Draft bill moots jail for foreign public officials who bribe

A foreign public official offering or accepting bribe would be considered a criminal offence attracting a jail term of up to seven years, the draft anti-corruption bill prepared by the Law Commission stated.

The Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill also suggests rationalising certain payments made in the course of routine functions of foreign officials, such as for issuing permits or licenses, processing official documents, and similar services.

The Bill also sought to differentiate between offences of abetment and attempt to commit “passive and active” bribery contending that the ingredients for these offences differ and ought to carry different penalties.

It has proposed jail term of a minimum of three years and extending up to seven years for abetment of the offence, while people who “attempt” to commit an offence shall get a prison term of a minimum of one year and extending up to three years.  In both the situations, the person shall also be liable to pay a fine.

The Bill is a revised version of the one introduced in Parliament in 2011 which lapsed with the dissolution of the 15th Lok Sabha. Law Commission Chairman A P Shah presented a report on the Bill to the government on Thursday.

The draft law also criminalises passive bribery, which deals with the acceptance of bribes by foreign officials. Few countries, including Malaysia and Switzerland, have criminalised the offence.

The commission has suggested deletion of a provision that sought to unilaterally amend all extradition treaties signed by India to deem offences under this law as extraditable offences.

It pointed out that such a provision would be in violation of the Vienna Convention of Law on Treaties. Based on suggestions made by the law minister, the commission has also recommended that the proposed law must provide a specific provision that details the defences and exceptions available against the offences under the law.

“This includes an exception for payments made in the course of routine duties or functions of foreign officials, such as for issuing permits or licenses, processing official documents, and similar services,” it said.

The report said such defences and exceptions are routinely provided in all other jurisdictions, and it is appropriate that India follows this norm. Such a provision was not present in the original Bill.

It also stated that the law must be applicable “only” to instances of bribery that occur wholly or partly within India or on an Indian aircraft or ship; or where the bribery takes place abroad, to persons who are citizens or permanent residents of India or bodies that are incorporated in India.

India is one of 176 countries that is a signatory to the United Nations Convention Against Corruption, 2003, under which all signatories must enact a law that penalises bribery of foreign public officials as well as officials of public international organisations.