Articles

Anti-corruption & Bribery in India

In July 2018 the Prevention of Corruption (Amendment) Act 2018 was passed by Parliament, which amended and brought about significant changes to the extant Prevention of Corruption Act 1988. Among other changes, the Amendment Act has made bribe giving a specific offence and has introduced the concept of corporate criminal liability for acts of bribery. Corporates may claim a defence if it can be proven that adequate procedures were in place to prevent persons associated with it from undertaking anything which may be an offence under the Prevention of Corruption Act. Such procedures must comply with guidelines, which are yet to be prescribed by the government.

The Amendment Act has introduced a new provision wherein police officers now require prior approval from the relevant government authority to investigate an offence alleged to have been committed by a public servant under the Prevention of Corruption Act. This provision has been challenged in the Supreme Court of India and awaits judgment.

In the wake of numerous scams being unearthed in India over the past decade, enforcement agencies have also been proactive in terms of monitoring compliance under relevant anti-corruption and bribery laws and taking action against violations.

In 2016 the government announced demonetisation of Rs500 and Rs1000 bank notes in its attempt to combat unethical practices such as hoarding black money outside the formal economic system, tax evasion and using illicit or counterfeit cash to fund illegal activities. Consequently, on basis of information received from banks, the tax authorities and other anti-corruption bodies have identified suspicious persons and entities and initiated action against them.

In 2017 the Ministry of Corporate Affairs voluntarily struck off 224,000 shell companies and imposed restrictions on the usage of their bank accounts and transference of company property. Action was taken to disqualify directors who failed to comply with specific requirements under the Companies Act 2013. The ministry also announced that if any director or other authorised signatory of a struck-off company tried to siphon off money from the company’s bank account, he or she will be punished with a prison term of between six months and 10 years, and where the fraud involved public interest, the minimum prison term will be at least three years and may also involve a fine of up to three times the amount involved. The prime minister's office has created a special task force to oversee the drive against such defaulting companies with the help of various enforcement agencies. Further, in 2018 an ordinance to the Companies Act 2013 was promulgated reintroducing the requirement to declare the commencement of business for newly incorporated companies, which may restrict the opening of shell companies.

The Central Vigilance Commission (CVC) has also taken certain proactive actions recently, such as advising all central government departments on quicker disposal of pending corruption cases. The CVC has an online complaint management system where individuals can register complaints in this regard.

The Serious Fraud Investigation Office (the investigative arm of the Ministry of Corporate Affairs) has increased the pace of its investigations over the past couple of years. As per the information available on its website, it has completed investigation in 312 cases to date, 87 of which were completed during 2016 to 2017.Moreover, the Supreme Court has expanded the ambit of the definition of ‘public servant’ (under the Prevention of Corruption Act 1988) to include all officials of private banks, as their duties are public in nature (Central Bureau of Investigation, Bank Securities and Fraud Cell v Ramesh Gelli, 23 February  2016) thereby bringing them under the purview of anti-corruption laws.

Legislative activity

Are there plans for any changes to the law in this area?

In 2018 Parliament passed the Prevention of Corruption (Amendment) Act introducing changes to the existing anti-corruption law. Significant changes include:

• the inclusion of bribe giving as a specific offence;
• that commercial organisations can be liable for bribe giving;
• the introduction of a fixed timeline of two years for the conclusion of a trial – extendable up to four years;
• the removal of the protection given to bribe givers who appear as witnesses; and
• the introduction of stricter punishments for perpetrators of bribery.

In addition, Parliament has also passed the following laws in recent years:

• the Lokpal and Lokayukta (Amendment) Act 2016, which primarily requires public servants to declare their assets and liabilities and those of their spouses and dependent children;
• the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act 2015, which penalises the concealment of foreign income and assets and any related tax evasion;
• the Benami Transactions (Prohibition) Amendment Act 2016, which empowers the competent authorities to attach and confiscate benami properties (ie, any property which is held by or transferred to or for benefit of a person, and the consideration for which has been provided or paid by another person);
• the Companies (Amendment) Act 2017, by virtue of which the existing penalty provisions for the commission of corporate fraud have been modified. If any person is found guilty of fraud involving an amount less than Rs1 million or 1% of the turnover of the company (whichever is lower) and which does not involve public interest, such person will be punishable with a maximum five-year prison term, a fine of up to Rs2.5 million or both. For other instances of fraud, the penalty remains the same (ie, six months to 10 years’ imprisonment and a fine of up to three times the amount involved in the offence); and
• the Whistleblowers Protection (Amendment) Bill 2015, which aims to prohibit the reporting of corruption-related disclosures (by a whistleblower) if it falls under any of the 10 prescribed categories. However, the government has indicated that the Whistleblowers Protection Act may require further amendments before it is brought into effect.

