Curbing Corruption: Doable or Dreamlike? India Pushes to Criminalize Bribery of Foreign Officials

Jason S. Levin, Vol. 37 Associate Editor

August 2015 marked the release of India’s Twentieth Law Commission report, wherein Indian officials proposed sweeping changes to the country’s policy toward bribery.[1] India, the second most populous nation and the largest democracy in the world,[2] is no stranger to the drawbacks of a society rife with corruption.[3] As S. K. Ghosh, Former Inspector General of Odisha Police, noted in his seminal work in 1971, “[c]orruption is tracking blood on [India’s] sacred heritage, impeding the progress of [India’s] society, and jeopardizing [India’s] hope for the future.”[4]

The proposition of India’s anti-bribery bill is not their first iteration, as it is the culmination of a previous bill proposed in 2011 and vast research on anti-bribery laws throughout myriad nations.[5] Currently, India, unlike the United States,[6] lacks a domestic law that criminalizes the aforementioned acts.[7] However, as a signatory to the United Nations Convention Against Corruption, 2003 (“UNCAC”), India is required to “enact a law that penali[z]es bribery of foreign officials as well as officials of public international organizations.”[8] Consonant with the three-pronged mission of the UNCAC,[9] it appears that India is now, perhaps more than ever, with Narendra Modi at the helm, ready to commit to altering their systemic issue of bribery.[10]

However, despite the push for this bill to become domestic law, the question lingers as to whether India’s Lok Sabha (the lower house of India’s Bicameral-Parliament) will readily implement it; and, if so, whether it will produce the desired effects. In accessing an answer to this issue, it is critical to briefly examine India’s current legal framework for combating corruption and to understand the basic premise of the UNCAC. Further, it is prudent to examine the possible roadblocks India’s bill proposal will have both domestically and for other signatories.

Although India possesses several domestic statutes that combat various forms of corruption,[11] their primary method of enforcement is the Prevention of Corruption Act of 1988 (“PCA”).[12] In short, the PCA “penalizes the perpetual acceptance of prohibited bribes and misappropriation of public funds, and potentially penalizes an official for possessing funds or property that are ‘disproportionate to his known sources of income’ for which he cannot properly account.”[13] The PCA is undoubtedly expansive in nature. However, it does not meet the UNCAC’s requirements, as it does not specifically target the bribery of foreign officials.[14] While the UNCAC is an attempt to alter the landscape of corruption throughout the world, it is for now a localized effort aimed at shaping its signatories’ domestic laws.[15]

Despite the ambitious goals of the UNCAC, India’s current regime has long been criticized for its inability to enforce anti-corruption measures.[16] Further, despite the multitude of guidelines found in the UNCAC, it does not speak to methodologies for signatories to enforce their newly proposed anti-corruption policies.[17] Perhaps even more troublesome is the fact that, of the 140 signatories, several are developing nations with less-than-adequate resources to provide for full-scale enforcement of such a grandiose undertaking.[18] Although Indian officials appear optimistic in their report, especially considering the proposal of several revisions from its last iteration,[19] which lapsed in the previous parliamentary session, it does not alter their ability to enforce this anti-corruption policy to an unprecedented level.

In considering the policy motives for India’s re-introduction of this bill,[20] it appears that there is much left hanging in the balance, as cultural shifts, although often necessary, are slow to take effect. Though the bill’s fate rests in the hands of the Lok Sabha with its impending floor debate, it is possible that India is ready to embrace Narenda Modi’s grand vision and truly combat corruption.[21]


[1] 20th Report of the Law Commission of India, Report on Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations—A Study and Proposed Amendments (2015).

[2] The World Bank, http://data.worldbank.org/country/india (last visited Sept. 20, 2015).

[3] See Corruption Perceptions Index (2014), Transparency Int’l, https://www.transparency.org/cpi2014/results (last visited Sept. 20, 2015) (highlighting that India is ranked 85th out of 175 countries).

[4] S. K. Ghosh, Laws Relating to Bribery and Corruption in India X (1971).

