In addition, as noted in the section on private commercial corruption, Indian law imposes a fiduciary duty on statutory officials of companies, such as directors and auditors, to monitor and report fraudulent transactions. For the purposes of the above definition, an employee of a company controlled by the central or state government, or whose shares are 51% owned by the central or state government, would be a civil servant, and his shares would fall within the competence of the PCA. India`s Supreme Court also recently ruled that bank employees would also be considered “civil servants” under the PCA (including employees of private banks). Which government agencies enforce laws and regulations on domestic corruption? Companies should ensure appropriate monitoring and reporting procedures to assess the effectiveness of their anti-corruption framework. This could include, for example, regular reviews of the implementation of anti-policy policies and procedures, monitoring of third-party relationships, verification of high-risk transactions, and review of internal financial controls. Reviews may be conducted internally or organizations may consider external support. The overriding imperative of the law is that a business organization must understand and document the risks to which it is exposed and take appropriate measures to address them. All procedures for the prevention of corruption should be proportionate to those risks. XI PERSPECTIVES AND CONCLUSIONS Law enforcement agencies have continued to conduct aggressive investigations into bribery and corruption in recent years. However, aggressive prosecutions are needed to pass the constitutionality test in India.
While the recent trend in the courts favours law enforcement agencies over the accused, it is very likely that the courts will be asked to strike a balance between strengthening law enforcement and protecting the constitutional rights of the accused. “The senior management of a commercial organization (whether it is a board of directors, the owner or any other entity or equivalent person) is committed to preventing corruption by persons associated with it. They foster a culture within the organization where corruption is never acceptable. Despite all these efforts, India`s ranking on the Corruption Perception Index remains grim. This can be attributed to India`s history characterized by weak enforcement of anti-corruption laws, lack of adequate protection for whistleblowers, delayed and delayed investigations, delays in technological advances, lengthy appeal processes and mechanisms, little or no mechanism to punish foreign bribery, unfair and opaque political financing, etc. VII INTERNATIONAL ORGANIZATIONS AND CONVENTIONS India has ratified the United Nations Convention against Corruption (UNCAC) and the United Nations Convention against Transnational Organized Crime, both of which require the criminalization of bribery and bribery of public officials. According to Indian law, contractual obligations in Germany become binding only with the enactment of a corresponding law by the legislator. Therefore, legislative amendments to the PCA were introduced in 2018 to align it with India`s international obligations under the UNCAC.
In India, there is no specific law covering “private commercial bribery”. Laws such as the PCA are limited only to bribery by “officials”. However, as mentioned earlier, companies usually prohibit such bribes through internal codes of conduct. In addition, private business corruption may constitute fraud under the 2013 Act, and if these payments are concealed as legitimate expenses, this may result in a violation of the provisions relating to bookkeeping and record keeping. Communicate core corporate values and support policies and procedures (e.g., Whistleblowing and speaking programs, ethics or code of conduct, anti-corruption policies) will strengthen the anti-corruption culture. Training and knowledge of the organization`s procedures are also essential to help stakeholders understand how corruption can occur, when they and the company could be at risk, and to empower them to deal with all the problems associated with it. The definition of a “business organization” in the CPA includes any entity or partnership registered outside India that carries on a business or part of a business in any part of India. In this context, crimes committed by foreign companies are equated with crimes committed by Indian companies. The 2019 Finance Act further amended the definition of “proceeds of crime” to clarify that it covers all property that arises or may be obtained directly or indirectly from criminal activities that may be associated with such an identified crime.
The above inclusive definition of “civil servant” must be seen in the context of the role of state-owned enterprises, commonly referred to as public sector units (PSUs) in the Indian economy. Until India introduced progressive privatization as a policy in 1991, several key sectors of its economy were dominated or monopolized by PSUs. Various decisions have been taken at the LEVEL of the PSU and not by the government. The prevention of corruption among PSUs and their employees was therefore a major concern. A person convicted of corruption may be punished with imprisonment or a fine. A conviction under the CP Act can result in imprisonment for up to 10 years and a fine. A professional organization may be liable to heavy fines in addition to the imprisonment of its executive. In addition, according to the CPI, bribery of a person to exercise his or her right to vote is punishable by up to one year`s imprisonment.
India`s implementation of the anti-corruption framework has been weak in the past. This is due to factors such as lack of investigative authority staff and prosecutors, lack of qualified investigators and prosecutors, lack of adequate training and modernization, delayed investigations, lengthy proceedings, political interference, technological challenges, lack of adequate infrastructure, etc. One of the biggest obstacles is the failure to adopt the latest forensic and scientific investigative tools. In addition, transactions in the business world have become complex, especially due to the stratification of transactions by letterbox companies. It is therefore difficult to collect such evidence and link it to the criminal offence of corruption and corruption. With the rise of crypto laundering, investigative authorities face a complex application challenge due to the inherent anonymity and immutability of cryptocurrencies. “The commercial organisation shall monitor and review procedures for the prevention of corruption by persons associated with it and, where appropriate, make improvements.” Examples of the most common areas of vulnerability could be business activities in high-risk locations (e.g., Countries with higher perceived or actual levels of corruption), higher risks attributable to specific sectors, special types of transactions (e.g. licensing, public procurement, gifts/hospitality/entertainment) or business opportunities (e.g.
those requiring a high level of intermediary participation). The risk assessment should examine a variety of these internal and external factors and assess the areas of highest risk in terms of potential corruption risk. In addition, allegations of corruption are usually investigated by the state police and the CBI. While the State Police is subordinate to the Government, the CBI is essentially an autonomous body established by law and under the Ministry of Personnel, Public Complaints and Pensions. The figures show that the state police authorities are mainly the leaders of these investigations as they are obliged to respond to private complaints, unlike the CBI, which is usually appointed by the central government, the state government, the CVC, Lokpal or, where the CBI investigation is entrusted by the high courts or the Supreme Court of India, Studies. In order to align India`s anti-corruption framework with international law and policy, measures should be taken to punish bribery of private sector officials and protect corporate whistleblowers. With respect to corruption by foreign companies (e.g. In the case of the AgustaWestland helicopter, India must also establish a strict mechanism for the screening and criminalization of foreign bribery (bribery of foreign officials in India and bribery by foreign companies in India) in order to adapt to the multilateral consensus on the criminalization of foreign bribery. “Due diligence is firmly established as an element of good corporate governance, and it is envisaged that due diligence related to the prevention of corruption will often be part of a broader due diligence framework.
The objective of this principle is to encourage commercial organisations to put in place due diligence procedures that adequately inform the application of proportionate measures to prevent persons associated with them from engaging in bribes on their behalf. There is a trend towards greater vigilance in certain sectors – particularly in the financial and real estate sectors – where the potential for corruption may be higher. The registration, investigation and prosecution of executives in key positions in organizations accused of corruption or bribery of officials through the imposition of executing agents has become widespread.