CRITICAL CRIMINAL LAW RESEARCH TOPIC

NEED FOR REFORMS IN ANTI CORRUPTION LAW

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India has a complex network of laws and government rules dealing to corruption and corrupt
behaviour. The IPC made a number of actions unlawful, including receiving bribes, using
illegal and corrupt methods to influence public officials, and accepting presents that included
valuables. The POCA removed all of these laws, which ranged from Section 161 of the IPC
to Section 165A of the IPC.1 The Criminal Law (Amendment) Ordinance, 1944 was created
during the Second World War to stop the disposition or concealment of property obtained as
a result of certain specified offences. Following independence, the 1947 Prevention of
Corruption Act was put into effect. In order to assemble the legislation pertaining to offences
committed by public employees, POCA was enacted in 1988. 2 But only bribe-taking was
prosecuted and made illegal under POCA; bribe-giving was not. Various actions taken by
public employees and middlemen looking to influence the public were made illegal under
Sections 7, 8, 9, 10 and 11. Unlike corruption laws in other nations, POCA only penalised
public employees who took bribes. Although the Act only applies to public employees, courts
have given the term "public servant" a broad construction.3

On the other hand, lobbying is an activity that affects decision-making without giving state
officials any immediate benefits. The giving of direct benefits to officials in exchange for
their changing course of action is corruption. There are variations and parallels between
lobbying and corruption that we are unable to discern, but these two practises are the only
other ways for private channels to influence how the government makes policy, aside from
voting. People compare it to lobbying since it involves financial resources influencing
politicians and aiding them in their campaigns, but this presumption suggests that the only
thing that can influence is money. The contrasts are that some of the countries claim that
lobbying is legal while others claim that corruption is illegal. However, because different
legal systems have diverse views on what is legal, we are unable to substantiate this
distinction. For instance, giving lawmakers with specific skills to conduct research on a
certain law may constitute lobbying, whereas paying a specific sum to influence a law for
personal advantage may constitute corruption. When we look at the processes' ends, it can be
perplexing to see how differently the processes' means can differ from one another. Another

1
Indian Penal Code, I860.
2
Prevention of Corruption Act, 1988.
3
CBI, Bank Securities & Fraud Cell v. Ramesh Gelli & Ors., 2016
distinction is the target of rent-seeking activities, with lobbying directed at lawmakers, who
set the rules, and corruption directed at those who administer the rules.

A payment is legitimate or invalid i.e, other Indian laws and regulations receive the same
consideration. The POCA does not provide a deadline for finishing corruption-related
proceedings. This was considered a significant legal flaw. POCA does not allow for
compounding of offences either, but judges have been using their discretion when imposing
sentences based on the unique circumstances of each case. The paper will critically analysis
and compare Anti Corruption laws of India.

Anti Corruption laws- An overview

“A "public duty" is one that the State, the public, or the community at large has an interest
in. 4 ." Additionally, The term "state" is broadly construed. The phrase "public duty" is
significant because it enables people to be classified as public servants under POCA even if
they perform public duties without being compensated by the government. The POCA
defines the word "public servant" in a very broad sense. The expression is not restricted to the
circumstances outlined in the definition clause since courts have also adopted an
interpretation that allows additional people to be included within its reach. In P.V. Narasimha
Rao v. State 5 , The terms "public servant" and "public obligation" were looked at. The
Supreme Court's ruling made it clear that, notwithstanding the fact that the case concerned a
Member of Parliament, the terms "public duty" and "public servant" would be given a broad
construction. In the Ram Gelli case, the Supreme Court utilised these guidelines and came to
the judgement that bank managers would be public officials for the purposes of the POCA. 6
Despite the fact that the individuals in question were not employed by the State or any of its
instrumentalities. This was due to the public duty component and the nature of the work
performed by bank managers.