Legal framework

Authorities

Which authorities are responsible for investigating bribery and corruption in your jurisdiction?

The primary regulatory authorities responsible for monitoring and investigating corruption and bribery in India are as follows:

• The Central Vigilance Commission (CVC) is the nodal statutory body that supervises investigation of corruption (under the Prevention of Corruption Act 1988 and the Penal Code 1860) in central government departments, government companies and local government bodies, and among public servants. The CVC can refer cases to either the central vigilance officer of the relevant government department or the Central Bureau of Investigation (CBI) for investigation.
• The CBI and the Anti-corruption Bureau (ACB) are also investigative authorities for corruption under the Prevention of Corruption Act 1988 and the Penal Code 1860. While the CBI’s jurisdiction covers the central government and union territories, the ACB investigates cases within the states.
• The Serious Fraud Investigation Office (SFIO) is set up under the Ministry of Corporate Affairs and investigates the affairs of companies based on an order from the central government:
• on receipt of an application from the competent regulatory authority or government department;
• at the request of the concerned company; or
• in cases of public interest on a suo moto basis (ie, of its own accord).

If a matter is handled by the SFIO, no other investigatory agency is entitled to proceed with a parallel investigation. The Ministry of Corporate Affairs has recently conferred the power of arrest (of any person, including those associated with foreign companies) on the SFIO on the grounds of commission of the offence of corporate fraud under the Companies Act 2013.

• The Lokpal, which comprises a chairperson and up to eight members, is a nodal ombudsman authority which investigates and prosecutes cases of corruption involving:
• the prime minister;
• the council of ministers;
• members of Parliament;
• public servants and other central government employees, other than members of armed forces;
• employees of companies funded or controlled by the central government; and
• private persons who have abetted in the commission of relevant offences.

The Lokpal also has the power of superintendence over the CBI, if it refers any case to the CBI. Members of the first Lokpal office have yet to be appointed. Lokayuktas are state-level counterparts of the Lokpal, and certain Indian states have already appointed officers for this position.

• The Enforcement Directorate is established under the Ministry of Finance to investigate and prosecute cases relating to the Prevention of Money Laundering Act 2002 and the Foreign Exchange Management Act 1999. The Enforcement Directorate also cooperates with foreign countries in matters relating to money laundering and restitution of assets in accordance with their respective local laws.
• The Income Tax department has been appointed as the authority in cases pertaining to the Benami Transactions (Prohibition) Act, by virtue of which it can attach and confiscate benami properties.

Domestic law

What are the key legislative and regulatory provisions relating to bribery and corruption in your jurisdiction?

The key laws pertaining to corruption and bribery in India are as follows:

• The Prevention of Corruption Act 1988 as amended from time to time, is the principal anti-corruption law. It penalises offences committed by public servants in relation to the acceptance or attempted acceptance of any form of illegal gratification (ie, anything of value other than a legal entitlement).
• The act of bribe giving is an offence under the Prevention of Corruption Act and commercial organisations can be held liable for the same if any person associated with them gives or promises to give any undue advantage to a public servant with the aim of receiving or retaining  business or an advantage in the conduct of business. Commercial organisations can claim defence if they can prove that they had adequate procedures in place to prevent such acts by any person associated with them. Such procedures must comply with the guidelines to be prescribed by the government.
• The Penal Code 1860 is the penal law of India and sets out provisions which are interpreted to cover bribery and fraud matters, including those committed in the private sector. Its provisions include offences relating to cheating and dishonestly inducing delivery of property and criminal breach of trust.
• The Companies Act 2013 contains certain provisions to prevent corruption and fraud in the corporate sector, including:
• the duty of statutory auditors to disclose any instances of fraud (which covers instances of corruption and bribery) committed by company employees;
• increased penalties for fraud offences (up to 10 years of imprisonment and a fine of up to three times the amount involved in the relevant fraudulent transaction);
• vesting increased powers (eg, power to arrest) with the SFIO;
• provisions for the establishment of vigilance mechanisms and audit committees; and
• increased responsibilities of independent directors.  

