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India is committed to its objective of Zero tolerance against corruption internationally. Good governance,
honesty and transparency are integral part of our system. India is also a signatory to the United Nations
Convention against Corruption and the ratification of the Convention will proceed once implementing
legislation is in place. The process of bringing about change in the existing legislation has begun and a
Department-related parliamentary standing committee on personnel, public grievances, law and justice of
the ministry of personnel, public grievances and pensions is re-examining the requisite legislation to be
framed in this regard. According to the Newsletter of Transparency International of Jan 2009, a
communication has been received from Government of India that the matter for ratification of the United
Nations Convention against Corruption (UNCAC) was under µactive consideration¶.

Provisions already exist in the existing set of Indian laws corresponding to the provisions of the
Convention on several aspects. India is also actively participating in the ADB/OECD Anti Corruption
Action Plan for the Asia Pacific. c

 
 !"## is a specialized law aimed at
curbing corruption in India. It criminalizes corruption in the public and private sector in the form of active
and passive bribery, extortion, bribery of a foreign public officials and abuse of office. Public servants¶
involvement in private sector activities is also restricted by law. Companies operating in India should
familiarize themselves with relevant federal level laws, but should bear in mind that laws in key areas may
differ from state to state. Moreover,
å  $%%& has also played a pivotal role in
the fight against corruption in India. The said RTI Act, 2005 has been used by citizens to access
government documents.

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 !"## deals primarily with

curbing corruption within government agencies and authorities. This is a reenactment of
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!"*+ and, amongst other changes, consolidates into it the offences by or relating to public
servants previously contained in
   '  ( !#,%. The 1988 Act prohibits the taking of a
bribe or any other gratification by a public servant. The word ³gratification´ is not restricted to pecuniary
gratifications or to gratifications estimable in money Gratification is used in its broader sense as meaning
anything which affords satisfaction or pleasure to the taste, appetite or mind. Money is, of course, one
source of affording pleasure in as much as it implies command over things which afford pleasure but
there are various other objects which afford gratification. The satisfaction of one¶s desire, whether of body
or of mind is a gratification in the true sense of the term. In short, gratification is any benefit or reward
whether in cash or kind, given to influence once behavior in office and incline one to act contrary to the
rules of honesty and integrity. One of the objects of the 1988 Act was to make the existing anti-corruption
laws more effective by extending the scope of the definition of ³public servant´ and to bring within its
sweep each and every person who holds an office by virtue of which he is required to perform any public
duty.

In addition,
'

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!"## takes into its ambit not only public servants but also
anyone who acts as a tout or intermediary in the offence of corruption, which means that the Prevention
of Corruption Act is applicable to all public servants and to all private citizens who may aid and abet a
public servant in corruption. Under this Act, the offering or giving a bribe or a valuable thing to a public
servant without consideration or for an inadequate consideration is an offence. Private individuals, who
are found grabbing public funds in conspiracy/active connivance of public servants, are liable for being
prosecuted for corrupt activities under the Act. The relevant point to consider is the state of mind of the
accused when he offers a bribe or a valuable thing. As soon as there is instigation to a public servant to
show a favour or disfavour, an offence is complete quite irrespective of the fact whether the public servant
did not accept or consent to accept the money or whether he was or he was not in a position to do the act
or to show a favour or disfavour. To prosecute a public servant, it is necessary to obtain prior approval of
the Central Government or State Government in the case of Central and State Government employees
(as applicable) and, in the case of any other person, the authority competent to remove the accused from
office.

'

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!"## provides for penal provisions for any form of corruption and the
maximum punishment for any offence committed under the Act is seven years along with fine.
Administrative sanctions are provided in Conduct Rules which outrightly forbid acceptance of gifts,
benefits & hospitality from the firms dealing with the organizations. All gifts, benefits and hospitality are
forbidden from organizations with which officers are having official relationship. All gifts of above a
specified monetary limit from all sources are to be reported. It is pertinent to mention here that although
most of the provisions pertaining to bribing of public officials have eventually been omitted from
  
' (!#,%, it still contains certain provisions relating to corruption. Therefore, whoever indulges in
corruption could be prosecuted under both
  ' (!#,% and the Prevention of Corruption
Act, 1988.

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 $%%& (RTI) is a central legislation,
which enables the citizens to procure information from a public authority. It provides the mechanism for
obtaining information. RTI Act is a progressive legislation based on citizen¶s right to know which is a
fundamental right enshrined in the Constitution of India. The purpose of the Act is to make the executive
accountable and ensure transparency in the implementation of schemes and policies. Under the Act,
information may be sought from a public authority as defined under the act. However, according to
Section 8 of
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$%%&, the following are exempted from disclosure under RTI:-

1) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the
security, strategic, scientific or economic interests of the State, relation with foreign State or lead to
incitement of an offence;

2) information which has been expressly forbidden to be published by any court of law or tribunal or the
disclosure of which may constitute contempt of court;

3) information, the disclosure of which would cause a breach of privilege of Parliament or the State
Legislature;

4) information including commercial confidence, trade secrets or intellectual property, the disclosure of
which would harm the competitive position of a third party, unless the competent authority is satisfied that
larger public interest warrants the disclosure of such information;

5) information available to a person in his fiduciary relationship, unless the competent authority is
satisfied that the larger public interest warrants the disclosure of such information;

6) information received in confidence from foreign Government;

7) information, the disclosure of which would endanger the life or physical safety of any person or
identify the source of information or assistance given in confidence for law enforcement or security
purposes;
8) information which would impede the process of investigation or apprehension or prosecution of
offenders;

9) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other
officers;

10) information which relates to personal information the disclosure of which has no relationship to any
public activity or interest, or which would cause unwarranted invasion of the privacy of the individual;

Notwithstanding any of the exemptions listed above, a public authority may allow access to information, if
public interest in disclosure outweighs the harm to the protected interests.

