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Law Commission submits report on bribing foreigner law

On 27 August 27 2015, the Ministry of Law and Justice stated in a press release that it has received the Law Commission’s 258th report on laws regarding bribery of foreign officials. The report also recommends changes to the Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2015.

Currently India has no law in force to address this type of bribery despite being signatory to United Nations Convention Against Corruption, 2003 (UNCAC), under which all signatories must enact a law that penalises bribery of foreign public officials as well as officials of public international organisations, stated the report.

According to the release the law commission undertook an analytical cross-sectional study of bribery laws in other countries that are signatory to the UNCAC, as well as India’s obligations under the UNCAC and suggested certain amendments to the 2015 Bill, in keeping with India’s obligations under the UNCAC as well as existing domestic laws on bribery and money laundering.

The key recommendations are enumerated in the report as:

1. Scope and Jurisdiction: The Bill 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.

2. Offences under the law: The offences of abetment of, and attempt to, commit passover and active bribery must be separate, as the ingredients for these offences differ, and ought to carry different penalties.

3. Defences and exceptions available under the law: The Law Commission recommends that the 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. Such defences and exceptions are routinely provided in all other jurisdictions, and it is appropriate that India follows this norm. These defences and exceptions must be available to all persons, including natural persons and companies.

4. Liability of commercial organisations: Commercial organisations that are guilty of bribery must be liable to pay a fine. Further, if the offence takes place with the consent or connivance of a senior officer of the commercial organisation, that officer must be punishable with imprisonment. A commercial organisation would also be liable where a person associated with such commercial organisation has committed the offence. However, in such circumstances, the commercial organisation may not be liable if it is able to show that it had adequate procedures in place to prevent such conduct. This scheme of liability of commercial organisations is comparable to the scheme recommended by the Law Commission in its 254th Report relating to the Prevention of Corruption (Amendment) Bill, 2013.

To be updated with Law Commission report.

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