as the conduit between the private person seeking the benefit, and the public servant amenable to corruption.

Not anymore. The recent amendments to the PC Act change Section 8, which will look like this:
Section 8
(1) Any person who gives or promises to give an undue advantage to another person or persons with intention - 
(i) to induce a public servant to perform improperly a public duty; or 
(ii) to reward such public servant for the improper performance of public duty; 
shall be punishable for a term which may extend to seven years ...
Provided that ... this section shall not apply where a person is compelled to give such undue advantage ... [and] shall report the matter to [law enforcement] within seven days from the date of giving such undue advantage. 
(2) Nothing in sub-section (1) shall apply to a person, if that person, after informing a law enforcement authority or investigating agency, gives or promises to give any undue advantage to another person ... to assist [law enforcement] in its investigation against the latter.
Section 8 also has an Explanation that says: (i) it doesn't matter if the bribe is given / promised to the person who is to perform / has performed the corrupt acts, and (ii) it doesn't matter if X gives / promises the bribes directly or through a third party. 

Understanding the Bribe Giving Offence
Let's break Section 8 up to see the conduct it seeks to prohibit, and the mental state it requires to be linked to that conduct for it to be labelled criminal. Section 8 punishes giving / promising to give an "undue advantage" to induce / reward a public servant to "perform improperly a public duty". Putting it crudely, Section 8 covers the giving / promising of bribes as inducement / rewards for corrupt acts by public servants. The giving / promising need not be done directly, as explained by the provision. It must be made to another person, and while this can certainly be the targeted public servant, it can be any other person as well.    

This conduct must be performed intentionally for it to be punished under Section 8. It means nothing short of the clearest case ought to go through, since intention is the highest standard for mental state in criminal law. One imagines the prosecution will need to show (i) a clear offer / promise / giving of a bribe, (ii) a link between X (private person) and Z (corrupt public servant), and (iii) some evidence of the particular corrupt act that X wants from Z / Z has committed. This is what the Illustration to Section 8 also suggests (not reproduced above): it says P (private person) is guilty of the offence where she gives S (public servant) a sum of Rs.10,000 to ensure P is granted a license over all other bidders. Note, though, that the text itself does not require that S must get whatever is given by P to "another person" for getting S to ensure the license is approved.

As important as the offence itself is the Proviso to Section 8(1) that carves out an important exception to protect persons who are "compelled" to give bribes. This is an acknowledgment of existing social realities where public servants exploit their position to demand undue favours for performing their duties. To trigger the benefit of the Proviso, the victim must go and file a report with the concerned authorities within a week. Another important exception to Section 8 is codified in the second Proviso, which protects the long-standing use of "entrapment" (called trap cases in the field) as a technique to nab corrupt public servants. So, persons who conduct a sting operation to assist investigations cannot be prosecuted either.   

Potential Problems
Few would argue that bribe giving should not be punished. But, it is worthwhile to ask ourselves how will the police catch bribe givers? Bribery is a covert transaction: I am not going to tell everyone that I bribed a public servant, which means either (a) the public servant goes to the police, or (b) other aggrieved persons go file complaints. Let's take both scenarios. If the idea is for public servants to report bribes, they also need protection from prosecution. But while there is an exception to protect a cooperating bribe giver, there is no exception for cooperating bribe takers in the new law.

Perhaps the legislature thought - as many others might - that public servants are going to be an unlikely source of information and there is no need for an outright exception. The most likely source of initiating legal action is then the persons who suffer from corruption. Go back to the illustration, when P is awarded a license by S who was bribed. Many other bidders will be aggrieved on losing out, and it could be assumed that someone asks the police to investigate. There is an obvious problem but: in what is labelled a corrupt system, some aggrieved bidders will always smell foul play when they lose out, possibly giving rise to as many false cases as genuine ones. It is then incumbent on police to make sure that false cases are not carried through - not the kind of reassurance one wants in India where police distrust runs high.       

The problems continue when we consider the benevolent protection for oppressed bribe givers. Let's begin with the seven day reporting limit: What if police arrests a person for giving bribes before she files a complaint? Will it mean that no arrests for Section 8(1) offences can happen within seven days to avoid this scenario? Or will it mean, perhaps, that police will now find it easy to compel persons to cooperate in making cases against public servants by turning bribe givers into cooperators? Then there is the reporting itself. While the proviso calls for reporting the incident, it says nothing about what happens thereafter. How will police decide whom to believe in a potential swearing match between two purported victims - the allegedly oppressed bribe giver or the vexatiously prosecuted public servant? Will the alleged victims be required to make a statement on oath before a Magistrate, or file an affidavit?

And, finally, how to interpret "compelled", to identify when a person was compelled to pay bribes? There is no explanation in the proposed amendments, which means we must look elsewhere. The most famous interpretation of compulsion in India came from the Supreme Court in context of Article 20(3) of the Constitution, which says that "no person accused of an offence shall be compelled to be a witness against himself". There, in Kathi Kalu Oghad [1962 SCR (3) 10] a bench of Eleven Justices held compulsion meant physical duress: i.e., you needed objective physical acts to prove that you were forced to testify against your will. I imagine that this will not be the standard applied in context of the PC Act. But how broad a meaning of "compelled" will be appropriate, and what consequences might it have on the earlier interpretation arrived at in the context of Article 20(3) itself?

Conclusion and Next Post
The amended Section 8 of the PC Act creates a new offence that potentially opens a veritable flood of prosecutions in a country seemingly plagued by corruption.  The offence itself has been designed in a way to make prosecutions tougher though, as it requires proof that a person gave / promised an undue advantage intending it to be an inducement / reward for corrupt acts. The offence also carries a much-needed exception to protect against the unfair prosecution of persons who are victims of corruption. All of this will translate into several issues when the law comes into force, some of which I identified and discussed above. The few questions I raised confirm the beliefs that the new Section 8 is bound to be the site of significant litigation in the months and years to come. Another reason for that is the last proviso to Section 8(1), that was not reproduced in this post. This is not in the nature of an exception, but provides that commercial bodies can also be prosecuted for giving bribes, and will be the subject of the next post which will also take us to the amended Section 9.

(this post was updated on July 26, 2018, at 9:20 AM)

No comments:

Post a Comment