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Report No. 258

C. Clause 2

Analysis and comment:

5.3.1 The definition of an "agent" under clause 2(1)(a) now appears once in the redrafted Bill as recommended by the Commission (see comment on clause 4). Accordingly, this definition should be deleted from here and instead incorporated in the appropriate location.

5.3.2 Clause 2(1)(b) may be retained as it is.

5.3.3 Clause 2(1)(c) "contracting State": This definition is unnecessary, and may be deleted. The term "contracting State" is used in multiple clauses of the 2015 Bill. If this term is retained, it will imply that any proceeding under this law will not be able to proceed until a reciprocal arrangement with the State in question is entered into. Retaining this definition, thus, may entail undue procedural delays. Instead, it is recommended that the term be replaced by the term "concerned State" in the relevant clauses, which will be interpreted appropriately as required by the circumstances.

5.3.4 Clause 2(1)(d) "foreign country": This definition seems deficient and incomplete. It proceeds to define a foreign country only on the basis of government, without having any reference whatsoever to territory. Guidance may be taken from other statutes, such as the Canadian Corruption of Foreign Public Officials Act 1998, to provide, firstly, that foreign country means "any country other than India", and thereafter, include sub-divisions of government.

5.3.5 Clause 2(1)(e) "foreign public official": This is a verbatim reproduction of the definition of the term in Article 2(b) of the UNCAC. However, the terms "public agency" and "public enterprise" are rather vague and not defined. The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, in its Fiftieth Report on the 2011 version of the 2013 Bill, presented to the Rajya Sabha on 29 March 2012, had raised similar concerns.

The Standing Committee pointed out (in para 5.22A of its Report) that phrases like "public agency" and "public enterprise" are "vital definitional variables". The absence of definitional clarity in these provisions could potentially lead to "confusion in interpretation and application", and recommended that these phrases be defined further. The redrafted version of this definition will address these concerns of the Standing Committee as well.

5.3.6 There is also no need to include "official or agent of a public international organisation" in this definition, as that term is defined separately in clause 2(1)(g).

5.3.7 Clause 2(1)(f) and 2(1)(g) may be retained as they are.

5.3.8 Clause 2(1)(h) "public international organisation": This definition is a reproduction of the Australian Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999. However, a shorter and more focused definition can be used, as based on the UK Bribery Act 2010.

5.3.9 Clause 2(1)(j) "undue advantage": This definition per se is adequate. However, clauses 2(1)(j)(i) and (ii) attempt to incorporate the offence itself into the definition, which is inappropriate. Therefore, clauses 2(1)(j)(i) and (ii) should be deleted. Instead, an explanation may be added to clarify the concept of "legal remuneration" consistent with the meaning assigned to it under the Prevention of Corruption Act, 1988.

5.3.10 Suggested draft:

Clause 2(1)(a) should be deleted.

Clause 2(1)(c) should be deleted.

Clause 2(1)(d): "foreign country" means a country other than India, and includes:

(i) any political subdivision of that country;

(ii) the government, and any department or branch of government, of that country or of a political subdivision of that country; and

(iii) any agency of that country or of a political subdivision of that country;

Clause 2(1)(e): "foreign public official" means:

(i) a person who holds a legislative, executive, administrative or judicial position of a foreign country; or

(ii) a person who performs public duties or public functions for a foreign country, including a person employed by a board, commission, corporation or other body or authority that is established to perform such duty or function on behalf of the foreign country, or is performing such duty or function;

Explanation: For the purpose of this definition:

(A) "public duty" means a duty in the discharge of which the State, the public or the community at large has an interest; and

(B) "public function" means an act or duty of a foreign public official in his capacity as such;

Clause 2(1)(h): "public international organisation" means an organisation whose members are any of the following:

(i) countries or territories;

(ii) governments of countries or territories;

(iii) other public international organisations; or

(iv) a mixture of any of the above.

Clause 2(1)(j): "undue advantage" means any gratification, benefit or advantage, property or interest in such property, reward, fee, valuable security or gift or any other valuable thing (other than legal remuneration), whether pecuniary or non-pecuniary, tangible or intangible.

Explanation: For the purpose of this definition, "legal remuneration" is not restricted to remuneration paid to a foreign public official or official of a public international organisation, but includes all remuneration which he is permitted to receive by the foreign country or the public international organisation which he serves.

Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations - A Study and Proposed Amendments Back

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