Accepting or giving bribe by foreign public officials punishable with jail term up to 7 years: 258th Report, Law Commission of India

Accepting or giving bribe by foreign public officials punishable with jail term up to 7 years: 258th Report, Law Commission of India

Law Commission of India has released its 258th Report titled “Prevention of Bribery of Foreign Public Officials and Officials of Public International Organizations – A Study and Proposed Amendments”.

The report makes accepting or giving bribe by foreign public officials a criminal offence entailing a jail term of up to seven years and makes active as well as passive bribery punishable. A foreign public official or an official of a public international organization accused of passive bribery would be prosecuted in India only if the offence is committed wholly or partly in India. This would be further subject to the waiver of diplomatic immunities by the concerned foreign country or public international organization.

The Commission has undertaken extensive deliberations, discussions and in-depth study of the draft bill and the issues relating to it to give shape to the Report.

It has undertaken a clause by clause critical analysis of the Bill, besides analyzing bribery laws in other countries such as Australia, UK, US, Austria, Canada and Switzerland.

Of the countries surveyed in the report, no other country, besides Malaysia and Switzerland has passed a law pertaining to the offence of passive bribery. Even the relevant laws in Malaysia and Switzerland do not contain any specific provision to prosecute foreign public officials or officials of public international organizations when the offence has taken place outside their country.

Attempt to take or give bribes as well as abetment of the commission of such offences has also been made punishable. Abetment has been made punishable with jail term up to seven years and attempt with jail term up to three years.

The draft makes giving of bribes to a foreign public official or official of a public international organization punishable. However, an exception to the operation of this clause is carved out for commercial organizations if the expenses were reasonable and related to promotion, performance of a contract or the organization had adequate procedures to prevent persons from engaging in such conduct.

As per the report, the key requirement to establish the offence of bribery is the existence of undue advantage. The Bill will have extra-territorial application and will thus require agreements with foreign countries for enforcement.

It has also recommended that the entire scheme as suggested in its 254th Report in connection with the Prevention of Corruption (Amendment) Bill, 2013, should be incorporated into the 2015 Bill as well. You may read more about the 254th Report here.

The Prevention of Bribery of Foreign Public Officials and Officials of Public International Organizations Bill, covering requirements of Article 6 of the United Nations Convention Against Corruption, was introduced in the 15th Lok Sabha and was referred to the Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law & Justice. On expiry of the term of the 15th Lok Sabha, the Bill lapsed and now, the Department of Personnel and Training proposes to introduce a fresh Bill. On the advice of the Prime Minister’s Office, the proposed Bill was referred to Law Commission of India in July this year, to submit its views/recommendations.

Read the Law Commission of India 258th report here.