Forced Corruption: Unveiling Legal Defences For Those Compelled To Bribe

This article offers a nuanced exploration of the legal intricacies surrounding bribery in India, especially in light of the Prevention of Corruption Act, 1988 ('PCA'). It explores the complex dual nature of transactions involving bribes, involving both the giver and the receiver, and how Indian law has evolved, particularly post the 2018 amendment, to address these challenges. The law offers adequate legal defences under the PCA for those compelled into bribery, such as inability to prove improper performance of public duty, compulsion, coercion or duress, voluntary disclosure, absence of knowledge, and lack of intent, among others. The article concludes by acknowledging the challenges in proving compulsion and the risks of defence misuse while recognizing the PCA's role in encouraging reporting and fighting corruption.

I. Introduction

Bribery, a pervasive issue, critically undermines fairness, integrity, transparency, and transparency across various sectors. Recognizing this, India implemented the Prevention of Corruption Act, 1988 ('PCA'), a critical legislative tool designed to combat corruption and hold persons accountable for their involvement in bribery acts.

Unique to bribery is its dual-natured involvement: the bribe giver and the bribe receiver, each driven by different motivations. For the bribe giver, the motivations are many a time rooted in facilitating or speeding up their work. These payments of bribes are sometimes referred to as 'grease' payments or 'speed money,' and while there may be no advantage received other than jumping the queue or speeding up a regulatory process, these payments also fall foul of the PCA. This duality presents a significant challenge for lawmakers, who must thoughtfully navigate the complexities of assigning appropriate penalties. Over time, Indian law has continually adapted to effectively address and penalize the multifaceted aspects of bribery, reflecting a dynamic legal response to this critical issue.

II. Law Prior to 2018

Prior to 2018, the PCA lacked explicit provisions targeting the act of giving bribes within India. Bribe-givers could only be punished through abetment provisions in PCA or for criminal conspiracy under the Indian Penal Code, 1860 ('IPC') . This gap in legislation effectively allowed persons involved in domestic bribery to sidestep legal consequences. S. 24² of the PCA was particularly prone to misuse, complicating the fight against consensual bribery where both parties were willing participants. The absence of specific legal measures addressing the giver's role in bribery transactions posed significant challenges in effectively penalizing and deterring such practices, highlighting a crucial area for legislative enhancement.

Thus, post-amendment in 2018, PCA was amended to include punitive measures for the act of giving a bribe, aligning the Indian legal framework with the United Nations Convention against Corruption ('UNCAC'), which India ratified in 2011. The UNCAC, a comprehensive anti-corruption treaty, mandates signatory countries to criminalize various forms of corruption, including bribery of both domestic and foreign officials. It also emphasizes the adoption of preventive, investigative, and cooperative measures to effectively combat corruption. This amendment marked a significant step in enhancing India's legal arsenal against corruption. Although the amendment has been criticized for making prosecutions against public servants difficult, since the bribe givers would not come forward to report corruption demands since they would fear their own criminal prosecution, the amendment does make the legislation comprehensive.

III. Amended S. 8 of PCA: Incrimination of Bribe Givers

Under s. 8 of the PCA, the legal framework addresses the offense of offering or promising a bribe to a public servant. This provision specifically targets persons who give, promise or propose any undue advantage or gratification to a public servant with the intention to influence their official duties. The law prescribes a stringent penalty for such acts, which can lead to imprisonment for up to seven years, a fine, or both. This section is crucial in delineating the legal boundaries and consequences for the act of giving a bribe in India.

S. 8 of the PCA provides that any person who gives or promises to give an undue advantage to another person or persons, with the intention to either induce such public servant to perform improperly a public duty or to reward such public servant for the improper performance of public duty, shall be punishable with imprisonment that may extend to seven years or with fine or both³. The section further provides that it would be immaterial if the bribe has been given to a third party and not directly to the public servant, or if the bribe has been given directly by the bribe-giver or through a third party⁴.

S. 8 of PCA also contains provisos which state that the provisions of such section shall not apply where a person is compelled to give an undue advantage⁵. Further, the section requires that the person so compelled shall report the matter to the law enforcement authority or investigating agency within a period of seven days from the date of giving such undue advantage⁶.

IV. Defences Available to Bribe Givers

A. Improper performance of public duty

An essential ingredient of the offence under s. 8 of PCA is the intention of the bribe-giver to either induce the public servant to perform a public duty or to reward the public servant for having improperly performed a public duty. Thus, the mens rea of the bribe-giver must be discovered by the court regarding improper performance of public duty.