According to the guidelines outlined in the Code of Criminal Procedure, 1973 (the "Criminal
Code"), investigations into offences under POCA are conducted. There is no settlement or
compounding procedure in POCA. The Criminal Code specifies the situations under which
compounding is permitted. However, the Supreme Court has held that it would be admissible
for the parties to settle a dispute in particular circumstances where there is no moral turpitude

4
Section 2(b), POCA, 1988.
5
P.V. Narasimha Rao v. State 4 SCC 626 (1998).
6
Supra at 3.
and it is primarily commercial in character. This is true even if Section 320 of the Criminal
Code does not include offences under the POCA. The terms and circumstances for civil
officials employed by the central government are governed by the All India Services Act,
1951 (the "Services Act"). The All India Services Act gives the Central Government the
authority to establish regulations governing the terms of employment for All India Services
employees.7 In accordance with the All India Services (Conduct) Rules, 1968 (the "Services
Rules"), service members are allowed to engage in activities outside of their employment
with the Central Government and to accept gifts. A member of the Service is required under
the Services Rules to uphold moral principles and legal obligations with regard to his
employment. Government servants, defined as anyone appointed by the government to "any
civil service or post in connection with the operations of the Union, including a civilian in a
Defence Service," are subject to the Central Civil Services (Conduct) Rules of 1964 (the
"Central Services Rules"). Because of this, the Central Services Rules have a wider scope of
application but essentially use the same definitions as the Services Rules. 8 The Central
Services Rules set the same standards for general integrity and gifts, however the dollar
amounts are varied for government employees at different grades.”

Recent reform to Combat Anti Corruption laws

Prevention of Corruption (Amendment) Bill 2013

Following India's ratification of the UNCAC, the Indian government took action to update
POCA to conform to global norms. These specifically included prosecuting private
individuals for crimes as well, setting deadlines for trials, seizing contaminated property, and
bringing charges for bribery.

The Amendment Bill was presented to Parliament in 2013. The Standing Committee was
given the Amendment Bill. In February 2014, the Standing Committee turned in its report.
The Amendment Bill was then forwarded to the Law Commission of India (hereafter, "LCI")
based on the Standing Committee's recommendations. In February 2015, LCI submitted its
findings, titled "Law Commission Report No. 254, February 2015" (the "Law Commission
Report"). 9 Additional revisions to the Amendment Bill were then distributed throughout
Parliament in November 2015. The Amendment Bill should be changed significantly,

7
Section 2A, Services Act.
8
Rule 3 (2), Services Rules.
9
Law Commission of India Report No. 254, February 2015.
according to LCI, who also suggested eliminating some modifications. The Amendment Bill
included measures to make offering bribes illegal and to prosecute businesses for violating
POCA in addition to trying to adopt some parts of the UK Bribery Act, 2010 (the "UK Act").
The Amendment Bill inserts new clauses in place of Sections 7, 8, and 9. LCI has, however,
also suggested a number of modifications to the suggested new parts.

LCI has suggested that the phrase "undue financial or other benefit" be eliminated from the
Amendment Bill and replaced with the phrase "undue advantage." This is owing to the fact
that the phrase "undue financial or other advantage" might be ambiguous because there are no
rules defining what constitutes a legitimate financial or other benefit. LCI has further argued
that sexual gratifications might not be regarded as an "other advantage" and that it is crucial
to provide a more inclusive but precise definition of illicit gratifications gained in accordance
with POCA.10 The proposed Section 7 deals with crimes committed by public employees and
allows for earning benefits in connection with "relevant governmental functions." This
concept has drawn criticism from LCI since, in the context of a public servant, all tasks
would essentially be public tasks, making the phrase "relevant public function" unnecessary.
LCI has suggested a clearer and shorter clause. The Amendment Bill's provision could lead to
confusion in terms of how it is applied and interpreted. It is reasonable for LCI to criticise the
Amendment Bill for almost adopting UK Act elements without adjusting them for POCA,
and it is hoped that Parliament will take LCI's proposals into account.

