This post is from Sherbir Panag (MZM Legal Advocates & Legal Consultants in Mumbai, India).
In April 2014, the Department of Justice indicted six defendants’ in an alleged conspiracy to bribe government officials in India to mine titanium minerals. A sitting member of the Indian Parliament, Mr. K.V.P. Ramachandra Rao, was one of the six defendants charged with one count of racketeering conspiracy and money laundering conspiracy, and two counts of interstate travel in aid of racketeering. While Mr. Rao is currently battling the FBI’s request to provisionally arrest him before the Andhra Pradesh High Court, the recent events highlight just one of several instances of bribery allegations in India that see foreign companies at the forefront.
In some cases, if not all, a lack of understanding of the Indian anti corruption framework clearly exists. This post highlights various misconceptions of Indian anti corruption legislation and discusses the direction of several proposed bills pending in Parliament.
India’s anti corruption law does not target the bribe giver
It is often misconstrued that India’s principal anti-corruption legislation – the Prevention of Corruption Act, 1988 (PCA)- does not create an offence of bribery on the part of the bribe giver but merely attacks the demand side i.e., the bribe taker.
This is an incorrect position as under the PCA (Chapter III: Offences and Penalties) the offence of bribe giving is created as one of abetment of bribe taking by the public servant. Therefore, while the substantive text establishes the offence for a “Public servant accepting illegal gratification other than legal remuneration for an official act” or “Public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant” – the bribe giver comes under the ambit of the law by way of abetting this offence (Section 12 – Punishment for abetment of offences defined in section 7 or 11). Thus, the punishment for bribe giving is attune to that which a public servant convicted of accepting bribes would receive, which is imprisonment for a minimum term of 6 months extending to five years and would also be liable to pay a fine.
However, a direct offence is created for bribe giving in instances where individuals accept payments / gratification from others in order to influence a public servant by corrupt or illegal means or to exercise personal influence over a public servant (Section 8 and 9). Hence, third party agents who accept bribes from commercial organisations to be passed on to public servants or consultants who offer to exercise personal influence over public servants to win contracts – would fall within the ambit of these offences.
The above position of law will undergo a major change with the Prevention of Corruption (Amendment) Bill, 2013. The Bill which has been introduced in the Indian Parliament in August 2013, seeks to establish a substantive offence for bribe giving which is to includes not just constructively paying a bribe but the mere offer or promise to bribe a public servant as well. The punishment has been enhanced as well taking the minimum imprisonment to 3 years extendable up to 7 years along with a fine. The Bill further establishes a substantive offence for bribery by commercial organisation, which also provides that when a commercial organisation is found guilty of the offence of bribery, all such persons who at the time at which the offence was committed were responsible or in charge of conducting the business of the organisation will also be guilty of the offence – and liable to a minimum imprisonment of three years – extendable to seven years, as well as a fine. Similarly, where the offence has been committed due to the consent or connivance or neglect of any director, manager, secretary or officer of the company, such person will also be held guilty of the offence.
India does not recognise corporate criminal liability
It is amply clear from the proposed amendment in the Prevention of Corruption (Amendment) Bill, 2013 that India is on its way to expressly recognising corporate criminal liability in the substantive law.
It is to be noted that this is already an admitted position in Indian law. The Supreme Court of India in the ‘Standard Chartered vs. Directorate of Enforcement’ and the ‘Iridium India Telecom Ltd vs. Motorola Inc’ has taken the view that companies can be prosecuted for criminal acts and the criminal liability of a corporation arises when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs.
Gifts are a cultural requirement hence acceptable
Gifts are again a commonly misconstrued area, wherein threshold values of gifts that public servants are entitled to receive are rarely adhered to. This is a complex problem as even gifts at levels that corporate compliance programs envisage of USD. 50-100 may at times not correspond to the laid down threshold values.
In this regard, it would be imperative to understand that the PCA’s ambit for bribes is extremely wide and includes any gratification that a public servant receives other than legal remuneration. The PCA further prevents public servants from obtaining anything of value without consideration from persons such public servant is likely to engage in business with.
Broadly speaking with regards to gifts two classes of public servants emerge:
- Public servants governed by the Central Civil Services (Conduct) Rules, 1964.
- Public servants (Ministers) governed by the ‘Code of Conduct for Ministers’ by the Ministry of Home Affairs.
The Central Civil Services (Conduct) Rules apply to four classes of officials and the individual threshold value of the gifts each class of officials can accept is clearly laid down. Rule 13 of the same does not allow any Government servant to accept, or permit any member of his family or any other person acting on his behalf to accept, any gift. The expression “gift” shall include free transport, boarding, lodging or other service or any other pecuniary advantage when provided by any person other than a near relative or personal friend having no official dealings with the Government servant. With regards to foreign firms the scrutiny is higher and the Rules provide that a Government servant shall not accept any gifts from any foreign firm which is either contracting with the Government of India or is one with which the Government servant had, has or is likely to have official dealings.