• The Whistleblowers Protection Act 2011 is primarily intended to protect whistleblowers with respect to disclosure of acts of corruption, wilful misuse of power, wilful misuse of discretion or the commission of attempted commission of a criminal offence by a public servant. While the Whistleblowers Protection Act has yet to come into force, the government has clarified that it intends to amend the act further before bringing it into effect.
• The Lokpal and Lokayuktas Act 2013 establishes the offices of the nodal ombudsman for the central and state governments (Lokpal and Lokayuktas, respectively) and accords relevant powers to these bodies to unearth and investigate cases of corruption in the public sector in India (eg, the authority to provisionally attach property pending proceeding).
• The Foreign Contribution (Regulation) Act 2010 regulates the acceptance and use of foreign contributions and hospitality by corporate entities and individuals. Receipt of foreign contributions requires prior registration with or approval of the Ministry of Home Affairs. In the absence of such registration or approval, receipt of foreign contributions may be considered illegal and punishable.
• The Prevention of Money Laundering Act 2002 aims to prevent instances of money laundering and prohibit use of the proceeds of crime in India. It prescribes strict penalties for violation of its provisions, including imprisonment of up to 10 years and the attachment or confiscation of tainted property.

The scope of application of the primary anti-corruption law is limited to the public and government sectors, and does not cover extraterritorial activity (ie, instances of illegal gratification and payments made to foreign officials or persons employed by public international organisations).

However, the Institute of Company Secretaries of India formulated the Corporate Anti-bribery Code in 2017, which outlines a systematic mechanism that could be voluntarily adopted by companies to prevent bribery in both public and private sectors. The code also prohibits bribery of foreign public officials to obtain or retain business or receive an improper advantage in business (which is otherwise not specifically addressed under the anti-corruption laws).

International conventions

What international anti-corruption conventions apply in your jurisdiction?

India is a signatory to the United Nations Convention against Corruption, as ratified in 2011. It is also a member of the G20 Anti-corruption Action Group.

Further, the guidelines and draft clauses of the International Chamber of Commerce hold persuasive value in the country.

Specific offences and restrictions

Offences

What are the key corruption and bribery offences in your jurisdiction?

The following actions qualify as key corruption and bribery offences under Indian law:

• a public servant taking illegal gratification as a reward or motive for undertaking (or forbearing to undertake) an official act, or for showing (or forbearing to show) any favour or disfavour to any person in the exercise of his or her official functions, or for rendering any service or disservice to any person;
• an individual taking illegal gratification to influence a public servant for the abovementioned actions;
• an individual taking illegal gratification to exercise personal influence over a public servant, to induce such public servant for the abovementioned actions;
• a public servant obtaining a valuable thing without consideration from a person in connection with business dealings with such person;
• a public servant dishonestly or fraudulently misappropriating or converting for personal use any property entrusted to him or her or under his or her control, or any public servant allowing another person to do as such;
• a public servant obtaining a valuable thing or monetary advantage for himself or herself or any other person by corruption, abuse of his or her position of authority or any other illegal means;
• a public servant holding property or resources disproportionate to his or her known sources of income;
• an individual giving or promising to give another person an undue advantage with the intention of inducing a public servant to perform a public duty improperly or to induce a public servant to perform a public duty improperly; and
• any person associated with a commercial organisation that gives or promises to give an undue advantage to a public servant.

Actions such as the acceptance of foreign contributions without prior government approval or registration, money laundering, concealment of foreign income and assets, dealing with benami property and committing fraudulent acts against a company are also punishable.

Where an individual has been compelled to give a bribe, this act may be considered to not contravene the law if the matter is reported to the law enforcement authority or investigative agency within seven days. 

Hospitality restrictions

Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?

