The 2018 amendment to the POCA introduced criminal liability in relation to the giving of a bribe to a public servant by any person, as well as the bribery of public servants by commercial organisations. These additional rigours were introduced with a view to ensuring stricter curbs on any acts of corruption and further widening the net of persons liable for such action.

Undue advantage under India’s POCA: Meaning and scope

The framework of the POCA applies to public servants as well as private persons in their dealings relating to public duties. The POCA has sought to penalise the taking of any “undue advantage” by a person discharging a public duty, as well as the giving or offering of such undue advantage.

The term undue advantage is defined as “any gratification whatever, other than legal remuneration”, where “gratification” is “not limited to pecuniary gratifications or to gratifications estimable in money”; while “legal remuneration” includes “all remuneration a public servant is permitted to receive under applicable rules”.

The POCA is principally aimed at penalising public servants who obtain, accept or attempt to obtain an undue advantage from any person, with the intention of performing, causing the performance of, or refraining from performing a public duty improperly or dishonestly, or as a reward for such improper or dishonest conduct, whether by themselves or through another public servant.

The terms “obtains”, “accepts” and “attempts to obtain” encompass conduct benefitting the public servant or another person by abusing an official position, exerting personal influence over another public servant, or using any other corrupt or illegal means. Under the POCA, it is immaterial whether the advantage is solicited, or received directly, or through an intermediary.

Any person offering or giving an undue advantage to a public servant can be prosecuted under the POCA. In cases where the bribe giver is a commercial organisation or a person associated with a commercial organisation, both the commercial organisation and such persons associated with the commercial organisation complicit in the offence can be held liable.

The liability of a commercial organisation arises where it (or any associated person) bribes a public servant to obtain or retain “business” or an “advantage in the conduct of business”. A person associated with a commercial organisation refers to persons or entities who perform services for or on behalf of the commercial organisation and can include employees, agents or subsidiaries.

Independently, persons in charge of the commercial organisation can also be held personally liable where it can be established that such an offence was committed by the commercial organisation with their consent and connivance. Persons in charge of the commercial organisation would include directors, officers or persons in charge of a commercial organisation who are involved in the conduct of bribery giving.

Indian courts have consistently treated undue advantage given to secure unlawful acts, or to secure lawful acts performed improperly, as bribes. A crucial element for prosecution under the POCA is proof of both “demand” and “acceptance” of the undue advantage.

This evidentiary insistence protects against convictions based solely on possession or recovery of tainted bribe money, ensuring that the proscribed quid pro quo (that is, an exchange where a benefit is given in return for an official favour or action) between the bribe giver and bribe taker is established through cogent evidence.

Business gifts, hospitality and entertainment under India’s POCA

While the POCA does not permit “business gifts, hospitality or entertainment” to be given to public servants, rules of service applicable to public servants, such as the Central Civil Services (Conduct) Rules, 1964, the All-India Services (Conduct) Rules, 1968, as well as various state-specific rules, have been framed.

These prescribe monetary thresholds for gifts and mandate reporting where values exceed prescribed limits. A breach of such rules can attract disciplinary action against the public servant. Importantly, in certain factual circumstances, the acceptance of lavish gifts and hospitality on a regular basis may constitute “undue advantage” under the POCA.

India’s POCA: Jail, fines and corruption punishments

The POCA prescribes very stringent penalties to deter indulgence in such crimes. The 2018 amendment has increased both the minimum and maximum sentences for various offences under the statute. Persons discharging public duties, if liable under the POCA, are liable to be punished with imprisonment of up to seven years, along with a mandatory fine.

Similarly, persons involved in the giving of bribes, including persons in charge of any commercial organisation found guilty of indulging in bribing a public servant, may face imprisonment of up to seven years. Relevantly, the POCA does not contain any minimum or maximum threshold in relation to the quantum of fines, and the determination of such quantum is left to the discretion of the courts.

Interestingly, in line with its objective of making corruption laws more effective by widening their coverage and strengthening provisions, the POCA empowers the attachment of property representing the proceeds or products of an offence, including assets procured or derived through an undue advantage. Such attachment is an interim restraint over property believed to constitute, or be derived from, the proceeds of bribery or corruption, and is intended to prevent its concealment, transfer or dissipation.

Orders of attachment can be passed by courts where: (1) the property is that of an accused public servant; (2) the property is that of a bribe giver or abettor, where justified by the facts; or (3) the property has been transferred to third parties, including relatives or associates, where the transfer is intended to defeat confiscation or was not done in good faith.

Such attachment orders are measures intended to preserve assets suspected of constituting the proceeds of corruption, ensuring that they remain available for confiscation in the event of a conviction. Any final order of confiscation is determined on conviction. Until then, the attachment remains interim and may be varied or discharged by the court.

Holding companies liable for corruption under India POCA

Corporate criminal liability has long been recognised in India, and commercial organisations have been held liable for prosecution when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. Section 9 of the POCA gives statutory recognition to this principle and renders a commercial organisation liable for acts of bribery committed by persons associated with it.

Significantly, section 9 also provides a defence to commercial organisations where it is successful in establishing that it had in place adequate measures to deter persons associated with it from indulging in corrupt practices. In such cases, the commercial organisation would not be criminally liable under the POCA. While there are no notified rules on what constitutes such adequate measures, commercial organisations need to adopt robust anti-corruption policies to enable them to avail themselves of such a defence.

Key takeaways

The POCA adopts an expansive and functional conception of corruption and bribery with a range of penal consequences and enforcement actions. While commercial organisations may be penalised under the POCA, the statute also contemplates defences available to such entities. Similarly, personal liability for offences by commercial organisations is limited to persons demonstrably in control of the commercial organisation, having actively consented and connived in the offence.

The statute itself and courts have sought to anchor personal and corporate criminal liability within a framework that safeguards commercial organisations and persons who have no active participation in such offences, making it imperative for commercial organisations to implement robust anti-corruption policies and compliance measures to align their business activities with the preventive regime under the POCA.

This article was originally published in Asia Business Law Journal on 28 January 2026 Co-written by: Nishant Joshi, Partner; Aditya Mukherjee, Partner; Aditya Malhotra, Partner. Click here for original article

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