An Analysis of the Anti-Corruption laws in India
The Author is Sanjivan Chakraborty, a B.A.LL.B (Hons.) student at National Law University and Judicial Academy, Assam.
Corruption laws in India:
The Government employees or Public Servants in India, for acts of corruption, can be penalized under the Indian Penal Code, 1860 (IPC) and the Prevention of Corruption Act, 1988.
There are other statues which are covering specific acts such as the Benami Transactions (Prohibition) Act, 1988, which prohibits benami transactions. Public service officers who are engaged in offenses such as money laundering are penalized under the Prevention of Money Laundering Act, 2002.
In addition to these, India is also a signatory to the United Nations Convention against Corruption since 2005. The Convention is still not ratified, though. The Convention covers within its ambits a wide range of Acts that can be constituted as corruption and provides certain preventive policies.
Some of the key features of Anti-Corruption Acts in India:
The Indian Penal Code, 1860:
Under the IPC, the term “Public Servant” is defined as a government employee, officers in the military, navy or air force, police, judge, officers of the Court of Justice, and any local authority established by a Central Government or State Government Act.
As per Section 169 of IPC, any public servant who unlawfully buys or bids for a property shall be punished with imprisonment of up to two years or with fine or with both. The property so purchased shall be confiscated.
Section 409 of the IPC states that if there is a breach of trust by a public servant, he shall be punished with life imprisonment or with imprisonment of up to 10 years and fine.
The Prevention of Corruption Act, 1988:
The definition of the term “public servant” as per the Prevention of Corruption Act, 1988, includes, in addition to the categories included in the IPC, office bearers of cooperative societies who receive financial aids from the Government, employees of Universities, Public Service Commission and Banks.
The Act provides for punishment of a minimum of 6 months and a maximum of 5 years plus fine if a public servant is found to have taken gratification other than his legal remuneration in respect of any official act or to influence the public servants.
The Act also provides for punishments if a public servant takes gratification to influence the public by illegal means and exercise his personal influence with a public servant.
Furthermore, The Act also provides for punishment of a minimum of 6 months and a maximum of 5 years plus fine, if a public servant is found to accept valuable things without paying for it or pay inadequately, from a person with whom he is engaged in a business in his official capacity.
For any public servant to be prosecuted, it is necessary that prior sanctions have been obtained from either the Central Government or the State Government as the case may be.
The Benami Transactions (Prohibition) Act, 1988:
The Act prohibits all types of benami transactions. Benami transactions are those where the property is purchased in the false name of another person who doesn’t pay for the property except in cases where a person purchases property in his wife’s name or unmarried daughter’s name.
The Act provides for punishment of up to three years and/or fine to any person who enters into a benami transaction.
The Act provides for prescribed authorities who are authorized to acquire all properties that are held to be benami. No money shall be paid in case of such acquisitions.
The Prevention of Money Laundering Act, 2002:
As per the Act, a person is said to have committed the offense of money laundering if he is a party to any process which is connected with the proceeds of crime and projects such proceeds as untainted property.
According to the Act, the term “proceeds of crime” means any property obtained by a person as a result of criminal activity related to certain offenses listed in the schedule of the Act. It is only if a person has been charged with committing a scheduled offense, he can be charged with the offense of money laundering.
The Act provides for rigorous imprisonment of a minimum three years and a maximum of seven years and fine up to rupees 5 lakhs, as penalty for committing the crime of money laundering. It further adds that if the person is convicted of any offense under the Narcotics Drugs and Psychotropic Substances Act, 1985, the term of imprisonment could be increased to up to 10 years.
The Central Government is empowered through the Act for appointing Adjudicating Authority, which shall decide whether any of the property attached or seized is involved in money laundering. An Appellate Tribunal will be there for hearing of appeals against the orders of the Adjudicating Authority.
The Act mandates that every banking company, financial institution and intermediary shall maintain all records of transactions of a specific nature and value, and must also verify and maintain all the records of their customers, and provide the Specified authorities with such information.
Authorities and Procedures to prosecute the Corrupt
The Central Vigilance Commission (CVC), the Central Bureau of Investigation (CBI), and the State Anti-Corruption Bureau (ACB) are the three main authorities who are involved in inquiring, investigating, and prosecuting corruption cases in India.
The Directorate of Enforcement and the Financial Intelligence Unit are authorities who are involved in cases related to money laundering by a public servant. Both the authorities come under the Ministry of Finance.
Cases involving the Central Government or the Union territories fall within the jurisdiction of the CBI, and cases within the states are under the ACB’s jurisdiction. The State may decide to refer the case to the CBI.
The CVC is a statutory body that is involved in supervising corruption cases within the Government departments. The CBI is also under its supervision. The CVC can refer its cases either to the CBI or to the Central Vigilance Officer (CVO) in each department. The CVC and the CVO can only recommend that actions be taken against a public servant, but the decision to take any action against a public servant rests with the department authorities itself.
It is only through prior sanctions from the Central or the State government that an investigating authority can initiate a prosecution. The prosecutors are appointed by the Government for undertaking prosecution proceedings in the Court. All cases under the Prevention of Corruption Act, 1988, are tried before Special Judge, who is appointed by the Central or the State Government.
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