Individuals and companies paying grease money to speed up routine government work in foreign countries should not be prosecuted under the proposed foreign official bribery law, the law commission told the government.
The government had asked a panel of law experts, headed by justice (retd) Ajit Prakash Shah, to incorporate safeguards for companies into the proposed law. It seeks to check corruption in international business transactions and makes it a crime for Indians to pay bribes to foreign officials abroad.
“A comprehensive list of defences/exceptions under this law must also necessarily include a provision for ‘routine government function’, which will take into account payments made in the course of routine duties or functions of foreign public officials… for the purpose of issuing permits or licenses, processing official documents, and similar services,” said the report given to law minister DV Sadananda Gowda last week.
A government official added the exemption would only protect companies from prosecution by an Indian agency under the proposed law. If they do make facilitation payments, company officials would still be liable to prosecution by local authorities.
In recommending this exception, the commission has drawn a distinction between bribes paid to influence decisions and those aimed at expediting routine government action that does not involve discretion.
The stand is in contrast to India’s domestic law that prescribes a jail term ranging from six months to five years for bribery, irrespective of the amount of money or motive. Incidentally, the law commission last year proposed to raise this minimum punishment to three years, and the maximum to seven.
Globally, there is no unanimity on this provision. Several countries such as the United States, Canada and Australia permit ‘small’ payments to be made to grease the wheels of bureaucratic machinery abroad — every such payment needs to be recorded and disclosed to authorities.
The UK’s anti-corruption law, however, does not have a similar provision.