[5] See 20th Report of the Law Commission of India, Report on Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations—A Study and Proposed Amendments (2015) at 4; see also TNN, 7-Year Jail for Bribing Foreign Officials?, The Times of India (Aug. 28, 2015, 5:18 AM), http://timesofindia.indiatimes.com/india/7-year-jail-for-bribing-foreign-officials/articleshow/48704451.cms (noting the culmination of the 15th Lok Sabha).

[6] See Foreign Corrupt Practices Act, Pub. L. No. 95-213, 91 Stat. 1464 (1977) (codified at 15 U.S.C. §§ 78a, 78m, 78dd-1, 78dd-2, 78ff (1988)); see also U.S. Mission to the Org. for Econ. Cooperation and Dev. http://usoecd.usmission.gov/mission/combating-corruption.html (last visited Sept. 27, 2015) (highlighting the United States’ efforts to combat corruption, particularly the issue of international bribery).

[7] See 20th Report of the Law Commission of India, Report on Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations—A Study and Proposed Amendments (2015) at 1.

[8] Id.

[9] See G.A. Res. 58/422, at 7 (Oct. 31, 2003) (stating the mission of the UNCAC is:

(a) To promote and strengthen measures to prevent and combat corruption more efficiently and effectively; (b) To promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery; (c) To promote integrity, accountability and proper management of public affairs and public property).

[10] Liz Mathew & Neha Sethi, Narenda Modi’s 10-Point Plan for India, Live Mint (May 31, 2014, 12:34 AM), http://www.livemint.com/Politics/PWOXZpZVucoOD4FdQK6noO/Narendra-Modis-10point-plan-for-India.html

[11] See Government of India, Ministry of Finance, Department of Revenue, http://www.dor.gov.in/overview_pml (last visited Sept. 20, 2015) (expounding on the Prevention of Money Laundering Act of 2002).

[12] The Prevention of Corruption Act, No. 49 of 1988, Pen. Code (India) § 7 [hereinafter PCA].

[13] Elisa Solomon, Targeting Corruption in India: How India Can Bolster Its Domestic Anticorruption Efforts Using Principles of the FCPA and the U.K. Bribery Act, 34 U. Pa. J. Int’l L. 902, 915 (2013) (citation omitted).

[14] 20th Report of the Law Commission of India, Report on Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations—A Study and Proposed Amendments (2015) at 1-2; see also Elisa Solomon, Targeting Corruption in India: How India Can Bolster Its Domestic Anticorruption Efforts Using Principles of the FCPA and the U.K. Bribery Act, 34 U. Pa. J. Int’l L. 902, 915 (2013).

[15] United Nations Office on Drugs and Crime, https://www.unodc.org/unodc/en/treaties/CAC/convention-highlights.html (last visited Sept. 20, 2015).

[16] Elisa Solomon, Targeting Corruption in India: How India Can Bolster Its Domestic Anticorruption Efforts Using Principles of the FCPA and the U.K. Bribery Act, 34 U. Pa. J. Int’l L. 902, 917 (2013); see also id. at 916-18 (citation omitted) (noting that there still exists “significant gaps. . . [in] [] policy and practice” between the Central Bureau of Investigation (“CBI”), “the principle government agency responsible for enforcing the PCA,” and the Central Vigilance Commission, which “supervises and may direct CBI investigations of PCA offenses”).

[17] See G.A. Res. 58/422, at 7 (Oct. 31, 2003).

[18] U.N. Office on Drugs and Crime, http://www.unodc.org/unodc/en/treaties/CAC/signatories.html (last visited Sept. 20, 2015) (showing the full list of signatories as of April 2015, such as Afghanistan and Burkina Faso); see also World Economic Outlook (International Monetary Fund), http://www.imf.org/external/pubs/ft/weo/2015/01/pdf/text.pdf (last visited Sept. 20, 2015) (displaying the full list of nations, as of April 2015, that are defined as possessing developing economies).

[19] See 20th Report of the Law Commission of India, Report on Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations—A Study and Proposed Amendments (2015) at 3 (recommending that, after a survey of international law, the implementation of certain defenses to the act of foreign bribery).

[20] See id. at 1-5.

[21] See supra note 10.