EFFECT OF ANTI - CORRUPTION LEGISLATION, CRIMINAL ENFORCEMENT & ADMINISTRATIVE SANCTIONS ON EXPANDING EAST-WEST INVESTMENT
Ravi NATH India Partner, RNClegal/Rajinder Narain & Co. April 20, 2013 CBIC Session 1
ANTI - CORRUPTION REGIME
1. Legislative framework 2. Administrative / Institutional framework 3. International Conventions / Regulations 4. Court precedents / Judge made law
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ANTI - CORRUPTION REGIME – Cont. 1.
Legislative framework Corruption Act
Money Laundering Act Right to Information Act Benami Transactions Prohibition Act
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ANTI - CORRUPTION REGIME – Cont.
1. Legislative framework (slide 3) 2. Administrative / Institutional framework The Central Vigilance Commission The Central Bureau of Investigation The Office of the Comptroller and Auditor General
The Chief Information Commission E-governance 4 RAVI.NATH@ RNCLEGAL.COM
ANTI - CORRUPTION REGIME – Cont.
1. Legislative framework (slide 3) 2. Administrative / Institutional framework (slide 4) 3. International Conventions / Regulations UN Convention against corruption - not ratified by Japan, Germany, Korea and others. Financial Action Task Force ADB’s anti-corruption action plan for Asia-Pacific 5 RAVI.NATH@ RNCLEGAL.COM
ANTI - CORRUPTION REGIME – Cont. 1. Legislative framework (slide 3) 2. Administrative / Institutional framework (slide 4) 3. International Conventions / Regulations (slide 5) 4. Court precedents / Judge made law Cancellation of contract / withdrawal of tender Demand or solicitation is an offence
Employment of decoys and spies / sting operations
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ADMINISTRATIVE SANCTIONS
Object: to prevent frivolous prosecutions of public servants
Without sanction, Court will not cognize offences of gratification, abetment, misconduct etc. (u/s 7, 10, 11, 13 and 15 of the Corruption Act)
Sanction to be given:
By competent authority for all Govt. employees except Group A Officers
By Govt. itself for Group A Officers
Within 3 months
Courts not to direct Government to issue sanctions
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US AND UK LAWS; COMPARISON WITH;
US : Foreign Corrupt Practices Act, 1977
UK : Bribery Act, 2010
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IS INDIA REALLY FIGHTING CORRUPTION?
CORRUPTION IN INDIA – IS IT A ‘FACT OF LIFE’?
IS INDIAN ENFORCEMENT REGIME EFFECTIVE? 9
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EXAMPLES OF RECENT SCAMS
Bribery and abuse of power (Coalgate)
Adarsh Housing
Commonwealth games (US$ 13b)
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EXAMPLES OF RECENT SCAMS– Cont.
2G spectrum allocation (US$ 40 b)
Kickbacks in defense
Corporate fraud
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STEPS FOR IMPROVEMENT
Strict law enforcement
Procedure simplification: legal and administrative
Electoral reforms
Citizen empowerment
Police reform
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STEPS FOR IMPROVEMENT – Cont.
Removal / reduction in number of intermediaries
Transparency and accountability in governance
Corruption free governance a fundamental/human right
Whistleblower policy
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Questions?
Ravi NATH RNClegal / Rajinder Narain & Co. International Commercial & Corporate Lawyers T: + 91 11 4122 5000 C: + 91 98110 27193 E:
[email protected] www.rnclegal.com
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