Anti-Corruption and Anti-Bribery Laws in India – Governance, Risk Management, Compliances and Ethics Important Questions

Question 1.
Describe the following terms:
(i) “Foreign Public Official” as per ICSI Anti-Bribery Code.
(ii) “Disciplinary Mechanism” under ICSI Anti-Bribery Code.
(i) Foreign public official means any person holding a legislative, exec-utive, administrative or judicial office of a foreign country, whether appointed or elected, whether permanent or temporary, whether paid or unpaid and includes a person who performs a public function or provides service for a foreign country.

(ii) As per clause 9 ‘Sanctions for Non-compliance’ of ICSI Anti Bribery Code any non-compliance of the Code is subject to disciplinary mechanism. The company shall set up disciplinary mechanism as approved by its Board, for non-compliance of any part of t he Corporate Anti-Bribery Code.

The disciplinary mechanism shall include:

  • Nature of offence
  • Penalty of the office
  • Competent Authority

Question 2.
Discuss in brief the composition of Lokpal and its powers.
1. Composition of Lokpal – Lokpal is a statutory, multi-member body which has no constitutional backing. It consists of one Chairperson and a maximum of 8 members.

Chairperson – A person becomes eligible for the appointment as Chairperson of Lokpal if he is:

  • A former Chief Justice of India.
  • A former member of Supreme Court or an eminent person with impeccable integrity and outstanding ability.
  • He should have adequate knowledge and 25 years of experience in the matters of the anti-corruption policy, finance, vigilance, law and management, and public administration.

Members – Out of 8 permissible members:

  • 50% are from the judiciary: Judicial members should either be a former Judge of Supreme Court or a former Chief Justice of a High Court.
  • Rest 50% of members are from OBC/SC/ST/women and minorities: If he is a person of impeccable integrity and outstanding ability having special knowledge and expertise of not less than twenty-five years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and manage-ment.

2. Powers of Lokpal The inquiry wing has the power to search and seize objects both movable and immovable objects and make reports based on them. These reports would be taken up by the 3 – member Lokpal benches for further scrutiny. The benches would give the opportunities for the allegedly corrupt officers to say in their defense. After this, the benches would undertake any of the following alternatives.

  • If the officers are found guilty, the benches would grant their sanction to the prosecution wing or CBI to file charge sheets against them. The benches can also direct the concerned government departments to start proceedings against them.
  • If the officers are found innocent, the benches would direct the filing of the closure of case reports before the Special Court.
  • Supervisory powers of Lokpal (Section 25)
  • Search and seizure (Section 26)
  • Lokpal to have powers of civil court in certain cases (Section 27)
  • Power of Lokpal to utilise services of officers of Central or State Government (Section 28)
  • Provisional attachment of assets (Section 29)
  • Confirmation of attachment of assets (Section 30)
  • Confiscation of assets, proceeds, receipts and benefits arisen or procured by means of corruption in special circumstances (Section 31)
  • Power of Lokpal to recommend transfer or suspension of public servant connected with allegation of corruption (Section 32)
  • Power of Lokpal to give directions to prevent destruction of records during preliminary inquiry (Section 33)
  • Power to delegate (Section 34)

Question 3.
Write a note on the following; Constitution and powers of special police establishment as per Delhi Special Police Establishment Act, 1946
Constitution and powers of special police establishment are provided under Section 2 of Delhi Special Police Establishment Act, 1946. They are:
1. Notwithstanding anything in the Police Act, 1861 (5 of 1861), the Central Government may constitute a special police force to be called the Delhi Special Police Establishment for the investigation in any Union territory of offences notified under section 3.

2. Subject to any orders which the Central Government may make in this behalf, members of the said police establishment shall have throughout any Union territory, in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers of that Union territory have in connection with the investigation of offences committed therein.

3. Any member of the said police establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise in any Union territory any of the powers of the officer in charge of a police station in the area in which he is for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer in charge of a police station discharging functions of such an officer within the limits of his station.

Question 4.
Explain the following; Purpose and extent of Prevention of Corruption Act.
The Prevention of Corruption Act, 1988 (No. 49 of 1988) is an Act of the Parliament of India enacted to combat corruption in government agencies and public sector businesses in India. This law defines who a public servant is and punishes public servants involved in corruption or bribery. It also punishes anyone who helps him or her commit the crime corruption or bribery. It extends to the whole of India except the State of Jammu and Kashmir and it applies also to all citizens of India outside India.

The PCA deals only with bribery of public servants. It does not extend to bribery or corruption in the private sector, i.e. where a public servant is not involved. That said, a private person/entity will be liable for inducing a public servant to commit an act that is prohibited by the PCA, by corrupt or illegal means or by exercising personal influence.

Question 5.
Briefly explain the concept of Central Vigilance Commission
The Central Vigilance Commission (CVC) is the body constituted, by the Government in the year 1964 on the proposal of the Santharam Committee on the Prevention of Corruption. The body was established with an intention to check corruption in the Government departments. The Commission is an independent statutory body exempted from the authority of the executive.

The CVC attained statutory recognition by an ordinance of 1998 and in September 12, 2003 the ordinance was replaced by The Central Vigilance Commission Act enacted by the Legislative Department under the Ministry of Law and Justice. The main purpose of the Act was to establish the Central Vigilance Commission to investigate the offences punishable under the Prevention of Corruption Act, 1988 by the public servants working under the Central Government, Corporations constituted under the Act of Parliament, Government companies, and local bodies owned and managed by the Centre.

Governance Risk Management Compliances and Ethics Notes