Anti corruption laws and agencies in India for efficacy of implementation
21 Apr 2021
A) Indian Penal Code (IPC)-Relevant Provisions
1. Dishonest misappropriation of property
Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. (Section 403)
2. Criminal breach of trust
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust". (Sec. 405)
a). Punishment for criminal breach of trust Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. (Section 406)
*Illustrations :(e) A, a revenue-officer, is entrusted with public money and is either directed by law or bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust
3. [Section 408] Criminal breach of trust by clerk or servant
Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. [Section 408]
4. [Section 412]. Dishonestly receiving property stolen in the commission of a dacoity
Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoity, property which he knows or has reason to believe to have been stolen, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
B) The Prevention of Corruption Act,1988
∙ Scheme-31 Sections
∙ Object: to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith.
∙ Applicability: to Public Servants
∙ S.3. Power of State/Central governments to appoint special Judges (not below the rank of an Assistant Session Judge - a special Judge shall, as far as practicable, hold the trial of an offense on a day-to-day basis)
Who is a Public Servant? [Sec.2(C)]
(i) Any person in the service or pay of' the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) Any person in the service or pay of a local authority.
(iii) Any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956.
(iv) Any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions.
(v) Any person authorized by a court of justice to perform any duty, in connection with, including a liquidator, receiver, or commissioner appointed by such court.
Public servant taking gratification (Sec.7)
"Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offense defined in this section.
The word "gratification" is not restricted to pecuniary gratification or to gratifications estimable in money.
(c) Legal remuneration
The words "legal remuneration" are not restricted to remunerations which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the Organisation, which he serves, to accept.
(d) A motive or reward for doing
A person who receives a gratification as motive or reward for doing what he does not intend or is not in a position to do, or has not one, comes within this expression;
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money, or any other gratification as a reward for this service, the public servant has committed an offense under this section.
C) The Prevention of Money Laundering Act, 2002
o Offence of Money-Laundering
" Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of the offense of money laundering."
o Punishment for Money-Laundering
-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine which may extend to five lakh rupees.
D)THE ANDHRA PRADESH LOKAYUKTA AND UPA-LOKAYUKTA ACT, 1983
∙ An Act to make provision for the appointment and functions of Lokayukta and Upa-Lokayukta for the investigation of Administrative action taken by or on behalf of the Government of Andhra Pradesh or certain Local and Public Authorities in the State of Andhra Pradesh (including any omission and commission in connection with or arising out of such action) in certain cases and for matters connected therewith.
∙ Scheme: 22 Sections
E) The Central Vigilance Commission Act 2003
∙ Created to tackle governmental corruption in February 1964 on the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam
∙ Not an investigating agency, and works through either the CBI or through the Departmental Chief Vigilance Officers [except the investigation carried out by the CVC is that of examining Civil Works of the Government which is done through the Chief Technical Officer]
∙ Headed by a Central Vigilance Commissioner who is assisted by two Vigilance Commissioners
∙ Commission’s Jurisdiction under CVC Act - Members of All India Services serving in connection with the affairs of the Union and gazetted officers of the Central Government etc
F) The RTI Act 2005
∙ the preamble of the Right to Information Act highlights – ∙ containing corruption,
∙ improving transparency; and
∙ making servants accountable by empowering citizens to get information.
i. Right to Information Act: The 2005 Right to Information Act required government officials to provide the information requested by citizens or face punitive action, as well as the computerization of services and the establishment of vigilance commissions. This considerably reduced corruption and opened up avenues to redress grievances.
Right to public services legislation: Right to Public Services legislation, which has been enacted in 19 states of India, guarantee time bound delivery of services for various public services rendered by the Government to citizen and provides a mechanism for punishing the errant public servant who is deficient in providing the service stipulated under the statute. Right to Service legislation is meant to reduce corruption among government officials and to increase transparency and public accountability.
Anti-Corruption Movements & Measures in India a. The Benami Transactions (Prohibition) Act, 1988 prohibits Benami transactions.
b. Prevention of Money Laundering Act, 2002
India is also a signatory to the United Nations Convention against Corruption since 2005 (ratified 2011). The Convention covers a wide range of acts of corruption and also proposes certain preventive policies.
1. The Lokpal and Lokayuktas Act, 2013 which came into force on 16 January 2014, seeks to provide for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries in India.
