Report No. 258
1.5 A new proposal has now been made to re-introduce the 2011 Bill with certain suggested amendments and recommendations as the Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2015 ("the 2015 Bill"). During the examination of this proposal, a suggestion was received from the Minister of Law to consider including exceptions (defences) into the 2011 Bill in line with international experience.
In this context it was noted that in the latest draft of the 2011 Bill there existed no exceptions to the offence of foreign bribery. The laws on foreign bribery in the UK and the USA however provided for such exceptions. Accordingly, it was proposed that similar exceptions/defences to the offence of foreign bribery must also be introduced under Clause 4 of the 2015 Bill.
In this context, as per a letter dated 14th July 2015 from the Additional Secretary, the Minister for Law and Justice, Government of India, the Department of Personnel and Training now proposes to introduce the 2015 Bill in the next session of the Parliament to demonstrate India's commitment towards the implementation of its obligations under the UNCAC.
The following defences have been proposed to be included under clause 4 of the 2015 Bill - (a) "local law defence", (b) "reasonable expenses directly related to the promotion, demonstration, or explanation of products or services or the execution or performance of a contract" and (c) "defence of adequate safeguards".
1.6 The Ministry of Law and Justice has requested the 20th Law Commission of India ("the Commission") to give its views and recommendations on the text of the 2015 Bill. Consequently, the Commission under the Chairmanship of Justice (Retd.) A.P. Shah has decided to undertake the present study titled "Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations-A Study and Proposed Amendments" to review the provisions of the 2015 Bill and recommend appropriate amendments.
1.7 In the Report, the Commission proposes to undertake an analytical study of municipal, comparative and international law provisions pertaining to bribery of foreign public officials and officials of public international organisations. This is undertaken with a view to recommend amendments to the 2015 Bill thereby ensuring India's compliance with Article 16 of the UNCAC. Accordingly this report is split into five Chapters. After the introduction (Chapter 1), Chapter 2 discusses the object and purpose of the UNCAC, specifically the drafting intent underlying Article 16.
Other articles relevant to the offences contained under Article 16 are also analysed. Chapter 3 examines bribery legislations in other jurisdictions that are States Parties to the UNCAC. A cross-section of such countries is selected to demonstrate the various approaches taken to secure compliance. Chapter 4 contains a summary of the provisions of the 2015 Bill and a critical analysis of the same. Chapter 5 then makes recommendations on how the 2015 Bill ought to be amended in order to secure India's compliance with Article 16 of UNCAC.
1.8 In order to prepare this Report, the Commission formed a sub-committee comprising the Chairman, Justice (Retd.) Ajit Prakash Shah, Mr. Sidharth Luthra (Senior Advocate), Mr. Siddharth Aggarwal (Advocate), Dr. Arghya Sengupta (Vidhi Centre for Legal Policy) and Ms Sumathi Chandrashekaran (Consultant, Law Commission). Ms. Ritwika Sharma, Ms. Yashaswini Mittal (advocates) and Mr. Rahul Bajaj (law student) provided research assistance.
1.9 Thereafter, upon extensive deliberations, discussions and in-depth study, the Commission has given shape to the present Report.