The Code of Conduct for Ministers lays down that Ministers of both the Union and the State should not accept valuable gifts except from close relatives, and that members of their families should not accept any gifts at all from any person with whom such Minister may have official dealings. When Indian Ministers are travelling abroad they are entitled to receive symbolic gifts and gifts beyond Rs. 5000 (USD. 85) may not be retained by the Minister.
Facilitation payments are acceptable
The PCA does not recognise facilitation payments or any exception to the gratification other than legal remuneration concept. The gratification which if not legal remuneration is deemed illegal whether given for a lawful or unlawful purpose. Hence any speed, grease or facilitation payments would be considered to be bribes under the PCA.
Private Sector Bribery is not punishable in India
There exists no offence for private sector bribery as the PCA is focussed on the bribery of public servants. The Ministry of Home Affairs is at this juncture working on amending the Indian Penal Code to introduce two sections that deal with private sector bribery.
The lack of legislation however would not stop a company whose employee has accepted a bribe in the course of business, from bringing an action of cheating or breach of trust along with other penal provisions against the said employee. This would essentially be a criminal proceeding as both cheating and breach of trust are penal provisions. A similar action of cheating could be also be instituted by the aggrieved company against the individual / company that bribed its employee – as a dishonest intention clearly appears.
India does not criminalise bribery of foreign public officials
At present the bribery of foreign public official or officials of public international organisations is not an offence. A Bill titled the ‘The Prevention of Bribery of Foreign Public Officials and Officials of Public International Organizations Bill, 2011’ has been introduced in the Indian Parliament. The Bill penalises the offer or promise to bribe foreign public officials and will also allow the Government of India to enter into agreements with other countries for enforcing this law and for exchange of investigative information. Further, extradition treaties that India has with other countries who have signed and ratified the United Nations Convention against Corruption will be deemed to stand amended to include the offences envisaged under this Bill when it is passed by Parliament. The punishment under this Bill is imprisonment for a minimum term of 6 months extendable to 7 years and a fine.
On the flip side India has entered into Mutual Legal Assistance Treaties in Criminal Matters with 34 countries, is a member of the Interpol, has Extradition Treaties with 37 countries and Extradition Arrangements with 8 countries. Hence with growing cooperation between investigative and prosecution authorities, it is to be noted that the legal framework in India is provisionally competent to offer assistance if the need so arises.
Administrative action will not be taken in case of bribery
The FCPA Professor’s post in January 2014 highlighted pre-contract integrity pacts that have become a mandatory requirement for public sector contracts and the ensuing action that could be taken against a company for the failure to comply with the pact or engage in bribery. Administrative action in the form of contract termination, forfeiture of bid amounts, encashing bank guarantees, and blacklisting have proven to be swifter attacking the commercial viability of bribery by putting the stipulated business on hold. Examples of administrative action which has impacted commercial organisations can be seen with the Ministry of Defence unilaterally terminating a Euro 556 Million contract with the Anglo-Italian helicopter manufacturing company AgustaWestland on the 1st of January 2014 for breach of the pre-contract integrity pact and earlier in 2012 blacklisting six companies from doing business in India for ten years.
A Bill titled the ‘Public Procurement Bill, 2012’ has also been introduced in the Indian Parliament that further seeks to regulate public sector procurement and provides for a debarment from all public procurements for a period of three years if a bidder has been convicted for an offence under the Indian Penal Code or the IPC. The Bill also creates an offence for interfering or influencing with the debarment process in an unlawful manner.
The last 5 years have seen various efforts being made to reform the Indian anti corruption legal framework and various examples of these proposed legislations that have been introduced in the Indian Parliament have been touched upon above. The Indian legal framework most definitely has various gaps just like every other legal system does, but where India takes a beating is on the execution of its legislative intent and enforcement actions.
The inherently weak enforcement mechanism coupled with compromised political will – is reluctantly faced with reform in the face of a strong public sentiment against corruption and proactive media houses. The business of bribery has been hit as media reporting and public awareness has mandated that demonstrable action is taken, which has resulted in more matters being investigated and finally prosecuted. This notwithstanding, bribery is unfortunately treated as an opportunity cost in India and the number of corruption scandals and global watchdog reports would only go on to re-affirm this point.
The Indian legal system is provisionally sound enough to deal with corruption when the will to implement the same exists. The risk for companies therefore lies in when the system works and thus the only question that companies doing business in India have to ask themselves is whether in the cross winds of whistleblowers, enhanced public scrutiny and media trials they would like to be the rare or growing subjects of this system working.
 With respect to the analysis on the proposed Bills’ discussed, it is to be noted that these Bills are pending before the Indian Parliament and may be amended / modified before being finally passed. The analysis is based on public drafts of these Bills and nothing in the post should construe finality of the provisions of the same.