India among 19 worst countries 'failing' to criminalise bribery of foreign officials: Study

Counterview Desk

A new report, “Exporting Corruption”, published by Berlin-based non-profit Transparency International, regrets that although India has been a party to the UN Convention against Corruption since 2011, it has yet to meet the Article 16 obligations to define and criminalise foreign bribery, adding, the country’s legal framework suffers from shortcomings which affect its capacity to prevent and prosecute foreign bribery.
Pointing out that corruption has different facets along with normal “give and take”, with bribery of foreign public officials being regarded as an emerging form of corruption across the globe, the report brackets India’s inaction against foreign bribery and related money laundering with that of China and Hong Kong special administrative region (SAR), pointing out India is in category of Little or no Enforcement.
Other highlights of the report include, In the period 2016-2019, India initiated no investigations of foreign bribery, commenced no cases and concluded no cases, pointing out, India has been placed in the worst bracket of Little or No Enforcement along with 19 others countries which contribute 36.5% of the total global export.

A note by NGO Agam on the report:

A new study by Transparency International published on October 13, 2020 rates 47 countries on how actively they fulfil their obligation to investigate, prosecute and punish companies that bribe officials in foreign countries.
The report, “Exporting Corruption 2020”, evaluates signatories to the OECD Anti-Bribery Convention as well as China, the world’s biggest exporter, and India, Singapore and Hong Kong, large export markets which are not signatories to the OECD Convention but are parties to the UN Convention against Corruption. In total, the countries and territories reviewed are responsible for more than 80 per cent of world exports.
The report features country briefs on each of the jurisdictions covered and makes specific recommendations to governments and the international community for improving enforcement.
The Indian government does not publish any statistics on its foreign bribery enforcement and does not disclose such statistics on request. The authorities do not disclose any information about unpublished cases related to bribery of foreign public officials by Indians.
India even after several anti-corruption development i.e. appointment of the first Lokpal (Ombudsman), Amendments to the Prevention of Corruption Act, The Companies (Amendment) Act, 2017, The Whistleblowers Protection Act 2014 and many more, failed to implement active enforcement. India still has a long way to go in meeting their obligations. Despite of several scandals India has experienced, bribery continues to be used by companies from major exporting countries to win business in foreign markets.
Corruption in international business transactions undermines government institutions, misdirects public resources, and slows economic and social development. It distorts cross-border investment, deters fair competition in international trade and discriminates against small and medium-sized enterprises.
As foreign bribery is not yet criminalised in India, the adequacy of the enforcement system in relation to this specific offence cannot be assessed. However, certain shortcomings in the enforcement system evident from current enforcement of domestic corruption, would also be a concern for foreign bribery enforcement. While the Indian Penal Code and Prevention of Corruption Act prescribe criminal and civil liability for domestic corruption, the reality is that actions taken against the perpetrators have been far and few in between.
There are multiple agencies in India involved in investigation of cases related to corruption, fraud etc.and coordination among agencies is seen as the biggest challenge in timely prosecution of the offenders.
The high-profile investigations get delayed due to political interreferences. The Indian investigating agencies are short staff and many of them lack skills to investigate white collar crime and other economic offences. The investigation of transnational crimes especially those linked with corruption, money laundering are delayed due to lack of timely coordination with foreign investigating agencies, it has been area of concern for long and has been unaddressed till date.
Recommendation for priority actions:

• Publish statistics and court decisions on enforcement against corruption.
• Introduce a public register of beneficial ownership. 
• Pass legislation criminalising foreign bribery. 
• Sign and ratify the OECD Anti-Corruption Convention. 
• Extend coverage of whistleblower protection to the private sector. 
• Pending legislation on foreign bribery, enforce against foreign bribery to the extent possible under existing legislation. 
• Ensure better coordination among various investigation agencies. 
• Enhance cooperation and information sharing with investigating agencies of other countries. 
• Invest in training and capacity building of investigators and prosecutors. 
• Engage with CSOs to raise awareness about corruption and whistleblowing. 
• Publish an annual overview detailing reported cases of foreign bribery and action taken by the authorities. 

“Although India has been a party to the UN Convention against Corruption since 2011, it has yet to meet the Article 16 obligations to define and criminalise foreign bribery and the legal framework suffers from other shortcomings which affect India’s capacity to prevent and prosecute foreign bribery” says Ashutosh Kumar Mishra, lawyer, senior advisor at Agam and partners for Transparency Foundation India.