As indicated above, bribing a public servant by a commercial organization is now a direct offence. Equally, if any person ‘associated with a commercial organization’ also gives or promises to give any undue advantage to a public servant intending to (a) obtain or retain business for such organization or (b) to obtain or retain an advantage in the conduct of business of such organization, then such commercial organization shall be punishable with fine. A person ‘associated with a commercial organization’ has been defined to mean any person performing services for or on behalf of such organization including an employee, agent or subsidiary. Thus, there is now a wide net cast on commercial organizations in terms of potential liability that can be attracted should it directly or through persons associated engage in conduct criminalized by the anti-bribery legislation.

Attribution of liability to a commercial organization or its officers/ directors

Under general principles of Indian law, the general principles of criminal liability in relation to a company can broadly be understood in the following manner:

• the liability of a company for the acts of its officers / employees (i.e. by application of the doctrine of attribution) and
• the liability of the directors for the acts of the company (i.e. by application of the principle of vicarious liability of the directors).

In terms of the accepted principles of attribution, the company can be made liable for the acts of its officers/ employees who are the ‘alter ego’ / directing mind and will of the company. Companies can be made liable for statutory or common law offences involving ‘mens rea’ and a corporation cannot escape criminal liability merely because the punishment prescribed for such specific offence envisages imprisonment.

Separately, insofar as the criminal liability of the officers/ directors for the acts of the company are concerned, under general principles of Indian law, there is no automatic vicarious liability of the directors or the officers of the company for the acts or omissions of the company. So as to make a director or an officer of the company vicariously liable for the acts of the company, the statute must explicitly provide for such vicarious liability of the directors or persons responsible for the management of the company, should the company be held guilty of an offence under such statute. No person, by merely holding the office of a director or officer of a company, can be made criminally liable for the offences committed by such company. However, in circumstances where it can be established that such director or officer of the company was complicit and/or abetted the commission of such offence by the company, he may be proceeded against for the abetment and/or the commission of such an offence.

Some of these general principles now stand altered basis recent amendments made to the PC Act.

The PC Act now recognizes a form of vicarious liability, in as much as, a person in charge of a commercial organization is made liable for the acts of such commercial organization upon proof that such an act was committed with the consent or connivance of such person in charge.

Need for bribery prevention procedures

Given the wide net cast on commercial organizations that can accrue basis acts of persons associated with such organization, the PC Act now enables a commercial organization to raise a defence and prove that it had adequate procedures in place to prevent persons associated with it from undertaking such conduct and accordingly, it can avoid any liability in terms of the PC Act.

In the absence of adequate bribery prevention procedures, the commercial organisation may be exposed to liability for all such acts of such associated persons. Post these recent amendments, the Indian law now is substantially similar to the United Kingdom Bribery Act 2010 (“UKBA”) on this aspect.

While as of now there are no prescriptive guidelines in respect of the anti-bribery procedures to be adopted by commercial organisations that would pass the muster of Indian law, commercial organisations exposed to operations in should relook at their existing policies or in the absence of policies adopt such polices or standards as may be proportionate to the nature or scope of their business, so as to avail the benefit of the defence should there arise a situation to do so.

Penalties for violation of PC Act

Commercial organizations facing a prosecution / conviction under the anti-bribery law in India would face the likelihood of imposition of fines should they be convicted of an offence of paying a bribe. It is pertinent to note that there are no sentencing guidelines pertaining to imposition of fines in India. The courts typically arrive at the fines by considering factors such as the gravity of the offence and the amount of money or the value of the property involved in the commission of the offence. In sentencing fines, the courts typically target the deterrence of the commission of such offence and endeavour to ensure that no person benefits from his/her wrongdoing.

As per the PC Act, the quantum of fine is to be ascertained basis the amount or property the accused had obtained or the property the accused person is unable to satisfactorily account for.

Further, where it is proved that the offence had been committed with the consent or connivance of any director, manager, secretary or other officer of a commercial organization, such person shall be guilty of the offence and shall be liable for punishment for 3-7 years and shall also be liable to fine.

The following table briefly captures the changes effected to the PC Act in so far as the liability of the commercial organisations and/or its officers is concerned

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