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Anti – Corruption Laws in India


INTRODUCTION

The universal truth is that corruption is a hindrance to upset the system if it is present in any organization. Corruption takes place when a certain party fails to rise to the occasion on merit basis. Thus, corruption is bad for the swift functioning of any economic system. It distorts the incentive system as people are discouraged in the name of merit as a means to success.


The laws and acts of India were reviewed from various government sites of India and further case studies from secondary data based empirical studies have been also been utilized. Besides, the chapter also looked at the effectiveness of these laws from the lense of socio-legal approach. Assessing the legal effectiveness itself is challenging as it looks at the impact the law on areas of human life outside the immediate legal sphere. However, such verification has to do before introducing a new one. In fact, its usefulness also needs to be assessed.


According to the Friedman, the Legal System-A Social Science Perspective, there is a common rule, is that whether the laws achieved its goal for which it was adopted. Yet, opinion on the prevention of corruption act varied across the legal experts especially with reference to the definition of corruption act. Therefore, this study would focus only on the definition legal effectiveness that draws mostly upon the socio-legal theories on legal effectiveness. This article attempted to argue that the corruption of public office is essentially a political problem, as such an effort to control the problem include a large political component. The article also argues that the efficiency of law in social engineering is contingent on the synergy of social, economic, and political forces within the area of operation.



Objective of the study:

The objective of making this manuscript is to study and research on the current corruption scenario in the country and how the corruption has affected our economic conditions and what are the laws and procedures made by the government to tackle the disease of corruption. I have tried to present some bizarre facts about the on-going corruption in India.


Types of Laws

  • Indian Penal Code, 1860

  • The Prevention of Corruption Act, 1988

  • The Benami Transactions (Prohibition) Act, 1988

  • The Prevention of Money Laundering Act, 2002


Indian Penal Code, 1860:

• In IPC “public servant” define as a government employee, military officers, air force or navy; police, judges, officers of Court of Justice, and any local authority established by a central or state act.

• Section 169 of IPC pertains to a public servant unlawfully buying or bidding for property. The public servant shall be punished with imprisonment of upto 2 years or with fine or both. If the property is purchased, it shall be confiscated.

• Section 409 of IPC pertains to criminal breach of trust by a public servant. The public servant shall be punished with life imprisonment or with imprisonment of upto 10 years and a fine.


The Prevention of Corruption Act, 1988

• In the IPC in addition to the categories included , the definition of “public servant” includes Public Service Commission, banks, employees of universities and office bearers of cooperative societies receiving financial aid from the government.

• If gratification had been taken by a public servant other than his legal remuneration in respect of an official act or to influence public servants is liable to minimum punishment of 6 months and maximum punishment of 5 years and fine. This Act also penalizes a public servant for taking gratification to influence the public by any illegal means and for exercising his personal influence with a public servant.

• If valuable thing accepts by a public servant , without paying for it or paying inadequately from a person with whom he is involved in a business transaction in his official capacity, then he shall be penalized with minimum punishment of 6 months and maximum punishment of 5 years and fine.

• In order to prosecute a public servant it's necessary to obtain prior sanction from the central or state government .


The Benami Transactions (Prohibition) Act, 1988

This act was formed to restrict Benami transactions and the right to restore the benami properties.

A benami property is the one where the property is transferred to another person or property owned by a particular person is paid by another person (nameless property). During these transactions, the person who makes payment for the property is considered to be the owner of the particular property either directly or indirectly. It is considered to be an illegal activity based on the Benami Transaction (Prohibition) Amendment Bill, 2015. It provides:

a) All the benami properties shall be procured by the subjected authority in a precise manner by adapting the rules and prescribed procedures.

b) Repayment of money cannot be made for the acquisition of benami property

c) the property in the name of the spouse or children are not considered as benami property

d) the security deposit owned by a registered authority owner under the act of provisions of the depositary in 1996, the agent would not be considered as a benami.


The Prevention of Money Laundering Act, 2002

The Prevention of Money Laundering Act (PMLA) 2002 is another legal control to prevent money laundering through corruption. Under this Act, the institutions in the target are banks, financial institutions and intermediaries. An amendment was also brought that led to the inclusion of non-profit organizations which will remain under the scanner of PMLA.

A recent instance where this act was violated involves an action initiated by the Enforcement Directorate to attach properties of DMK-controlled Kalaignar TV under the PMLA for recovering as a staggering amount of Rs. 215 crore in connection with the 2G scam.


As per this Act, an offence of money laundering involves a person is involved in criminal proceeds and presents as untainted property. Proceeds of crime here indicate about any property obtained by a person by means of criminal activity and that comes under the purview of this act. A person could be prosecuted for the offence of money laundering, provided he or she has been charged with committing a scheduled offence.


Here the punishment for the offence of money laundering is rigorous imprisonment which could last from minimum of three years to a maximum of seven years including the fine up to Rs 5 lakh. If a person is found indulged f in an offence under the Narcotics Drugs and Psychotropic Substances Act, 1985, then the imprisonment term could extend up to 10 years. The Adjudicating Authority decides that whether any of the seized property involves money laundering. An Appellate Tribunal will hear appeals against the orders of the Adjudicating Authority including other authority under this Act. All the institutes related to finance and banking industry maintains entire transactions and assesses records of all customers and facilitates information to the requisite authorities.


