INDIA Law and Practice Contributed by: Priyank Ladoia, Asif Ahmed, Pranav Tomar and Puneet Dhanoa, AZB & Partners
1. Legal Framework 1.1 International Conventions Corruption by its very nature is a complex crime. It entails: • giving and accepting bribes; • ingenious ways of providing a promise or gratification to a party; and • appropriating such bribes or proceeds and laundering such proceeds, which may also result in tax evasion or generation of “black money”, and may also be layered in foreign jurisdictions. Due to its complexity and cross-border implica - tions, India signed the United Nations Conven - tion against Corruption (the “Convention”) on 9 December 2005 and ratified it on 9 May 2011. • technical assistance/information exchange. The Convention also covers acts of corruption in the private sector. India is a member of the Financial Action Task Force, an international intergovernmental organisation formed on the initiative of the G7, based on mutual evaluation aimed at targeting international money launder - ing and terrorism funding. In addition to the foregoing, India is also a sig - natory to: • the United Nations Convention against Trans - national Organized Crime; The Convention covers: • preventative measures; • criminalisation; • enforcement; • international co-operation; • asset recovery; and
• the Convention on Mutual Administrative Assistance in Tax Matters; and • multiple mutual legal assistance treaties (MLATs), etc. 1.2 National Legislation While the general criminal law in India (the Indian Penal Code, 1860) already accounted for anti- bribery or anti-corruption provisions in its Chap - ter IX, titled “Of Offences By Or Relating To Pub - lic Servants”, this did not deal in detail with the offence of corruption. The Indian Penal Code, 1860 (IPC) has been repealed and replaced by Bharatiya Nyaya Sanhita, 2023 (BNS). Chapter XII of the BNS deals with offences by or relating to public servants and corresponds with Chapter IX of the IPC. In 1947, India enacted special legislation to deal with corruption more effectively; thus, the Pre - vention of Corruption Act, 1947 was passed. This was later repealed and replaced by the Prevention of Corruption Act, 1988 (PCA), which was enacted to consolidate and amend the laws relating to the prevention of corruption in India. Therefore, the PCA is the principal legislation for anti-corruption and anti-bribery laws in India. The complex nature of corruption and bribery offences could lead to various other offences, such as money laundering and tax evasion. Any money generated by committing offences under the PCA is considered proceeds of crime under the Prevention of Money Laundering Act, 2002 (PMLA), and such offences under the PCA are scheduled offences under the PMLA. Various offences under the PCA have been included as “scheduled offences” under the PMLA, meaning that both a bribe-giver and a bribe recipient will be liable for prosecution under the PCA, as well as for the offence of “money
214 CHAMBERS.COM
Powered by FlippingBook