The Indian Parliament amended the Prevention of Corruption Act (“POCA”) on July 19, 2018. This legislation marks an important step for India towards checking political graft. Below are some highlights of the changes.
Widening the net
Unlike its predecessor, which only prosecuted bribe-givers as abettors, the new legislation goes further by prosecuting bribe-givers as principals. Under the amended act (“Amendment”), paying a bribe is an offence punishable by up to seven years in prison.
Further, taking a cue from US anti-bribery legislations, the Amendment holds liable both natural and legal persons. This allows authorities to pursue corporations as well as individuals paying bribes to Indian government officials.
Among other changes, the Amendment revises the definition of bribe to include “undue advantage,” recognizing that the value transferred to a public official need not be measurable in purely economic terms.
Under the Amendment, India’s Central Bureau of Investigation (India’s leading investigative agency) will oversee cases where a federal government official has received a bribe. Local enforcement agencies are to investigate bribes paid to state government officials.
Guidelines on corporate fines are awaiting publication. It is expected that an inter-ministerial consultation process will formulate such guidelines. This process will likely include the Union Ministry of Home Affairs, Ministry of Personnel, and Ministry of Corporate Affairs.
The Amendment disallows police officers from conducting any inquiries or investigations against a serving or retired public servant who was discharging his official duties, without first obtaining approval from the relevant authority. Such a requirement was previously absent under POCA.
This prerequisite promotes efficiency in government by ring-fencing honest public officials in their discharge of official functions. It also lessens the opportunity for frivolous lawsuits. On the other hand, compelling police officers to seek prior sanction from a competent authority arguably dilutes the power of investigating agencies and potentially impedes investigations.