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Report No. 258

Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations-A Study and Proposed Amendments

Chapter I

Introduction

1.1 Corruption as an offence connotes the abuse of public office for private gain. Although actions that further corruption are condemned universally, nations have lacked consensus on the meaning and scope of corrupt conduct. To resolve this, the United Nations Convention Against Corruption, 2003 ("UNCAC") was introduced to bring about clarity on the criminalisation of corrupt conduct that had a comparable impact for all nations. As of today, 176 countries have signed and ratified the UNCAC and pledged to incorporate its provisions into their domestic law. India is one such country.

1.2 Under Article 16 of the UNCAC, States Parties are required to penalise the offer and acceptance of an undue advantage to, and by, a foreign public official or an official of a public international organisation for acts and omissions that are contrary to his official duties. Currently India does not have domestic law in pursuance of Article 16.

The Prevention of Corruption Act, 1988 ("PCA") penalises the acceptance of bribes by domestic public officials, while the Prevention of Money Laundering Act, 2002 ("PMLA") criminalises the illegal flow of money through the attachment and confiscation of property. Accordingly, a Group of Ministers felt it necessary to enact a law on foreign bribery in order to comply with requirements of Article 16 of the UNCAC.

Pursuant to this, The Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2011 ("the 2011 Bill") was introduced in the Lok Sabha on 25th March 2011. Under the 2011 Bill, the offer and acceptance of an undue advantage by a foreign public official or an official of a public international organisation was specifically penalised. Thereafter on 1st April 2011, the Lok Sabha referred the Bill to the Department-Related Parliamentary Standing Committee on Personnel, Public Grievance, Law and Justice ("Standing Committee") for its examination and report.

1.3 On 29th March 2012 the Standing Committee presented its fiftieth Report on the 2011 Bill.1 The Report analysed the provisions of the 2011 Bill and made several recommendations for its improvement. Consequently, a proposal was moved for giving effect to the recommendations of the Standing Committee which was then approved by the Cabinet on 17th August, 2012. Owing to various reasons, however, the 2011 Bill could not be passed.

1.4 In the meantime, the Parliament also amended the PMLA in 2012 in order to make changes to the structure of its Schedule that contained predicated offences. This necessitated the need to amend the 2011 Bill since its provisions made references to the Schedule of the PMLA. Having taken note of this, the Cabinet gave its approval to a set of amendments to the 2011 Bill on 18th March 2013.

Thereafter, a consolidated notice that discussed the recommendations of the Standing Committee and the amendments arising out of the amendment of the PMLA was sent to the Lok Sabha for its consideration on 4th April 2013. However due to various reasons, the 2011 Bill could not be taken up for consideration in subsequent sessions of the Parliament and eventually lapsed with the dissolution of the 15th Lok Sabha.

1 Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, 'Fiftieth Report on The Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2011', available at
http://www.prsindia.org/uploads/media/Bribery/SCR%20Prevention%20of%20Bribery%20Bill.pdf>,
last visited on 4th August, 2015.



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