Tuesday, April 12, 2011

Anti-corruption laws already in force

By PRS Legislative Research

As the nation awaits the deliberations of a consultative committee formed to create a new, robust anti-corruption law, here's a ready reckoner to those laws that already exist with the aim of curbing corruption.

Corruption laws in India
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 (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.

Key Features of 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.

The Benami Transactions (Prohibition) Act, 1988
• The Act prohibits any benami transaction (purchase of property in false name of another
person who does not pay for the property) except when a person purchases property in his
wife’s or unmarried daughter’s name.
• Any person who enters into a benami transaction shall be punishable with imprisonment
of upto three years and/or a fine.
• All properties that are held to be benami can be acquired by a prescribed authority and no
money shall be paid for such acquisition.

The Prevention of Money Laundering Act, 2002
• The Act states that an offence of money laundering has been committed if a person is a
party to any process connected with the proceeds of crime and projects such proceeds as
untainted property. “Proceeds of crime” means any property obtained by a person as a
result of criminal activity related to certain offences listed in the schedule to the Act. A
person can be charged with the offence of money laundering only if he has been charged
with committing a scheduled offence.
• The penalty for committing the offence of money laundering is rigorous imprisonment
for three to seven years and a fine of upto Rs 5 lakh. If a person is convicted of an
offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 the term of
imprisonment can extend upto 10 years.
• The Adjudicating Authority, appointed by the central government, shall decide whether
any of the property attached or seized is involved in money laundering. An Appellate
Tribunal shall hear appeals against the orders of the Adjudicating Authority and any other
authority under the Act.
• Every banking company, financial institution and intermediary shall maintain a record of
all transactions of a specified nature and value, and verify and maintain records of all its
customers, and furnish such information to the specified authorities.

Process followed to investigate and prosecute corrupt public servants

• The three main authorities involved in inquiring, investigating and prosecuting corruption
cases are the Central Vigilance Commission (CVC), the Central Bureau of Investigation
(CBI) and the state Anti-Corruption Bureau (ACB). Cases related to money laundering
by public servants are investigated and prosecuted by the Directorate of Enforcement and
the Financial Intelligence Unit, which are under the Ministry of Finance.
• The CBI and state ACBs investigate cases related to corruption under the Prevention of
Corruption Act, 1988 and the Indian Penal Code, 1860. The CBI’s jurisdiction is the
central government and Union Territories while the state ACBs investigates cases within
the states. States can refer cases to the CBI.
• The CVC is a statutory body that supervises corruption cases in government departments.
The CBI is under its supervision. The CVC can refer cases either to the Central
Vigilance Officer (CVO) in each department or to the CBI. The CVC or the CVO
recommends the action to be taken against a public servant but the decision to take any
disciplinary action against a civil servant rests on the department authority.
• Prosecution can be initiated by an investigating agency only after it has the prior sanction
of the central or state government. Government appointed prosecutors undertake the
prosecution proceeding in the courts.
• All cases under the Prevention of Corruption Act, 1988 are tried by Special Judges who
are appointed by the central or state government.

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