Bribe Culture in India is very common now. As the world is evolving, we see how people are losing their morals too. Things like corruption and bribery have become so common that everyone turns a blind eye to them. Bribery refers to the exchanging of cash, materials, or goods. This exchange is done to get some work done through illegal means or to fasten up the procedure. Although everyone opposes this concept, we all indulge in bribery of some kind.
India has emerged as the country with the highest bribery rate of 39% in the Asian region, according to a survey by global civil society organization Transparency International. India also has the most number of people who use personal connections to get access to public services.
If you set out in the world to find someone who hasn’t ever given or accepted a bribe, you are highly unlikely to succeed. Bribery is around us and is prevalent in all the little and big things.
For instance, if a person wants to admit their kid to a good school, they offer a bribe. If one doesn’t have a ticket for traveling on a train, they bribe the TT to get the ticket. Similarly, on a bigger level, people bribe the police to get rid of their crimes. The police accept the bribe out of greed and sometimes fear.
For regulating the conduct of the public officers and to tackle the issue of public bribery, the following legislations are in place the Lokpal (independent ombudsman) to investigate and prosecute public servants including ministers for corruption, Prevention of Corruption Act, 1988 (PCA), Centre Civil Services (Conduct) Rules 1964, All India Services (Conduct) Rules 1968, Central Vigilance Commissions, 2003, Lokpal and Lokayuktas Act, 2013. In 2018 the PCA, 1988 was further strengthened and amendments were made to the same. The amendment makes “bribery giving” to public officers a specific offense.
Earlier only the act of “receiving or accepting bribery” by public officers was punishable. It vests more obligations upon corporate entities to tighten their compliance processes and to actively prevent its employees from engaging in any acts of corruption or fraud. The powers of the investigative agencies have also been broadened to investigate and prosecute a company along with its director, managers and other officers who participated in the acts of corruption or fraud by way of consent or connivance.
Regulation of Public Bribery
The primary anti-corruption legislation in India is the Prevention of Corruption Act 1988 (PCA), which criminalizes, among other things, the taking and giving of ‘undue advantage’ to ‘public servants. Both individuals and companies are liable to be punished for an offense under the PCA.
The PCA states that undue advantage is any gratification (not limited to being pecuniary in nature or estimable in money) other than the legal remuneration that a public servant is permitted to receive either from the government or any other organization served by the public servant.
Further, the term ‘public servant’ has been defined broadly and includes any person in the service or pay of any government, local authority, statutory corporation, government company, or other body owned or controlled or aided by the government, as well as judges, arbitrators, and employees of institutions receiving state financial assistance.
In CBI v. Ramesh Gelli & Ors, the Supreme Court of India held that pursuant to certain provisions of Indian banking law, employees of banks (whether public or private) are also considered public servants under the PCA.
The offenses under the PCA include:
(1) public servants obtaining any undue advantage with the intention of, or as a reward for, improperly or dishonestly performing or causing performance of a public duty
(2) public servants obtaining any undue advantage without (or for inadequate) consideration from a person concerned in proceedings or business transacted either by the public servant or by any of the public servant’s superiors
(3) criminal misconduct by a public servant (which included possession of disproportionate assets)
(4) commission of any subsequent offence after being convicted previously under the PCA.
The penalties for various offences under the PCA include imprisonment ranging from six months to 10 years and a fine (with one instance where it is imprisonment, a fine or both). Further, recent legislative changes to the PCA have also introduced provisions pertaining to attachment and confiscation of property procured by way of an offence under the PCA. It is not inconceivable for investigating authorities to allege that any advantage received by a bribe-giver through the bribery (which is an offence under the PCA) could also be subject to attachment and confiscation, and not just the property of the public servants in question. The PCA also provides for a time frame of two years within which courts must endeavor to complete the trial, subject to an extension of a maximum of four years.
It is immaterial whether the bribe has been obtained for a public servant’s own benefit or the benefit of any other person, either directly or through any other person. Offences under the PCA are investigated either by the Central Bureau of Investigation (CBI) (in the case of offences involving allegations against functionaries of the central government) or by anti-corruption branches of the state police. Trials of PCA matters are conducted before special courts. Note that the prior sanction of the government is required for the initiation of prosecution of public servants under the PCA. However, this safe harbor applies only to proceedings against serving and retired public servants, and not against persons accused of giving bribes.
The anti-bribery landscape in India has seen rapid changes in the recent past and we expect this trend to continue. Compliance professionals, including defense and prosecution lawyers, will need to keep abreast of a number of legislative, judicial, commercial, and technological developments to stay competitive.