View: Why new Prevention of Corruption Bill is a game-changing move

By Amitabh Kant

India is at a point where it must grow at 9-10% for at least the next 30 years. This requires very progressive, bold and courageous decisions to be taken by the bureaucracy across sectors. Bureaucrats must be allowed to make such decisions with the full protection of the law for decisions taken in good faith without the fear of harassment or punishment through the provisions of the Prevention of Corruption Act (PCA). If this is not enabled, overall growth will be stunted. Which is why the Prevention of Corruption (Amendment) Bill, 2018, passed by Parliament last week is a game-changing move by GoI.

Abuse of Section 13(1)(d)(iii) of the PCA has led to unrestrained harassment of honest public officials. The section stated that “a public servant is said to commit the offence of criminal misconduct… if he, while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest”.


There was no element of mens rea, or ‘criminal intent’, required as a threshold to initiate prosecution. So, bona fide decisions were considered the same as mala fide ones, and treated the same. This will no longer be the case.

The fact of the matter is that in every major decision a bureaucrat takes, a ‘pecuniary advantage’ would be caused to someone, somewhere. Not taking into account decisions taken in good faith was shaking the very foundation of decision-making.

Several infrastructure sectors such as mines, coal and petroleum were getting held up because of an understandable lack of bold policymaking. Under the Amendment Bill now, the threshold of intent needs to be mala fide, or the intent to commit a crime. Criminal misconduct in the Amendment Bill has been unambiguously defined. There are now just two forms of criminal misconduct as opposed to the earlier five forms.

These now include misappropriation of property entrusted to a public servant, and possession of disproportionate assets/intentionally enriching oneself illicitly. There are other measures to streamline intent and liability, and to categorise what should be punishable and the process to be followed. The punishment for taking a bribe has been revised to a maximum of seven years.

Giving a bribe is now included as a crime, provided it was not coerced by the bribe-taker. If coerced, then the bribe-giver must inform the authorities within seven days of giving the bribe.

Under the new Section 17A, except when a public official is caught ‘redhanded', the police cannot begin a probe, without the approval of the relevant authority, of any public official. Earlier, this was limited to protecting joint secretaries and above. This universal inclusion provides a great deal of protection to honest officials irrespective of their ranks or levels.

Earlier, the sanction requirement only applied to serving officials. This has now been extended to prosecution for offences allegedly committed by former officials when in office. The decisions on request for sanctions are to be taken within three months and extendable by one additional month.

Also included for the first time is the liability for ‘commercial organisations’, which will be punished if any person associated with them, provides or promises to provide, undue advantage to a public official.

The new Section 18A also introduces a provision for special courts to confiscate and attach the property acquired through corrupt practices. To ensure speedy justice, guidelines will be set under the Amendment Bill to include a limit of resolving cases within two years. Time-bound decision-making is the best way for ease of justice, and GoI must be complimented for introducing such provisions in statutes, including the Insolvency and Bankruptcy Code (IBC).

The Supreme Court has held that no criminal case shall be registered against a high court judge or chief justice, or a judge of the Supreme Court unless GoI first ‘consults’ the Chief Justice of India and secures his assent. Public servants, too, must be protected from malicious harassment. Dynamic and honest officials, who are risk-takers for the greater good, must be encouraged, not restrained. No bureaucrat or public official should have to look over his or her shoulder for a bona fide decision.

The writer is CEO, NITI Aayog