The phrase "improperly" is used in the proposed Section 8 in reference to carrying out a
public responsibility. According to the Law Commission Report, this does not take into
consideration situations in which a public servant is offered illicit gratifications in exchange
for carrying out their routing duties "correctly." Additionally, LCI has advised that while it is
acceptable to pay illicit gratification in exchange for carrying out ordinary tasks, the bribe
giver will only be granted immunity if the law enforcement authorities are informed in
advance.

Any public employee, any individual, or an NGO may file a complaint. The Whistleblowers
Act mandates that the Competent Authority be informed of the complainant's name and states
that if such information turns out to be incorrect, no action would be done. However, the
Competent Authority must keep the complainant's identity a secret unless it is absolutely
required to disclose it to a Head of Department while conducting an investigation. Even in

10
Ibid.
these circumstances, the complainant must provide written approval and the Head of
Department must be instructed not to reveal the complainant's identify.

Central Vigilance Commission, 2003

In 2003, the Central Vigilance Commission Bill was presented to and approved by
Parliament. The Central Vigilance Commission Act of 2003 purposes and justifications states
that it is a behaviour that enquires or causes enquires to be made investigation of offences
allegedly committed under POCA by specific types of government employees of the Central
Government, businesses created under any Central Act, government-run businesses, and
Societies or local government entities that control Government control over. Paragraph 3(2)
of the According to the CVC Act, the CVC is made up of three members: Two Vigilance
Commissioners serve as Members, together with a Central Vigilance Commissioner who
serves as the Chairperson. At the end of 2014, there were 13,659 complaints pending with the
Central Vigilance Officers for investigation, 6,499 of which had been open for longer than six
months.11

Other legislation for instance, Corporate governance and fraud prevention are highly
prioritised in the Companies Act of 2013. In order to combat individual corruption, laws such
as Black Money (Unreported Foreign Money and Assets), Imposition of Tax Act, and
Fugitive Economic Offenders Act have been utilised to pursue tax evaders and those with
hidden income. Corporate governance and fraud prevention are highly prioritised in the
Companies Act of 2013. Moreover, Black Money (Unreported Foreign Money and Assets),
Imposition of Tax Act, and Fugitive Economic Offenders Act have been used to pursue tax
evaders and people with undisclosed income in order to combat corruption among
individuals.

Relation between lobbying and Corruption laws

There are two things that can help you comprehend the corruption in lobbying law: The fee
paid to a tax inspector by one average citizen is less expensive than the sum that a politician
would have to spend to change the tax code. Another factor is that business organisations will
use lobbying due to its success despite the cost. To understand political corruption, we must
look at the connections between lobbying, corruption, and political institutions. The
distinction between lobbying and corruption is ultimately impacted by the benefits and

11
Central Vigilance Report, 2015
drawbacks of democracy. As a result of businesses and organisations' direct and sensitive
relationships with political institutions, lobbying is more prevalent than corruption, which
reduces the accountability of the bureaucracy. 12 However, this relationship only becomes
clear when we see these two ideas in the context of national standards; otherwise, it becomes
less clear because the media frequently reports on incidents of corruption involving specific
people or police.

The nation's political system's stability has an impact on the activities as well. Low levels of
party affiliation among voters are associated with higher levels of political corruption. 13
When using legislative systems in this situation, lobbying can be beneficial in making
policymakers understand the associated costs and advantages. The impacts of the
parliamentary system's internal organisation have also increased activity of lobbying. The
amount of decentralisation in the government is another factor. Thus, decentralized systems
make lobbying more challenging.

Reforms to tackle Corruption in aid to Anti Corruption law

A wide range of measures for combating corruption have been carefully explored, including
information sharing and bottom-up monitoring, technological solutions, financial incentives,
and changes to laws and policies.

First, while providing knowledge is a valuable tool in the toolbox, it is not necessarily a
successful anti-graft tactic. According to studies conducted in India, increasing the level of
transparency about how the government is performing yields the best results when it is
coupled with changes that strengthen the state's capacity to punish impunity, increase the
bargaining power of common citizens, and improve coordination and group action. For
instance, there is strong evidence that the mechanisms underlying this linkage have more to
do with societal differences ingrained in India's society of lax rule of law than information
asymmetries when it comes to the persistence of illegal or corrupt actors in electoral politics.