Now, it is evident that first and foremost there should be an improper performance of public duty by the public servant in order to attract such offence. Take the following cases, for instance, where this requirement may be arguably absent:

• Where an amount is given in the nature of a 'gift' to the public servant and no work case or issue related to the bribe-giver has been handled by the public servant. In such case, the only breach by the public servant would be that of the conduct rules or his service conditions, making him liable to be analysed under vigilance proceedings.

• Where the amount has been given to facilitate or speed up a process (a.k.a., speed money or grease payment). In such a case, the public servant would argue that the decision taken by him or the performance of his public duty has not been prejudiced, and the money was taken only to speed up things, and thus there is no improper performance of public duty. The Supreme Court in the past has come down heavily, though, on such arguments (though that was with respect to the unamended provisions of PCA) – e.g., in Som Prakash v. State of Delhi⁷, the court observed that bribes are not only paid to get unlawful things done but to get lawful things done promptly since time means money.

For the bribe receiver, this aspect may not be of utmost importance because the provisions contained in the PCA against him are comprehensive and make him liable criminally for reasons and manners of more than one single correlative transaction. However, the absence of, or the inability of the prosecution to prove, an improper performance of public duty is the strongest feature of the defence available to a bribe-giver.

B. Compelled to Bribe

Another strong defence is offered in s. 8 in cases where the bribe giver has been compelled to give the undue advantage. The law, though, is unclear as to how this aspect would be proved in a court of law. This defence is accompanied by a procedural requirement that the person compelled to give an undue advantage shall report the matter to the law enforcement authority or investigating agency within a period of seven days from the date of giving such undue advantage.

The law is not clear as to whether the defence of having been compelled to give the bribe would only be available to persons who report the incident to law enforcement authorities. The fact that these two provisions (i.e., first being the exoneration from criminal liability if the person was compelled to bribe, and second being the requirement to report the incident to law enforcement authorities) are contained in two separate provisos inclines the jurist to believe that they are not correlated. Further, the bribe-giver may possess sufficient evidence to prove that he was compelled to give the undue advantage and he may present such evidence if required before a court of law, and such substantive evidence cannot be overlooked for the want of a procedural requirement of reporting.

C. General Defences Under Criminal Jurisprudence

Besides the defences discussed above, several defences are available situationally to the bribe-giver under criminal jurisprudence. These defences include but are not limited to coercion or duress, voluntary disclosure, absence of knowledge, and lack of intent.

1. Coercion or Duress: The defence of coercion or duress in cases of bribery, though not explicitly stated in the PCA, can be a viable legal argument. This defence applies when a person demonstrates that they were forced to offer a bribe due to threats or possible harm to themselves or their loved ones – such harm would include economic harm or harm to property. S. 94 of the IPC supports this by stating that an act performed under the threat of serious harm, which would not ordinarily be done by a person acting freely, is not considered an offence. To effectively use this defence, substantial evidence supporting the claims of duress or coercion is necessary.

2. Voluntary Disclosure: This defence is implied from the 2nd proviso to s. 8(1) of PCA subject to some conditions, as explained above. The accused must proactively report their involvement in the bribery within seven days from the date of the offense and must actively cooperate with the investigating authorities. This disclosure needs to be made to the relevant law enforcement or investigative agency. Such a declaration must be both voluntary and timely to qualify as a valid defence.

3. Absence of Knowledge: The defence of absence of knowledge under the PCA can be invoked when an accused demonstrates that they were unaware of their involvement in a bribery transaction. For example, if an employee unknowingly hands over an envelope containing a bribe while believing it to be a gift, this could constitute a valid defence. However, to successfully claim this defence, the accused must meet a higher standard of proof, establishing that they had no reasonable grounds to believe that the item given or promised was a bribe. This requires substantive evidence to support their lack of knowledge or intent.

4. Lack of Intent: This defence arises from a general principle of criminal law that an offense requires the presence of both a guilty act (actus reus) and a guilty mind (mens rea). This defence is applicable if the accused can demonstrate that they had no intention to offer a bribe or were unaware that their actions could be construed as bribery.

5. Sting Operation:Under s. 8(2) of the PCA, a unique defence exists for persons involved in sting operations. If a person gives or promises a bribe to a public servant as part of a plan to expose corruption, they may claim this defence. It is crucial that the person coordinates with and informs law enforcement or an investigating agency either before or after the act. This defence requires the prosecution to substantiate the accused's claim that their actions were part of a sting operation aimed at uncovering corruption.