2. Whistle Blowers Protection Act, 2011, which provides a mechanism to investigate alleged corruption and misuse of power by public servants and also protect anyone who exposes alleged wrongdoing in government bodies, projects, and offices, has received the assent of the President of India on 9 May 2014, and (as of 02 August) is pending for notification by the Central Government. The Prevention of Money Laundering Act, 2002 provides that the properties of corrupt public servants shall be confiscated. However, the Government is considering incorporating provisions for confiscation or forfeiture of the property of corrupt public servants in the Prevention of Corruption Act, 1988 to make it more self-contained and comprehensive.
3. TheCompanies Act, 2013, contains certain provisions to regulate frauds by corporations, including, increased penalties for frauds, giving more
powers to Serious Fraud Investigation Office, mandatory responsibility of auditors to reveal frauds, and increased responsibilities of independent directors.
The Companies Act, 2013 also provides for a mandatory vigil mechanism that allows directors and employees to report concerns and whistleblower protection mechanism for every listed company and any other companies which accept deposits from the public or have taken loans more than 50 crore rupees from banks and financial institutions. This intended to avoid accounting scandals such as the Satyam scandal which have plagued India. It replaces The Companies Act, 1956 which was proven outmoded in terms of handling 21st-century problems.
4. In 2015, the Parliament passed the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Bill, 2015 to curb and impose a penalty on black money hoarded abroad. The Act is pending for assent of the President of India.
ANTI-CORRUPTION POLICE AND COURTS
The Directorate General of Income Tax Investigation, Central Vigilance Commission, and Central Bureau of Investigation all deal with anti-corruption initiatives. Certain states such as Andhra Pradesh (Anti-Corruption Bureau, Andhra Pradesh) and Karnataka (Lokayukta) also have their own anti-corruption agencies and courts.
Andhra Pradesh's Anti Corruption Bureau (ACB) has launched a large-scale investigation into the "cash-for-bail" scam. CBI court judge Talluri Pattabhirama Rao was arrested on 19 June 2012 for taking a bribe to grant bail to former Karnataka Minister Gali Janardhan Reddy, who was allegedly amassing assets disproportionate to his known sources of income. Investigation revealed that India Cements – one of India's largest cement – had been investing in Reddy's businesses in return for government contracts. A case has also been opened against seven other individuals under the Indian Penal Code and the Prevention of Corruption Act.
RTI Success Stories
“Sir, did you get a cut on my dam?” [Nov 1-15, 2008 - Down To Earth]- Corruption in constructing check dam in village Kharula in Maharashtra’s Yavatmal district - check dam (<I year old) flooded after a spell of heavy rains & rushing waters destroyed the seedlings on Banabai’s land- she complained to Tehsil, district Collector & ultimately asked the CM Vilasrao Deshmukh – Banabai went back to the collector’s office on July 1, and asked him directly, “ Tumhi paise khalle ka (did you take a bribe)?” – Result: the concerned official (supervisor in the agricultural department) was suspended pending an inquiry
ANTI CORRUPTION AGENCIES IN INDIA FOR EFFICACY OF IMPLEMENTATION.
To enforce the acts mentioned above the agencies are strongly required so the following machinery was framed to combat corruption.
1. CENTRAL VIGILANCE COMMISSION (CVC):
The Santhanam Committee brought the concept of CVC which is responsible for the enforcement of law and supervises corruption cases in government departments it can even refer these cases to the Central Vigilance Officer(CVO).
2. CENTRAL BUREAU OF INVESTIGATION (CBI):
The CBI is the investigating police agency in India. It investigates cases related to corruption under the POCA Act 2018 and IPC 1860. CBI has its jurisdiction in the central government and union territories.
3. ANTI CORRUPTION BUREAU (ACB):
The bureaus specialize in tackling the issues relating to corruption in government departments against private and public officials under the POCA ACT 2018 and IPC 1860.
4. CONTROLLER & AUDITOR GENERAL (CAG):
Article 148 of the Constitution of India defines CAG.
The duty of this machinery is to see that the money voted by Parliament and by the State Legislatures is only being spent for the appropriate purposes as mentioned under the specified act.
Corruption in India is very deep-rooted and people seem to have no shame engaging in corrupt practices.
Automation, Digitization, Cashless Transaction are the first baby step towards making India Corruption free but still, corruption needs to be fought on multiple forms.
1. The laws are plenty to tackle corruption
2. Corruption-the result of an unholy alliance between Netas (Politicians), Babus (Bureaucrats), Dadas (People with muscle power), and Lalas (Businessmen)
3. In today’s globalized, democratized, informalized world, incorruptible governments can be constructed only using incorruptible citizens as their bricks and mortar.
4. Are our social, economic, political, and spiritual systems producing such incorruptible citizens?
5. Please respect the law and more importantly the anti-corruption laws.