Report No. 258

D. Clause 3

Analysis and comment:

5.4.1 This clause addresses the offence of passive bribery as provided under Article 16(2) of the UNCAC. It is relevant to recall the discussion in chapters 2 and 3 of this Report, where it is pointed out that Article 16(2) merely requires States Parties to the UNCAC to consider criminalising the solicitation or acceptance of bribes by foreign public officials and officials of public international organisations. In this regard, Article 16(2) is not a mandatory requirement but a directory provision. Of the countries surveyed by us, no other country, besides Malaysia and Switzerland, has passed a law pertaining to Article 16(2).

5.4.2 It is also relevant to consider the principles of sovereignty laid down in Article 4 of the UNCAC, under which a domestic law cannot be applicable outside the territory of the country where it is enacted. In this case, in light of the redrafted clause 1(2) recommended by the Commission above, a foreign public official or an official of a public international organisation accused of passive bribery would be prosecuted in India under clause 3 only if the offence is committed wholly or partly in India.

This would be further subject to the waiver of diplomatic immunities by the concerned foreign country or public international organisation. Even the relevant laws in Malaysia and Switzerland do not contain any specific provision to prosecute foreign public officials or officials of public international organisations when the offence has taken place outside their country.

5.4.3 Accordingly, the necessity of retaining clause 3 may be reconsidered. In the alternative, as suggested above, in light of the proposed redraft of clause 1(2), clause 3 will be applicable only to an act of passive bribery that has taken place wholly or partly in India, or on board an aircraft or ship registered in India at the time of the commission of the offence.

5.4.5 Further, clause 3 as presently drafted makes the offence of "attempt" to obtain undue advantage punishable with the same duration of imprisonment as the offence itself. However, the offence of "attempt" is now captured in a separate provision in the redrafted version of the 2015 Bill (see comment on clause 5), with a lesser duration of imprisonment. Therefore, the words "or attempts to obtain" may be deleted from here.

5.4.6 Suggested draft:

3. Prohibition for accepting gratification by foreign public officials or officials of public international organisations.

Whoever, being a foreign public official or official of public international organisation, intentionally accepts or obtains or agrees to accept from any person, for himself or for any other person or entity, any undue advantage other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or entity for rendering or attempting to render any service or disservice to any person or entity, shall be punishable with imprisonment which shall not be less than three years but which may extend to seven years and shall also be liable to fine.