6. Mistake of Fact: It is applicable in scenarios where the accused demonstrates that their action was based on a mistaken understanding of a fact, negating the intent or knowledge required for the offense. For example, if a person gave or promised something of value to someone, they genuinely believed was not a public servant, they could invoke this defence. However, the challenge in this defence lies in the higher standard of proof required, as it often involves demonstrating the accused's subjective belief or understanding, which can be intangible and difficult to prove.

7. Necessity:This can be invoked in situations where the accused engaged in bribery to prevent greater, imminent, and unavoidable harm. This could include actions taken under extreme circumstances to save a life. However, this defence is not applicable if the harm prevented is disproportionate to the harm caused by the offense, or if there was a reasonable and lawful alternative to committing the act of bribery. This defence acknowledges that in some extreme situations, breaking the law may be the lesser of two evils.

The defence of compulsion in the context of bribery is specifically designed to protect persons who are victims of extortion or coercion by corrupt public officials. Such officials might demand bribes for carrying out their lawful duties or as a means of harassing citizens. It is important to note that the onus of proving this defence lies with the person who gave the bribe. This defence typically does not apply to persons who voluntarily or collusively engage in offering bribes to public officials to gain undue advantages or benefits.

V. Challenges and limitations

The defence of compulsion under s. 8 of the PCA is a novel and progressive feature of the Indian anti-corruption law. It acknowledges the difficulties faced by ordinary citizens who are sometimes coerced into bribery. This provision encourages persons to report bribery, aiding in the exposure and prosecution of corrupt officials. However, the defence also poses some challenges and limitations, such as:

• Proving compulsion is difficult without objective criteria or evidence.

• There is a risk of this defence being misused by those falsely claiming compulsion to avoid liability.

• Potential collusion between the bribe giver and taker might lead to concealing or destroying evidence.

• There is a general lack of awareness about this defence, especially among the poorer and marginalized communities.

• The defence's applicability is inconsistent regarding foreign officials, which falls under different laws like the Foreign Exchange Management Act, 1999 ('FEMA') or the Indian Penal Code, 1860 ('IPC').

• Though the defence may be available to a person compelled to give bribes, what happens to the benefit he has received from the advantage given by the public servant is not clear.

VI. Conclusion

Bribery gravely undermines trust and fairness in multiple sectors and is considered a serious offense. Nevertheless, the legal framework acknowledges that persons may sometimes be coerced into bribery against their will. The defences outlined in the PCA provide these persons with legal avenues to argue their case and potentially avoid criminal liability.

However, newer paradigms also emerge in practice, and they would need to be settled judicially. For instance, the recent trend in corruption investigations is to charge the bribe giver with criminal conspiracy u/s 120-B of IPC. The charge would often say that the overall transaction of corruption was conspired between the bribe giver and receiver. In such cases, the chargesheet would not allege s. 8 of PCA as the offence committed and rather allege that the bribe giver be punished u/s 120-B of IPC. Though s. 120-B is a derivative offence, it is still an independent offence which is to be tried and defended separately.

It is important to recognize that the application of the defences available to a person compelled to give a bribe can vary based on jurisdiction and the specific circumstances of each case. In its quest to combat corruption, the legal system strives to uphold justice and fairness, thereby fostering a society that values transparency and accountability.

1. Section 120-A of the Indian Penal Code, 1860 defines criminal conspiracy, stating that when two or more persons agree to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. Further, s. 120-B provides for punishment for criminal conspiracy in the same manner as abetment of the offence conspired to be committed.

2. Section 24 of PCA, 1988:

24. Statement by bribe giver not to subject him to prosecution.—Notwithstanding anything contained in any law for the time being in force, a statement made by a person in any proceeding against a public servant for an offense under sections 7 to 11 or under section 13 or section 15, that he offered or agreed to offer any gratification (other than legal remuneration) or any valuable thing to the public servant, shall not subject such person to a prosecution under section 12.

3. Section 8(1) of the Prevention of Corruption Act, 1988.

4. Explanation to s. 8(1) of the Prevention of Corruption Act, 1988.

5. 1st Proviso to s. 8(1) of the Prevention of Corruption Act, 1988.

6. 2nd Proviso to s. 8(1) of the Prevention of Corruption Act, 1988.

7. Som Prakash v. State of Delhi (1974) 4 SCC 84.

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