As Law Commission of India submits its 254th report on the Prevention of Corruption (Amendment) Bill, 2013 to the government, HT spoke to its chairman Justice AP Shah on how some of its fresh recommendation, if implemented, will help curb corruption.
How does the Commission propose to deal with the obvious nexus between politicians, corporations and police that perpetuates corruption? How can this issue be tackled?
There is no simple or a quick-fix solution to the menace of corruption and it needs to be fought with on several fronts. India has decided to ratify the United Nations Convention Against Corruption (UNCAC) in order to strengthen our anti-corruption laws. It also lays out how the judiciary should deal with corruption cases in a speedy and more effective manner. The amendments proposed to the Prevention of Corruption Act (PC Act) are a step towards that.
The 254th report has been critical of the new PC Act. What, according to you, are the core problems with it?
Several factors such as ratification of the UNCAC, the international practice of treatment of corruption and judicial pronouncements have all necessitated a review of the present PC Act. A perusal of the amendment bill shows that the provisions of the UK Bribery Act, 2010 — which does not extend to public servants — have been substantially copied. The Commission suggested changes to plug the possible loopholes and strengthen our anti-corruption laws.
How does the commission propose to deal with non-monetary bribes?
The Commission has clarified the definition of “undue advantage.” It now says that the word “gratification” is not limited to pecuniary gratifications or to gratifications estimable in money (eg sexual favours etc.).
The report widens the ambit of the law to hold corporates guilty of corruption if they don’t have guidelines in place. However, it is silent on what would be adequate guidelines. Why?
Generally, there is an obligation on the government to publish such guidelines on procedures that a commercial organisation must put into place. The UK Bribery Act 2010 and Foreign Corrupt Practices Act 1977 in the US also state this. In the absence of government framed guidelines, it may be difficult for corporates to put in an effective anti-corruption mechanism in place.
In terms of directors’ liability: the report links vicarious liability with consent and active connivance. Does this leave open an ‘Ostrich defence’ for the directors?
A person in-charge of the company’s business conduct can be held liable, unless he can prove that the offence was committed without his knowledge or despite his exercising due diligence to prevent the offence.
The provision that directs sanction to prosecute public servants to be taken from Lokpal is likely to cause delay. Why is the report silent on this?
This provision may create some logistical problem, as the Lokpal may have to deal with a lot of cases. Therefore, the government, may consider that some of the cases, below a certain rank be sent to CVC for consideration.