Following are the process to investigate and prosecute corrupt public servants

Authorities at the helm of affairs, in general, to investigate and prosecute corruption cases are the Central Bureau of Investigation, the Central Vigilance Commission, and the state Anti-Corruption Bureau (ACB). The Institute of Directorate of Enforcement and the Financial Intelligence Unit is responsible for investigating and prosecuting money laundering cases.

The CBI and state ACBs have authority to investigate corruption cases as per The Indian Penal Code, 1860 and The Prevention of Corruption Act, 1988 . The jurisdiction of CBI is the Central Government and Union Territories. On the other hand, the state ACB is responsible for investigating cases within the states; otherwise, states can refer cases to the CBI


Cause of corruption in India:

There is some truth in the idea that India lacks the wherewithal to catch the corrupt people. In Maharashtra the Anti- Corruption bureau has registered 698 cases in 2010.The corruption instances are in thousands number in each day, and if only 698 cases can be registered in a single year by the ACB Maharashtra, it's only tokenism. There is a need of raising this figure by at least ten times, if the ACB is to have any intention in helping decrease corruption.

Similarly, data relating to the performance of Lokayukta in Maharashtra shows that, with a staff of over 70 members in it, it received about I1,153 allegations during the two and a half decade period between 1981 and 2006 over, but only 57 instances could find where it recommended an action by the government.


However, I submit that there is another, more fundamental reason of corruption: Our system's inability to punish a few corrupt persons that our investigative agencies could identify.

To illustrate, I presented the data published in the Indian Police Journal in April-June 2010. A study was carried out on performance of the anti-corruption branch of the CBI for the period 1980-1984 in the year 2008, that is, after 26 years:"

During the period of 4 years, had been investigated 712 accused & of these, only 273 persons were charge sheeted, Out Of these, the CBI was able to get conviction in mere 144 cases. The average time that was taken for investigation was 13.4 months, whereas the average time to get the convictions was seven years and four months. Out Of these, only 4 persons have been to prison for a period over 20 days, since most of those who were convicted appealed for forgiveness, while some of the convicted had died. In 2008, 71 appeals in the higher courts were still being contested. Even after 26 years the nation is still spending money in 71 cases to try 71 people .


It's now indicated that getting the investigative agencies to become more efficient may not be the solution to the corruption, as it will get stalled at the judicial stage.

Justice B.N. Kirpal, former chief justice (CJI) of the Supreme Court of India, in an affidavit in the New York Supreme Court, said that "justice cannot be obtained in India because of the long time it takes." then this affidavit was used to prove that justice can't be obtained easily in India. Perhaps, he was lending to the very famous of Hindi dialogue that our courts can only deliver "tareekhpetareekh", but not justice.


Conclusion:

Corruption is an intractable problem. It's like diabetes, which can only be controlled, but not totally eliminated. It may be possible to contain within tolerable limits but not able to root out corruption completely at all levels.

Honest and dedicated persons for the life of public, could be the most important prescription to combat corruption. In the international market it worsens our image and leads to loss of overseas opportunities. India was being in a "Debt-trap' situation the law makers would have to think through their feet to form measures that would give help to curb the corruption. Only catching a corrupt and award him a few years of imprisonment won't be sufficient. The money that government lost due to the person's act should be recovered from him in addition to the fines and the imprisonment sentence. Unless stringent punishments are not awarded, people will not consider the importance of curbing in building a better society. The law makers must have tried many times to contain corruption through new statues, but have failed miserably due to the loop holes in it. Due to the corruption and the political influence. even in the judiciary the bills that could have brought for some change were never passed.


For e.g. The Lokpal bill. By the time a scam is busted, our country already has errors of rupees. People's lethargic attitude on taking few measures on their own to curb corruption also adds to the reason why we are taking so long to be corruption free. Even by the Anti-corruption department a lot of people are accused of corruption, very few are awarded a sentence and as at the time there is a hearing against someone being convicted, many of them are dead already due to longer time. With India being in such huge debts, there is absolutely no way that it is recovering from it. But things are bound to improve if we are able to contain the corruption malice.



Reference :-


https://www.mondaq.com/india/white-collar-crime-anti-corruption-fraud/1022326/anti-corruption-compliance-in-india


https://thelawreviews.co.uk/title/the-anti-bribery-and-anti-corruption-review/india


https://www-barandbench-com.cdn.ampproject.org/v/s/www.barandbench.com/amp/story/apprentice-lawyer/the-importance-of-abac-anti-bribery-and-anti-corruption-compliance?amp_js_v=a6&amp_gsa=1&usqp=mq331AQHKAFQArABIA%3D%3D#aoh=16229078337264&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fwww.barandbench.com%2Fapprentice-lawyer%2Fthe-importance-of-abac-anti-bribery-and-anti-corruption-compliance


This Article is written by Minali Gupta from ITM University, Gwalior

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