Second, while technical methods of combating corruption are enticing, they come with their
own set of difficulties. Higher levels of government are nevertheless required by
technological advancements to monitor behaviour and impose sanctions for wrongdoing,
which they may be reluctant to do for political economic reasons. The logistical aspects of

12
Campos N. and F. Giovannoni, “Lobbying, Corruption and Political lnfluence”, Public Choice (2007).
13
Handlin A., Dirty Deals? An Encyclopedia of Lobbying, Political lnfluence, and Corruption (2014).
last-mile delivery can also seriously reduce effectiveness. Technology-based solutions
function best when they decentralise enforcement, avoid middleman officials, and empower
regular folks. They also perform best when they have concerted institutional support.

Third, political reform is possibly the simplest element of anti-corruption strategy. Although
the Election Commission has been successful in minimising the most obvious electoral fraud,
it has found it difficult to control the flow of dark money into politics. It is simple to start by
amending the organization's legal provisions so that it can demand complete transparency for
political contributions and penalise potential offenders. Additionally, legislation that is still in
the works, like the Right to Services and Public Procurement Acts, can limit the misuse of
governmental authority and tip the balance of power in favour of regular people. These bills
are encouraging, but they need more careful consideration regarding their ability to be
implemented. For instance, a new right to services bill adds a new avenue for resolving
complaints to a system already overburdened with legal demands by guaranteeing
individuals' access to a specific list of services within a set amount of time.

Fourth, reformers and lawmakers should remember that progress is only possible if efforts to
establish new laws are supported by an equal effort to repeal out-of-date laws as they are
discussed as new ideas to combat corruption. Focusing on the development of new anti-
corruption systems is both logical and politically advantageous for legislators, but it would be
foolish to ignore the less glamorous work of streamlining India's legal system. For instance,
the area of labour regulation is heavily burdened with onerous and superfluous rules that
serve more to arm corrupt government officials with extortion weapons than to uphold
worker rights. An easier, more logical legal system would lessen the incentives for
corruption.

Finally, while avoiding weak institutions may be required to combat corruption today, doing
so is not long-term sustainable or even desirable. While the local state has frequently preyed
on the common man instead of speaking up for him, anti-corruption campaigns can only go
so far without including an empowering the state. For instance, coalitions are effective and
outperform tool than individual resistance and Legal action is less effective than social
punishments and financial incentives.

Conclusion
As may be seen from international laws and practises, Indian law against corruption is still
being created and does not fully address all corruption-related issues. Businesses and their
stakeholders are now expected to take proactive action and take the necessary steps to ensure
that a firm, its officials, and its employees uphold the highest standards of integrity. Laws in
India lack analogous protections for government contracts or measures like damages when a
party suffers because a contract was tainted by corrupt behaviour, unlike laws in established
international countries. While the Amendment Bill is up for consideration in Parliament, it
does put the onus of responsible action on businesses.

Therefore, it would be wise for businesses and other stakeholders to create governance
standards that adhere to international norms in order to solve problems with corruption and
unethical behaviour. As a result, even though India offers unrivalled commercial potential,
certain risks must be effectively managed to reduce or completely rule out the possibility of
facing legal action or becoming the subject of an inquiry for engaging in corrupt acts.
Moreover, the difference between lobbying and corruption is predicated on the location of the
need for influence. These two ideas have been used as proxy terms to recognise and analyse
the relationship between political institutions on the one hand, and the outcomes of lobbying
and corruption on the other. Lobbying regulations may or may not protect public policy from
the effects of vested interests brought on by corporate advantages. However, my goal is to
create information symmetry so that there is no evasion from public scrutiny. It is suggested
that there should be a law for lobbying because there is a possibility for abuse. Although the
existing structure ensures openness and accountability to ensure that corruption is monitored,
we need a system with more stakeholders and a wider participation to finally force the policy
makers to genuinely take the interests of the general public into consideration and stop being
passive players.