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Report No. 254

A. Sections 8(a) and (b) of the 2013 Bill

3.2. The issues regarding the definition of "undue financial or other advantage", the improper performance of a "relevant public function or activity" and the definition of "relevant expectation", discussed in the context of section 7, are applicable here as well.

3.3.1. Section 8 (a) suffers from similar problems as section 7(1)(a) in that it prima facie suggests that the section criminalises only those cases where the person bribes a public servant to perform a public function or activity "improperly". It does not seem to cover those cases, which are very common in India, where the bribe giver is seeking the performance of a routine, or 'proper' public function e.g. giving a bribe to process a routine application.

3.3.2. Section 8(b) is similar to Section 7(1)(b) of the 2013 Bill and is also unclear, unless we see the examples given by the UK Law Commission while discussing these principles in the context of attempting to cover both the private sector and public servants under the Act. The UK Law Commission intended that the section 8(b) provision of the 1988 Act (section 1(3) of the UK Act) cover routine "facilitation" payments where, regardless of the public servant doing anything for the bribe giver, merely accepting the financial or other advantage would be improper. Consider this example:

"Suppose R must by law issue P with a licence. Even so, P gives R £500 to issue the licence (for example, to rest assured in his or her own mind that R will issue the licence). In such a case, P will be guilty of bribery under our scheme if P knew or believed that it would be improper for R to accept the £500. We recommend that even where P is not trying to persuade R to perform a relevant function or activity improperly (or to reward R for such conduct), it should still be bribery if P knew or believed that it would in itself be improper for R to accept an advantage."11

11. UK Law Commission, supra note 2, at ¶ ¶ 3.76-3.77

3.3.3. Recommendation:

Sections 8(a) and (b) should be amended to provide the following illustrations to bring clarity in the interpretation of section 8:

Illustration for section 8 (a): A person, 'P' gives a public servant, 'R' Rs. 10,000 to ensure that he is granted a license, over all the other bidders. P is guilty of an offence under this subsection.

Illustration for section 8 (b): A person 'P' goes to a public servant, 'R' and offers to give him Rs. 10,000 to process his routine ration card application on time. P is guilty of an offence under this sub-section.

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