The following are also excluded from disclosure from RTI:-

Central Intelligence and Security agencies specified in the Second Schedule of RTI like IB, RAW,
Directorate of Revenue Intelligence, Central Economic Intelligence Bureau, Directorate of Enforcement,
Narcotics Control Bureau, Aviation Research Centre, Special Frontier Force, BSF, CRPF, ITBP, CISF,
NSG, Assam Rifles, Special Service Bureau, Special Branch (CID), Andaman and Nicobar, the Crime
Branch-CID-CB, Dadra and Nagar Haveli and Special Branch, Lakshadweep Police. Agencies specified
by the State Governments through a Notification will also be excluded.  -  
  


  
 
 
     
 
 
  

  

  
 
  



     

 
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RTI is an effective instrument to fight corruption as it has the widest possible reach covering Central
government, state governments, Panchayati Raj institutions, local bodies and recipients of government
grants. RTI encourages people to effectively use it as a weapon to uncover corruption and punish the
guilty. The right to information leads to an informed society and transparent governance functioning which
are vital to the functioning of a corruption free State. Free flow of information promotes accountability and
transparency, prevents corruption, and strengthens the healthy public functioning. The lack of access to
information on Government policies, programmes, schemes makes corrupt practices thrive; therefore
freedom of information is a potent tool fight against the abuse of public power for private gains.

The RTI has been recognized as an important democratic privilege and one of the essential requirements
of good governance and an instrument to prevent misuse of public power and funds. To give more teeth
to the Act, adequate penal provisions are stipulated under the Act for malicious and unreasonable refusal
of information.

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(³FCRA´) was enacted primarily with the objective of regulating the acceptance and utilization of foreign
contribution and foreign hospitality by persons and associations working in the important areas of national
life. The focus of this Act is to ensure that foreign contribution and foreign hospitality are not utilized to
affect or influence electoral politics, public servants, judges, journalists, printers and publishers of
newspapers and other people working in the important areas of national life. The Act also seeks to
regulate flow of foreign funds to voluntary organizations with the objective of preventing any possible
diversion of such funds towards activities detrimental to the national interest and to ensure that such
individuals and organizations may function in a manner consistent with the values of sovereign
democratic republic. The organizations seeking foreign contributions for definite cultural, social,
economic, educational or religious programmes may either obtain registration or prior permission to
receive foreign contribution from Ministry of Home Affairs by making application in the prescribed format
and furnishing details of the activities and audited accounts. The registration is granted only to such
association, which has proven track record of functioning in the chosen field of work during last three
years, and after registration, such organization is free to receive foreign contribution from any foreign
source for stated objectives. Registration is granted only after thorough security vetting of the activities
and antecedents of the organization and office bearers thereof. However, such organizations which are
newly established and do not have proven track record of functioning may also receive foreign
contribution for specific activities, for a specific purpose and from a specific source after seeking project
based prior permission from the Ministry of Home Affairs.

*
  

Foreign contribution means the donation, delivery or transfer, made by
any foreign source of any, (a) Article, not given to a person as a gift, for personal use, if the market value,
in India, of such article exceeds one thousand rupees; (b) Currency, whether Indian or foreign; or, (c)
Foreign security.

—-.!" Contributions made by a citizen of India living in another

country, from his personal savings, through the normal banking channels, is not treated as foreign
contribution.

*
.
 
1Foreign source means the government of any foreign country or territory or its
agency; international agency; a foreign company; citizen of a foreign country.

*  

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 1 Foreign contribution cannot be accepted by a candidate for
election; correspondent, columnist, cartoonist, editor, owner, printer or publisher of a registered
newspaper; judge, government servant or employee of any corporation; member of any legislature;
political party or office bearer thereof.

* 


 
  

 An association having a definite cultural, economic,
educational, religious or social programme can receive foreign contribution after it obtains the prior
permission of the Central Government, or gets itself registered with the Central Government.

* 
 
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    Whoever accepts, or assists any person, political party or
organization in accepting any foreign contribution or any currency from a foreign source, in contravention
of the provisions of FCRA or the rules made there under, shall be punished with imprisonment for a term,
which may extend to five years, or with fine or with both. ³All the above services & commitments will be
honoured without the citizens having to pay any bribe.´

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provide that dealing in securities shall be deemed to be a fraudulent or an unfair trade practice if it
involves fraud and may include paying, offering or agreeing to pay or offer, directly or indirectly, to any
person any money or money¶s worth for inducing such person for dealing in any security with the object of
inflating, depressing, maintaining or causing fluctuation in the price of such security.

Thus, it can be seen from above that if a company or any of its agents, employee etc. offers or give bribe
to any of the employee of Securities and Exchange Board of India or to any public official (who are
covered under PCA) for dealing in any security with the object of inflating, depressing, maintaining or
causing fluctuation in the price of such security, it amounts to corruption. Therefore, Securities and
Exchange Board of India which is empowered to delist any company indulging in unfair trade practices
under its Delisting of Securities Guidelines can delist such a company for indulging in fraudulent
practices.

«««««««««««««««««« '/

15 —!" 1"" Lead Partner, Kaden Boriss Legal LLP, India; Vice President, SAARCLAW;
Chairperson, IICLAM, Singapore; Advisory Board Member, OIC, USA