Report No. 258
Critical Analysis of the Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2015
4.1 The Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2015 ("the 2015 Bill") has been enacted in pursuance of Article 16 of the UNCAC which India signed on 9 December 2005 and ratified on 9 May 2011. The intention of the 2015 Bill is to serve as a composite legislation that contains provisions in pursuance of both Article 16(1) [active bribery] as well as Article 16(2) [passive bribery] of the UNCAC. By clause 1(2), it establishes applicability both on the basis of the territorial principle as well as the nationality principle. It has three key parts-
4.2 First, the offences established under the Bill; second, the processes for investigation and prosecution of such offences; third, the inter-relation of the Bill with other legislations and miscellaneous matters.
4.3 Clauses 3 and 4 of the Bill contain its main offences. Clause 3, enacted in pursuance of Article 16(2), broadly stated, makes bribe-taking by a foreign public official or official of a public international organisation punishable. Clause 4, enacted in pursuance of Article 16(1), makes giving of bribes to a foreign public official or official of a public international organisation punishable. However, an exception to the operation of clause 4 is carved out for commercial organisations if the expenses were reasonable and related to promotion, performance of a contract or the organisation had adequate procedures to prevent persons from engaging in such conduct.
4.4 The key requirement to establish both offences is the existence of an undue advantage. In clause 3, the foreign public official or official of a public international organisation must obtain an undue advantage from what he accepts; analogously, in clause 4, the bribe-giver must give an undue advantage to a foreign public official or official of a public international organisation. Further, in clause 4, the bribe must be given to obtain an advantage relating to the conduct of international business. Attempts to take or give bribes as well as abetment of the commission of such offences are punishable under clause 5.
4.5 Clauses 6 to 12 deal with the processes that will be followed in prosecuting offences under the Bill. They are premised on the understanding that the Bill will have extra-territorial application and thus require agreements with foreign countries for enforcement. Accordingly, clause 6 empowers the Central Government to enter into such agreements for enforcement as well as exchange of information. Clause 7 deems offences under this Bill to be extraditable in all extradition treaties signed by India. Clauses 8 to 12 deal with processes pertaining to exchange of information and international co-operation pertaining to a particular case.
4.6 Clauses 13 to 19 and 22 provide for the inter-relation between the Bill and other legislations, including any consequent amendments that are provided in the Schedule to the Bill. Additionally, clause 16 provides for appellate and revisional powers of the High Court from decisions of the Special Judge who is the adjudicating authority under this 2015 Bill. Clauses 20 and 21 deal with the scope and procedure for delegated legislation under the 2015 Bill.
4.7 A clause-by-clause analysis of the 2015 Bill has been conducted hereafter. Each provision of the proposed 2015 Bill is also tested against relevant provisions of UNCAC, and wherever necessary, compared with similar laws in other jurisdictions.
5. Clause-by-Clause Analysis of the Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2015