Report No. 254

B. The Proposed Amendments to the PC Act, 1988

1.4. The Prevention of Corruption (Amendment) Bill, 2013 (hereinafter "2013 Bill") was introduced in the Rajya Sabha on 19th August 2013 to amend the PC Act, 1988, the Delhi Special Police Establishment Act, 1946 and the 1944 Ordinance. The 2013 Bill was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice on 23th August 2014, and the Committee submitted its report on 6th February 2014.

Subsequently, on 12th November 2014, an informal and improved version of the 2013 Bill was circulated (hereinafter "2014 amendment") and approved at a Cabinet meeting, based on the recommendations of the Standing Committee. This amended draft was sent to the Commission by way of reference.

1.5. The Statement of Objects and Reasons to the 2013 Bill makes it clear that the amendments were necessitated by India's ratification of the United Nations Convention Against Corruption (hereinafter "UNCAC") in May 2011, judicial pronouncements, and the need to bring domestic laws in line with international practices. It reads as follows:

The Prevention of Corruption Act, 1988 provides for prevention of corruption and for matters connected therewith. The ratification by India of the United Nations Convention Against Corruption, the international practice on treatment of the offence of bribery and corruption and judicial pronouncements have necessitated a review of the existing provisions of the Act and the need to amend it so as to fill in gaps in description and coverage of the offence of bribery so as to bring it in line with the current international practice and also to meet more effectively, the country's obligations under the aforesaid Convention. Hence, the present Bill. [Emphasis supplied]

1.6. However, a perusal of the proposed 2013 amendments makes it clear that the amendments substantially replicate the provisions of the UK Bribery Act 2010 (hereinafter "Bribery Act"). This creates certain problems because the Bribery Act was enacted to repeal the common law offence of bribery and the whole of the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act, 1906, and the Prevention of Corruption Act, 1916.

The UK Law Commission in its 313th Report on Reforming Bribery in November 2008 proposed a draft Bribery Bill, which formed the basis for the eventual 2010 Act. It proposed to replace the existing offences with two general offences of bribery, a special offence relating to bribing a foreign public official and a corporate offence for negligently failing to prevent bribery by an employee or agent.2

2. The United Kingdom Law Commission, Reforming Bribery, Law Com. No. 313 (2008), at xiii.

1.7. More importantly, and this distinction is significant, the Bribery Act applies to any, person and is not restricted to public servants, as in India. In other words, in the UK, a bribe by a person 'P' of a company 'A' to another person 'Q' of a company 'B' is made an offence under the Bribery Act, 2010; whereas the same is not covered by the PC Act.

1.8. The UK Law Commission (and the 2010 Act) did not draw a distinction between public servants and the private sector in determining the limits of the bribery offence, partly because of the increasing private sector provision of goods and services in public interest.

The Act caters to its wide scope by providing for "different paths to liability, some of which are especially suited to, but by no means confined to, those who hold public office."3 The PC Act in contrast is applicable only to "public servants" or those "expecting to be a public servant", which along with "public duty", has been defined very broadly under section 2 of the 1988 Act.

3. Ibid., at ¶ ¶ 3.212-3.218

1.9. Thus, the approach of the 2013 Bill to transplant certain provisions from the UK Bribery Act, while well intended, is misconceived and will serve to create further confusion and ambiguity.