Report No. 254
A. Section 7: Definitions and Use of Language
|Section 7, PC Act, 1988||Section 7(1), 2013 Amendment||Section 2(1) UK Bribery Act|
|Any public servant who
||Any public servant who
||Any person who
2.3. The PC Act, 1988 made it an offence for a public servant to "accept, obtain, agree to accept or attempt to obtain" any gratification whatever, other than legal remuneration under certain circumstances. The amended Section 7(1) uses the terms "requests any person for, obtains, agrees to receive, accepts or attempts to obtain" any "undue financial or other advantage" for the "improper performance" of a "relevant public function or activity".
The changes proposed in the 2013 amendment seem to bring it line with the UK Bribery Act, which regulates corruption in the private sector as well, rather than with the UNCAC. This is problematic for a number of reasons.
2.4. The proposed section 7 now covers five types of acts by a public servant, namely requests any person for; obtains; agrees to receive; accepts; or attempts to obtain any undue financial or other advantage.
2.4.2. The 1988 formulation of section 7 included the words "accepts, obtains, or attempts to obtain", to which the 2013 amendment added "requests for" and "agrees to receive". These two phrases are lifted from section 2 of the UK Bribery Act (and not the UNCAC) without realising that the phrase "requests for" seems to already be criminalised under "attempts to obtain".
2.4.3. This amalgamation of five words/activities in section 7(1) thus, seems redundant. Instead of being clarificatory, it will only create confusion and interpretational disputes in the future.
2.4.4. Recommendation: The phrase "requests for" should be deleted from section 7(1)(a), (b), (c), (d) and Explanation 1 of the 2013 Bill.
2.5.1. The phrase "any gratification whatever, other than legal remuneration" was changed to "financial or other advantage", seemingly to bring it in line with section 2 of the Bribery Act. However, in 2014, this was substituted by a new phrase "undue financial or other advantage" throughout the Act, which was then defined under section 2(d) to "mean[s] 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)." The word "undue" seems to have been taken from the UNCAC's formulation of "undue advantage".
2.5.2. To put it simply, the UK Act talks about "financial or other advantage" while the UNCAC talks about "undue advantage", although neither Act/Convention define these phrases. The effect of the 2013 and 2014 amendments to the PC Act has been to combine these two formulations and introduce (and define) the phrase "undue financial or other advantage".
2.5.3. The proposed 2014 amendment seems to revert to the spirit of the 1988 formulation, without any clear explanation of the distinction attempted to be drawn, if any, between 'due' and 'undue' financial or other advantage.
Even otherwise, the "financial or other advantage" formulation seems narrower than the existing section 7 formulation of "any gratification whatever, other than legal remuneration". Unlike the 2013/2014 formulation, "gratification" has been defined by Explanation (b) of the existing section 7 of the 1988 Act to expressly "not [be] restricted to pecuniary gratifications or to gratifications estimable in money".
For example, it clearly covers sexual favours as "gratification" in return for the public servant to do/refrain from doing a certain act. However, "other advantage" in "financial or other advantage" being interpreted using ejusdem generis, does not seem to cover sexual favours in return for the public servant's acts or omissions. Thus, the proposed amendment is actually narrowing the scope of corruption, instead of the stated intent of expanding it.
2.5.4. A better, and more elegant, solution will be to rely on the UNCAC's formulation of "undue advantage" and define it using the original 1988 formulation in Explanations (b) and (c) of section 7.
2.5.5. Recommendation: The definition of "undue financial or other advantage" in section 2(d) should be deleted and the phrase "undue financial or other advantage" should be dropped from the entire Bill. Instead, it should be substituted with "undue advantage" throughout the 2013 Bill and the 1988 Act. Section 2(d) should now read as follows:
'(d) "undue advantage" means any gratification whatever, other than legal remuneration.
Explanation 1: The word "gratification" is not limited to pecuniary gratifications or to gratifications estimable in money.
Explanation 2: The expression "legal remuneration" is not restricted to remuneration paid to a public servant, but includes all remuneration which he is permitted by the Government or the organisation, which he serves, to receive.'
2.6.1. Section 7 repeatedly refers to the term "relevant" public function or activity borrowing from sections 2 and 3 of the Bribery Act's term "relevant function or activity". There are two problems with this formulation:
a. The term "relevant function or activity" has been included, and defined in section 3 of the Bribery Act, because the Act sought to punish private acts of bribery, but wanted to classify only some of them as punishable. This is not relevant in the Indian context because the PC Act only deals with corruption amongst public servants. Hence, the word "relevant" is not as useful.
b. Moreover, unlike section 3 of the Bribery Act which defines "relevant function or activity", the proposed section 7(2)(a) only defines "public function or activity", thereby creating unnecessary confusion about the use of "relevant".
2.6.2. Recommendation: The word "relevant", where it appears before "public function or activity" should be dropped from the entire Act.