Know the Difference between bribery and corruption

In colloquial language and in several scholarly works the term ‘corruption’ and ‘bribery’ have been treated as synonyms. However, the two words have a slightly different meaning

Bribery

Bribery means giving or receiving a free reward to influence someone’s behavior. One common form of bribery is a “kickback” it means a free reward which can alter someone’s behavior and gain a favorable reward.[1] An act of bribery relates to the administration of public justice, to affect his behavior, and to incline him to act contrary to his duty and the known rules of honesty and integrity.[2]

For establishing the offense of bribery, it has two elements to it.

1. Active Bribery- Active bribery refers to the act of promising or giving the bribe. Here, the term active briber does not infer that active bribery has taken the initiative since the receiving party might have demanded the bribe.[3]
2. Passive Bribery- Passive Bribery refers to the act of receiving the bribe. However, the commission of the act of passive bribery does not exonerate the liability. In many cases, he/she may have demanded the bribe in the first place.[4]

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Elements of proving bribery

Proof of bribery requires demonstrating a “quid pro quo” relationship in which the recipient directly alters behavior in exchange for the gift. Campaign donations from corporations or individuals to political candidates do not constitute bribery, because a direct relationship cannot be established between the same. Another element of proving bribery includes proving intent to influence the discharging of another’s official duties. Some statutes also require proof that both parties understand and agree to the arrangement. Attempt to bribe is also considered in the separate category of crime. However, the punishment for both attempts to bribery and complete bribery is the same. Solicitation of a bribe also constitutes a crime and is achieved regardless of whether the solicitation results in the receipt of a valuable gift.[5]

Corruption

Corruption is an unlawful or improper behavior that seeks to gain an advantage through illegitimate means.[6] It includes any illegal use of office and may consist of a range of different types of crime. By a broad definition of corruption, a government official, whether elected, appointed or hired, may violate federal law when he/she asks, demands solicits, accepts, or agrees to receive anything of value in return for being influenced in the performance of their official duties.[7]

Bribery, abuse of power, extortion, fraud, deception, collusion, cartels, embezzlement, and money laundering, are all forms of corruption.[8]

However, Bribery is limited to the giving or acceptance of payment or other illegitimate advantages.

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For establishing the offense of corruption,

it has two elements to it.

1. Supply Side- Supply-side refers to the person or office who provides or promises to provide the illicit benefit in fraudulent transactions. [9]
2. Demand Side- The demand side of the bribe (also known as “passive” bribery) focuses on the person or entity soliciting or receiving the bribe. The officials with entrusted authority who received wrongful benefits constitute the demand side.[10]

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Prevention of Corruption laws in India

Public servants in India can be penalized for corruption under the

1. Indian Penal Code, 1860
2. The Prevention of Corruption Act, 1988.
3. The Benami Transactions (Prohibition) Act, 1988 prohibits Benami transactions.
4. Prevention of Money Laundering Act, 2002 is an Act of the Parliament of India enacted by the NDA government for curbing the offense of money laundering and providing provisions for the confiscation of the property so acquired.

India has also signed but not ratified the UN Convention against Corruption since 2005. This convention deals with a wide range of offenses and also provides preventive and punitive policies for the same.

Section 169 of IPC pertains to a public servant unlawfully buying or bidding property. In the case where the charge of corruption is established against the public servant, he shall be punished with the imprisonment of up to two years or with a fine or both. The property so acquired shall be confiscated.

The definition of public servant given in The prevention of Corruption Act, 1988, sweeps a wider ambit for the office-bearers. It includes office bearers of cooperative societies receiving financial aid from the government, employees of universities, banks and the Public Service Commission.

If a public servant accepts a valuable thing as a gift or paying inadequately for the same,  from a person with whom he is involved in a business transaction in his official capacity, he shall be penalized with a minimum punishment of six months and maximum punishment of five years and fine.

However, it is necessary to obtain prior sanction from the central or state government to prosecute a public servant.[11]

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Impacts on the economy

Both bribery and corruption have been long perceived as a hurdle to economic growth.[12] Economists consider the same as to impact economic growth because it encouraged rent-seeking behavior negatively. Rent-seeking behavior refers to an individual’s or corporation’s attempt to wrongly alter the open market to provide that individual or corporation with a disproportionate amount of wealth. Such an environment results in a sub-optimal or misallocation of resources, which results in poor economic growth.

The same leads to frustration in competition in the market. For instance, a person deserving of a position is debarred from the same by means of corruption. This leads to the development of notion in the minds of people, that the financially well-off person can avail of all the benefits by debarring the candidates who fulfill all the pre-requisites for that position. An increase in corruption enhances the power of grabbing hands.

[1] “Bribery and Corruption” (Serco) <https://www.serco.com/about/serco-code-of-conduct/our-business/bribery-and-corruption> accessed May 19, 2019.

[2]“What Is BRIBERY? Definition of BRIBERY (Black’s Law Dictionary)” (The Law DictionaryApril 6, 2014) <https://thelawdictionary.org/bribery/> accessed May 23, 2019.

[3] “Glossary” (U4 Anti-Corruption Resource Centre) <https://www.u4.no/terms#active-bribery. > accessed May 23, 2019

[4] “Glossary” (U4 Anti-Corruption Resource Centre) <https://www.u4.no/terms#passive-bribery. > accessed May 23, 2019

[5] LII Staff, “Bribery” (Legal Information instituted November 20, 2014) <https://www.law.cornell.edu/wex/bribery> accessed May 23, 2019.

[6] LII Staff, “Public Corruption” (Legal Information InstituteJune 18, 2015) <https://www.law.cornell.edu/wex/public_corruption> accessed May 23, 2019.

[7] Ibid.

[8] Ibid.

[9] “Glossary” (U4 Anti-Corruption Resource Centre) <https://www.u4.no/terms#supply-side.> accessed May 23, 2019

[10] “Glossary” (U4 Anti-Corruption Resource Centre) <https://www.u4.no/terms#demand-side.> accessed May 23, 2019.

[11]  PRS Legislative Research, “Corruption Laws in India”

<https://www.prsindia.org/administrator/uploads/general/1302844978_PRS%20Note%20on%20corruption%20laws.pdf> accessed May 23, 2019.

[12] Bribery and corruption | Business Crime and misconduct <https://www.icaew.com/technical/legal-and-regulatory/business-crime-and-misconduct/bribery-and-corruption>  accessed May 23, 2019.