The government has formulated guidelines and monetary thresholds for certain public servants regarding the acceptance of gifts, business courtesies and hospitality. The key guidelines are contained in the Central Civil Services (Conduct) Rules 1964 and the All India Services (Conduct) Rules 1968. These rules must be followed by public servants employed in specified government services. Similar conduct rules have been introduced separately by state governments and specific government departments (eg, the railways and defence services) and apply to their respective employees.

As a general rule, members of the government services should avoid accepting lavish or frequent hospitality from persons having official dealings with them, or from industrial or commercial firms beyond the specified thresholds. The guidelines also provide that a public servant should neither accept any gift nor permit any member of his or her family or any other person acting on his or her behalf to do the same. The term ‘gifts’ includes:

• free transport;
• free boarding;
• free lodging; and
• any other service or pecuniary advantage provided by a person other than a near relative or personal friend who has no official dealings with the public servant.

However, the definition of ‘gift’ does not specifically include casual meals, casual lifts or other similar social hospitality.

No such rules are prescribed for dealings between private parties. However, to avoid any potential liability, most companies internally determine their policies and monetary thresholds in connection with the offer and acceptance of gifts, business courtesies and hospitality, particularly during religious and festive occasions.

Facilitation payments

What are the rules relating to facilitation payments?

There is no exception that allows making facilitation payments to public servants in India.

Liability

Scope of liability

Can both individuals and companies be held liable under anti-corruption rules in your jurisdiction?

Yes, both individuals and companies may be held liable under the anti-corruption laws. The Prevention of Corruption Act 1988, as amended in 2018, now provides for specific criminal liability for commercial organisations if any person associated with them gives or promises to give an undue advantage to a public servant with the aim of receiving or retaining business for said organisation or to an advantage in the conduct of business.

Can agents or facilitating parties be held liable for bribery offences and if so, under what circumstances?

Yes, agents and facilitating parties may be held liable for bribery offences. A person is said to be associated with a commercial organisation if they perform services for or on behalf of a commercial organisation. If any person associated with such a commercial organisation gives or promises to give any undue advantage to a public servant with the aim of receiving or retaining business for said commercial organisation or an advantage in the conduct of business, the commercial organisation will be liable for the act of bribery. The capacity in which said person performs services for or on behalf of the commercial organisation does not matter, irrespective of whether they are an employee, agent or subsidiary of said commercial organisation.

Whether the person performs services for or on behalf of the commercial organisation is to be determined by reference to all relevant circumstances and not merely by reference to the nature of the relationship between said person and the commercial organisation. Therefore, both the individual agent or facilitating party and the commercial organisation that such agent or party is acting on behalf of will be liable for the bribery.

Foreign companies

Can foreign companies be prosecuted for corruption in your jurisdiction?

The Prevention of Corruption Act 1988 extends to the whole of India (other than the state of Jammu and Kashmir) and to all Indian citizens, irrespective of their geographical location. Thus, by implication it may also apply to foreign companies doing business in the Indian territory.

The Lokpal and Lokayuktas Act 2013 also applies to the whole of India, thereby granting powers to the Lokpal to investigate and prosecute Prevention of Corruption Act offences by a foreign company doing business in the Indian territory.

Whistleblowing and self-reporting

Whistleblowing

Are whistleblowers protected in your jurisdiction?

The Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations 2015 require companies listed on a recognised stock exchange in India to devise an effective whistleblowing mechanism that enables stakeholders – including individual employees and their representative bodies – to freely communicate their concerns about illegal or unethical practices in such companies.

The Whistleblowers Protection Act 2011 establishes protective measures for whistleblowers (ie, persons making a public interest disclosure relating to an act of corruption, wilful misuse of power, wilful misuse of discretion or a criminal offence committed or attempted by a public servant). While the whistleblower must disclose their identity when making the disclosure, the relevant authorities are statutorily obliged to ensure the whistleblower’s anonymity and protection from victimisation thereafter. However, while the Whistleblowers Protection Act has been passed, it has not yet been brought into effect by the government. A recent clarification by the Ministry of Personnel, Public Grievances and Pensions indicates that the law may require further amendments before being introduced.

No legal protection is afforded to whistleblowers who make disclosures in connection with the private sector, although most companies provide protection to such whistleblowers through internal policies and programmes.

