Report No. 258
B. Clause 1
Analysis and comment:
5.2.1 Clauses 1(1) and 1(3) may be retained as they are.
5.2.2 However, there are concerns with clause 1(2). In particular, clause 1(2)(c), which attempts to extend the jurisdiction of this law to "persons on an aircraft or ship registered outside India but for the time being in or over India", is extremely broad in its application, and may not be consistent with the principles of sovereignty envisaged by Article 4 ('Protection of Sovereignty') of the UNCAC. Article 4(1) of the UNCAC requires that States Parties to the UNCAC will carry out their obligations under the Convention "in a manner consistent with principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States".
Article 4(2) further clarifies that under the UNCAC, a State Party cannot exercise jurisdiction or perform functions that are "reserved exclusively for the authorities of another State by its domestic law". In light of these provisions, clause 1(2) must be redrafted to clarify the circumstances in which the conduct constituting an offence under this Act may fall under the jurisdiction of Indian law.
5.2.3 Further, clause 1(2)(d)(ii) contains two terms that are unclear and not defined, i.e., "place of business" and "ordinary residence in India", which can lead to concerns during interpretation and applicability.
5.2.4 Suggested draft:
1. Short title, extent and commencement. -
(1) This Act may be called the Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Act, 2015.
(2) It extends to the whole of India, and applies -
(a) when the conduct constituting the offence under the Act occurs:
(i) wholly or partly in India; or
(ii) wholly or partly on board an aircraft or ship registered in India at the time of the commission of the offence;
(b) when the conduct constituting the offence under the Act occurs wholly outside India, and the offence is committed by:
(i) a person who is an Indian citizen;
(ii) a person who is a permanent resident of India; or
(iii) a person that is a body corporate incorporated by or under the laws of India.
Explanation 1: For the purposes of clause (b), the expression "permanent resident" shall have the same meaning as assigned to it under the Income Tax Act, 1961 (43 of 1961).
Explanation 2: When the conduct constituting an offence occurs wholly outside India, no proceedings under this Act shall commence without the previous sanction of the Central Government.
(3) It shall come into force on such date as the Central Government may, by notification, appoint; and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.