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Critical Analysis Of The Prevention Of Corruption Act

Introduction: Understanding Corruption

In the popular media, the concept of corruption has made the populace disillusioned with the modern socio-political climate. By definition, corruption can be moral or digital.

In the former, a person does something morally depraving. On the other hand, the latter sees a computer program going through a series of errors.

However, most people view corruption in the political realm.

In other words, people who have political authority can abuse their power for a reason. The corruption in Venezuela, for example, has wrecked the already vulnerable economy. Their leaders' inability to root out corruption in their governmental branches and law enforcement agencies worsened the situation .

Another example of corruption is the Prohibition in the 1920s United States. When the agents responsible for arresting people with alcohol were corrupt, people questioned the implementation of the 18th Amendment. People had it enough when the Great Depression came, making them unemployable. Why even continue an expensive law that was ineffective and corrupt? That was the question raised in the average Joe's mind .

Corruption in India

India suffers from a plague called corruption. It played a role in India's weak economic structure despite being one of the world's strongest economies. There are plenty of reasons for the current infrastructure:
  • India has a few leaders that are competent to improve the economy.
  • Lack of organized management leads to ineffective methods to weed out corruption.
  • If an economy is unstable, then it leads to massive unemployment. Thus it leads to changing the standards of living.
  • Lack of better officials can make a small-scale corruption into a mountainous one.

The mentioned causes play primary roles in consequences like:

  • Disruption of development
  • It increases the number of people in poverty and unemployment.
  • Many people leave the country for better job opportunities. Massive brain drain causes loss of talent because incompetent people take the positions of power. For example, the reservation system in India is the most polarized. For some, it gives more opportunity to the people of the marginalized community. For others, it excludes the people from the general community from getting better jobs, thus insulting meritocracy.

The politicians made the system into a time bomb which could cause more division in the society. People get the job easily because of the reservation system, even if the person is undeserving or incompetent. The rich and the elites of the marginalized community might exploit the system in their favor which might be disadvantageous for the poor in the general community.

It destroys the good intentions, Dr. B.R. Ambedkar implemented while drafting the Indian Constitution:
  • When bribery affects the people in power, it even affects the courts. It causes many people to give up their hopes in the judicial system.
  • Corruption disrupts businesses and destroys the natural resources in the country.
One Wikipedia article states that about 62% of Indians have bribed public officials. The same article highlights that 50% of Indians paid bribes for the first time. They also got into public services through nepotism. India ranks 86th out of 180 in the Corruption Perception Index. The number of corruption cases is declining, but it's still a long way to go.

Case Laws
  • Coal Scam:

    The public went flabbergasted when the government got involved in making the country's coal corporate-friendly. The cost of issuing the coal was $140 million. The CBI officials in charge of the investigations came under scrutiny. The reason was they took bribes to weaken the case.
     
  • 2G Spectrum Case:

    The case was the talk of the day during the 2000s. Many top brass politicians got involved in the case. In a nutshell, the folks at the top sold 2G spectrum licenses to telecom corporations. A. Raja, one of the people of interest sold the licenses at low prices. The move backfired because he lost about $25 billion. The CBI failed to convict anyone, despite having mountains of evidence. The Supreme Court had to let people involved in the cases including A. Raja go scot-free.

The Prevention of Corruption Act (PC Act)

The PC Act 1988 came into fruition. It changed the legal measures to tackle corruption in the governmental and public official branches.

The PC Act has two objectives:
  • The law aims to prevent misconduct in government offices.
  • The law finds the bad actors in the governmental buildings and will prosecute and punish them.
Despite its enactment, the law has seen only a few successes. Thus, an amendment came into fruition on 26th July 2018.

The 2018 Amendment
The amendment act 2018 is compatible with the UN Convention against Corruption 2005. India ratified the latter in 2011.

The Act has several highlights, which are as follows:

  • Undue Advantage: If a public official accepts (or almost accepts) undue advantage for their or others' benefit, their punishment will be imprisonment (minimum three years, maximum seven years). Undue advantages are remunerations that are other than legal.
  • The person who gives undue advantage to public officials will be liable for the said move. In other words, any statements he makes against the public official are void. Worst case scenario, they'll be at risk to testify in the court, and the court will discard their story.
  • If a commercial corporation gets caught paying bribes to public officials, they have to pay a hefty fine. In most cases, corporations pay bribes to gain the initiative or save their business. This is mentioned under Section 9 of the PC Act.
  • The amendment reiterates the definitions of criminal misconduct.
     
Criminal misconduct can be categorized in three ways:
  • Public officials use dodgy/illegal means to gain something valuable and monetarily reward
  • Public officials abuse their authority to gain valuable or monetary rewards.
  • Public officials obtain valuable or monetary rewards that exclude public interests.


The amendment replaced with new definitions:

  • Any property which is owned is misappropriated or conversed for public official's use.
  • Any assets that are amassed are disproportionate to known income sources.
  • The law required sanctions before the appropriate government to prosecute the public officials in office. The amendment act further protects former approval to the investigation pre-prosecution. It also applies to ex-public officials. Section 19(1) gives a directory period of three months for the appropriate government to give its decision.
  • The Amendment Act authorises the attachment and administration of property obtained through the commission of a PC Act offence under the Prevention of Money Laundering Act 2002 and the Criminal Law Amendment Ordinance 1944.
  • The Special Judge is required by the amendment act to complete the trial within two years. At the same time, the trial period can be extended from six months to four years. It is necessary to document the reason for the extension. However, because the language is advisory rather than mandatory, the court is less likely to follow it.
  • The penalty has been increased from a minimum of 6 (six) months to 3 (three) years, with or without a fine, and from a maximum of 5 (five) years to 7 (seven) years. The penalty for aiding and abetting crime has also been increased by the same amount.

Critical Conclusion
Despite its positive outlook, the law still suffers some loopholes:
It brought more workload in investigation and prosecution. The main intention of the act is to prevent honest officers from victimization. At the same time, it became a shield that could serve the accused officers.

The amendment act does not specify the fine for commercial corporations. Even though the corporations will now have to abide by everything the central government has to say. They have to ensure that their internal mechanism stays in place when it comes to developing a defense for a bribery case. The upper echelons must provide specifics when it comes to future briber.

Furthermore, under the PC Act, the person's guilt was presumed for the offenses of accepting an undue advantage, being a habitual offender, or aiding and abetting an offense. This presumption is now limited to the offense of accepting an unfair advantage. For those accused of being habitual offenders or abetting an offense, the burden of proof is shifted to the prosecution.

The PC Amendment Act has improved the corruption situation in India. It has become a positive development. It changed the definitions and penalties of corruption conducts for the better. It became a deterrent for the offenders to commit the offense.

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