The government has authorised the Central Vigilance Commission (CVC) as the designated agency to receive and act on written complaints for the disclosure of allegations of corruption or misuse of office by employees of:

• the central government;
• any corporation established under a central act; and
• government companies, societies or local authorities owned or controlled by the central government.

While the CVC does not accept anonymous complaints, it must keep the identity of complainants confidential and if complainants require witness protection, this may also be provided.

Self-reporting

Is it common for leniency to be shown to organisations that self-report and/or cooperate with authorities? If so, what process must be followed?

The Prevention of Corruption Act 1988 allows for certain defences which can be taken by organisations in certain situations.

Where an individual has been compelled to give a bribe it may be considered not to contravene the law if the matter is reported to the law enforcement authorities or relevant investigative agency within seven days.

Commercial organisations can claim defence if they can prove that they had adequate procedures in place to prevent such acts by any person associated with them. Such procedures must comply with the guidelines to be prescribed by the government.

Dispute resolution and risk management

Pre-court settlements

Is it possible for anti-corruption cases to be settled before trial by means of plea bargaining or settlement agreements?

There are no specific provisions to settle before trial by means of plea bargaining or settlement agreements and the offences of corruption and bribery are typically non-compoundable under Indian criminal law.

Defences

Are any types of payment procedure exempt from liability under the corruption regulations in your jurisdiction?

The Indian anti-corruption laws contain no specific payment-related exemptions. However, if the amount involved does not breach the monetary thresholds prescribed under the relevant conduct rules for public servants, this can be used as a defence against allegations of bribery. Although, in such cases the intent behind offering or accepting gifts (irrespective of the gift’s monetary value) may also be relevant.

What other defences are available and who can qualify?

Where an individual has been compelled to give a bribe it may be considered not to contravene the law if the matter is reported to the law enforcement authorities or relevant investigative agency within seven days. Commercial organisations can claim defence if they can prove that they had adequate procedures in place to prevent such acts by any person associated with them. Such procedures must comply with the guidelines to be prescribed by the government.

Further, persons in charge of a company or responsible for the conduct of its business (eg, directors, managers, secretaries or other officers) may avoid liability for offences committed by the company if it is proven that such individuals had no knowledge of the offence or exercised all due diligence to prevent such offences.

Risk management

What compliance procedures and policies can a company put in place to assist in the creation of safe harbours?

In 2018 India ranked 81st out of 180 countries in the Corruption Perception Index published by Transparency International. Further, the legal framework for anti-corruption compliance in India does not yet address all relevant issues. Therefore, companies generally adopt their own procedures and policies to avoid any potential liability.

However, the Institute of Company Secretaries of India has formulated the Corporate Anti-bribery Code, which outlines a systematic mechanism that could be voluntarily adopted by companies to prevent bribery in both public and private sectors. The code also prohibits bribery of foreign public officials to obtain or retain business or receive an improper advantage in business (which is otherwise not specifically addressed under the anti-corruption laws).

While the specific procedures implemented by companies to mitigate such risks may vary, the following basic standard practices can be adopted to ensure compliance with the relevant anti-corruption laws:

• implementing a robust code of conduct that includes policies governing the exchange of gifts, business courtesies and hospitality, whistle-blower protection mechanisms and provisions covering compliance with relevant anti-corruption laws (including foreign laws with extraterritorial effect, such as the US Foreign Corrupt Practices Act 1977 and the UK Bribery Act 2010);
• revising the aforesaid policies so that they conform with the rules (to be) notified by the government under the Prevention of Corruption Act 2018;
• implementing effective, up-to-date book-keeping and record maintenance systems to prevent any illegal gratification from being routed through the company’s accounts;
• accurate and complete preparation and maintenance of all accounts, invoices and other documents relating to payments made by the company;
• conducting appropriate due diligence in relation to third-party dealings (eg, with agents, consultants, advisers and intermediaries) in order to reduce the risk of vicarious liability;
• ensure written agreements with third parties are executed, which clearly identify the work to be performed along with compensation and appropriate language on anti-corruption compliance;
• regular communications and documented training on anti-corruption, bribery and ethics at all levels of the company;
• appropriate oversight and monitoring of anti-corruption policies and programmes; and

• implementing appropriate disciplinary procedures to address violations of anti-corruption laws and the company’s code of conduct.

