Presentation on Anti Corruption Law and amendments.ppt

PPT on Anti corruption law India

1. Anti – Corruption LawAnti – Corruption Law
Roshan DalviRoshan Dalvi
Former Judge, High Court, Former Judge, High Court,
BombayBombay

2. The crime problem is, in part,
an overdue debt that the
country must pay for ignoring,
for decades, the conditions that
breed lawlessness.
- Earl Warren

3. HistoryHistory
IPC
•S.21
•S.161 to 165A
PC Act
•1947
•1952
•1964
•1988
We enact many laws that manufacture criminals,
And then a few that punish them.
- Benjamin R. Tucker

4. AmendmentsAmendments
•Definition of Public Servant – S. 21
•Offences – S. 7, 8, 9, 11 & 13
•Penalties enhanced – S. 10, 12, 14, 15
•Sanction – S. 19(1), (2)
–Purpose
–Final, if not challenged till trial
•Day-to-day trial – S. 4(4), 22(b), 22(c)
•Stay in Revision prohibited – S. 19(3)
•Bankers’ books – S. 18
Laws are generally found to be nets of such a texture,
as the little creep through, the great break through,
and the middle sized are alone entangled in.
– William Shenstone

5. FeaturesFeatures
•Court of Original Criminal Jurisdiction
–[A.R. Antulay v/s R.S. Nayak (AIR 1984 SC 718)]
–Remand
•Gratification
–Motive or reward
–Favour or disfavour
–In Cash or kind
–For doing or not doing
–For service or dis-service
Provisions which are rigid in theory,
Are frigid in practice

6. Features Features (Contd….)(Contd….)
•Attachment of properties - S.102/105C to105J Cr.PC
–Moveable, immoveable, tangible, intangible
–e.g. flats, land, bank accounts, bank lockers, shares
–Sealing, seizure
–e.g. premises, books of accounts, documents
•Freezing of bank accounts – S. 18 PC Act
–Bankers’ Book Evidence Act
–1999 (7) SCC 685 State of Maharashtra vs. Tapan Neogi
•Criminal Law (Amendment) Ordinance, 1944
–Including Ad Interim attachment (S.4)
•Presumption – S.114(a) Indian Evidence Act
•Res Ipsa Loquiter ?

7. IllustrationsIllustrations
•The U.S.A. PATRIOT Act, 2001
–Made 52 amendments to BSA, 1970
–Within 43 days of 9/11
–Signed by President Bush on 10/26
•Criminal Justice Act, 1987 – U.K.
–Set up SFO for serious economic crimes
•FIRe

8. Over-reaching the LawOver-reaching the Law
•ATMs
•HIV+ persons
•Disposing off properties
•Mala fide transfers
Against one law-maker,
there are a thousand law-breakers!

9. Enforcing the LawEnforcing the Law
Advanced Electronic Gadgets in Investigation
•Scientific evidence to have enhanced probative value
–Taping of conversation
•Sample telephone voice to be collected post arrest / trap
•Care & caution in sealing tapes
–Video recording of conversations / interrogations
•Establish identity of the voice
•Exhibit truthfulness of confessions, if any
–Forensic Computing
•Seizure of computers and securing data
–Optical scanning techniques
–Crime mapping

10. Enforcing the Law Enforcing the Law (Contd…)(Contd…)
•Commercial sense
–e.g. internet piracy, post office fraud
–Teamwork with professionals, e.g. solicitors,
accountants, bankers, stock brokers, media,
management experts, investment bankers,
insurers, capital market regulators, financial
experts, economists, IT experts, SEBI officers.
–Police/prosecutor integration
•Information management
•Private detectives / investigative agencies
Attitude is a small thing that makes a big difference

11. Court ClimateCourt Climate
•Prioritising matters
•Streamlining court procedures
–1
st
notice, draft charge
•Weeding out redundant procedures
–No evidence for certain documents
•Mullah / Man
•One trial per day
•Granting costs for each adjournment
•Teamwork with the police

12. Court Climate Court Climate (Contd…)(Contd…)
•Presumption
•Adverse inference
•Sec. 313(1)(a) Cr.PC
•Proof beyond doubt
•Sentencing policy
•Court to consider the ground realities of
modern day crimes
•On conviction:
–Definite deterrent sentence
–Heavy fine / compensation
Successful people don’t do different things;
They do things differently.

13. Legislative amendments requiredLegislative amendments required
Easy Enactment for Effective Enforcement
•Inclusive definitions
•Inclusion of family members/relatives
•Sanction
Mala fide transfers
•Proof of documents
–Documents seized from accused admissible without
further proof
–Commercial Documents Evidence Act to be amended
for presumption of documents
•Disclosure of defence
•Examination of defendant/accused
•Apprehension of transfer
Law is
what
Law does

14. Desired ReformsDesired Reforms
•Summary procedure in some cases
•Fast track Anti-corruption courts
•Plea bargaining
–Like voluntary disclosure scheme
–High Interest rate
–Extent of penalty / fine / compensation
•Special courts, PPs,& IOs
•One right of appeal and/or revision
•Corporate Criminal Liability concept
–Corporate mens rea (based on negligence and
recklessness)
–Corporate death penalty

15. Desired Reforms Desired Reforms (Contd….)(Contd….)
•Presumption that unexplained acquisition
of money is a part of the funds alleged to
be defrauded
•Presumption against acquisitions by family
members
•Harmonising S.19 of the PC Act with
S.319 of the Cr.PC
•Whistle blowers to be encouraged and
rewarded
•Victim and witness compensation and
protection schemes

16. Desired Reforms Desired Reforms (Contd….)(Contd….)
•Overcome problem of providing trap
money by complainant
•If complainant is found trustworthy, even if
Panch turns hostile, conviction sustains
•Media to publicise convictions and
punishments
•Mandatory minimum punishment
•Confiscation / forfeiture by courts and
restoration to rightful owners

17. •Under-cover operations, media role
•Immediate suspension
•Benami Transactions of Govt. servants
•Market value of properties
•Privatisation, Decentralisation, market
economy
•Transparency of Govt. contracts
•No need for notification, consent to
register case
Desired Reforms Desired Reforms (Contd….)(Contd….)

18. •Sanction
–Deemed sanction, if not refused
–Deemed sanction if not given within 3 months
–Not to be challenged once given ( only
filteration process)
–No sanction for trap cases or DA cases
–No evidence of sanctioning authority
–NO STAY
The biggest malaiseThe biggest malaise

19. Preventive AspectsPreventive Aspects
•Govt. Contracts [S.13(1)(d) of the PC Act]
–All tenders on the website
–Suppliers registered through internet
–Electronic payments
–Common portal for all sites
–Adequate publicity for contracts