Record keeping and reporting

Record keeping and accounting

What legislation governs the requirements for record keeping and accounting in your jurisdiction?

There is no specific legislation governing record keeping, but it is covered under various other laws that may apply to certain companies. For instance, the Companies Act 2013 requires Indian companies to maintain and preserve the books of accounts at their registered office for at least eight financial years preceding the present financial year, together with all vouchers relevant to any entry in such books of accounts. The term ‘books of accounts’ has been broadly defined to include records of items including sums of money received and expended by the company and sales and purchases of goods and services by the company.

The Companies Act also sets out the accounting method for company financial records, which must typically be undertaken on an accrual basis and pursuant to the double-entry bookkeeping system.

Further, persons (including companies) registered under the Foreign Contribution (Regulation) Act 2010 must maintain an account of any foreign contribution received, along with a record of the manner in which such contribution has been used.

What are the requirements for record keeping?

The Companies Act requires companies to maintain and preserve their books of accounts along with other corporate documents for at least eight financial years preceding the present financial year. Similarly, the Securities Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations 2015 require listed companies to have a two-pronged policy for the preservation of relevant documents:

• documents to be preserved permanently; and
• documents to be preserved for eight years after completion of the relevant transaction.

In addition, records relating to income tax and goods and services tax must be retained for seven years and six years, respectively.

Persons (including companies) registered under the Foreign Contribution (Regulation Act) must maintain an account of any foreign contribution received, along with a record of the manner in which such contribution has been used.

Reporting

What are the requirements for companies regarding disclosure of potential violations of anti-corruption regulations?

There is no specific legislation in India that expressly requires companies to disclose potential violations of anti-corruption laws within their organisation.

However, the Companies Act stipulates that if any statutory auditor of a company, during the performance of his or her professional duties, has reason to believe that fraud is being or has been committed, he or she must report the potential offence to the central government if the sum involved is Rs10 million or more. Where the involved amount is less than Rs10 million, the auditor must report the matter to the company’s board of directors or audit committee (as applicable), which must then disclose the details of the offence in the director’s report (to be prepared on an annual basis).

Separately, the Securities Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations 2015 require listed companies to make disclosures relating to fraud and defaults committed by the company or its promoter, key managerial personnel, directors or employees, as applicable, in a prescribed manner.

Penalties

Individuals

What penalties are available to the courts for violations of corruption laws by individuals?

The anti-corruption laws prescribe various penalties.

For instance, the Prevention of Corruption Act 1988 sets out that public servants found guilty of the prescribed offences will be subject to a prison term of between three and seven years and a fine to be set by the court.

Where an offence is committed by a commercial organisation and such offence is proven in court to have been committed with the consent or connivance of a director, manager, secretary or other officer, such individual will be subject to a prison term of between three and seven years as well as a fine. The commercial organisation will be punishable with a fine.

If any person convicted under the Prevention of Corruption Act subsequently commits an offence under the act, they will be subject to a prison term of between five and 10 years as well as a fine.

Similarly, the commission of fraud under the Companies Act 2013 involving an amount exceeding Rs1 million or 1% of the company turnover (whichever is higher) or which involves public interest, is subject to a prison term between six months and 10 years and a fine of up to three times the amount involved in the offence.

Money laundering, as defined in the Prevention of Money Laundering Act 2002, is subject to a prison term of between three and 10 years and a fine or up to Rs500,000.

Commission of relevant offences under the Penal Code is punishable with three to seven years’ imprisonment.

Other penalties include confiscation or attachment of the accused’s property, or debarment or blacklisting from dealing with government authorities (in perpetuity or for a specific duration).

Companies or organisations

What penalties are available to the courts for violations of corruption laws by companies or organisations?

Where an offence under the Prevention of Corruption Act 1988 is committed by a commercial organisation and such offence is proved in court to have been committed with the consent or connivance of a director, manager, secretary or other officer, such individual will be subject to a prison term of between three and seven years and also subject to a fine. The commercial organisation will be punishable with a fine.