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Report No. 254

B. Section 7(1) of the 2013 Bill

2.7.1. Section 7(1)(a) deals with situations where a public servant takes a bribe in return for performing a public function "improperly". On the face of it, thus, section 7(1)(a) does not seem to cover situations, which are very common in India, where public servants take bribes to perform their functions 'properly'. Conversely, section 7(1)(b) is a take off from section 2(3) of the Bribery Act and it is unclear as to what it seeks to convey and cover, especially when the Bribery Act covers private and commercial bribery as well, whereas this amendment is only for actions of public servants.

2.7.2. Section 7(1)(b), and its interplay with section 7(1)(a) can be understood only if one examines the kinds of situation the UK Parliament had in mind while drafting section 2. Since the Bribery Act was envisaged to cover public and private activities, the UK Law Commission viewed section 2(3) (or section 7(1)(b) of the 2013 Bill) as covering instances where "R, a civil servant, asks for £ 1,000 for himself to process a routine application."

This makes sense when seen in contrast with section 2(2) (or section 7(1)(a) of the 2013 Bill) where the illustration for improper performance is where "R asks P for £ 10,000 if he - R - or a colleague destroy supporting documents submitted by rival bidders for a contract P is seeking to secure with R's employer." 4

4. UK Law Commission, supra note 2, at xiii and iv

2.7.3. The Law Commission further goes on to state that in the UK, R (any person) may commit bribery in one of two main ways, both of which we have included under a single "umbrella" offence. Broadly speaking, first, R may offer to or actually engage in a misuse of his or her position in exchange for an advantage ("doing P a favour"). Secondly, R may misuse his or her position simply by asking for or accepting an advantage in the first place ("compromising R's position").

2.7.4. First, there are the "advantage in exchange for favour" cases. Under our recommendations:

(a) Either the advantage (or the prospect thereof) must be a reward for improper conduct, or

(b) the advantage (or the prospect thereof) must be requested, agreed to or accepted with the intention that improper conduct will be performed, or

(c) the improper conduct must be engaged in, in consequence of or in anticipation of, a request, agreement to or acceptance of the advantage.

2.7.5. Secondly, there are the "compromise of R's position" cases. Under our recommendations the request for, agreement to accept, or acceptance of the advantage must in itself constitute improper conduct.5

5. UK Law Commission, supra note 2, at ¶ ¶ 3.193-3.195

2.7.6. It is thus clear that first set of cases are covered by section 7(1)(a), (c), and (d) whereas the second set of "compromising R's position" cases are covered by section 7(1)(b) of the 2013 Bill. The intent of the UK Law Commission in distinguishing between the two sets of cases was that "where public office holders are concerned, it might be thought not to matter a great deal whether or not they misconduct themselves in exchange for an advantage. It is enough that they have misconducted themselves, whatever the reason was."6

6. Ibid., ¶ 3.218

2.7.7. By merely lifting the provisions of the UK Act, without understanding its scope and context or without providing any examples of how the PC Act might apply, the 2013 amendment only increases the ambiguity around the interpretation of the different components of the bribery offence under section 7. This can be resolved by providing an appropriate illustration to resolve the confusion around the word "improper".

2.7.8. However, the exact phrasing of section 7(1)(b) of the 2013 Bill still causes certain problems. First, it seems to comprise the "minimum morality" of entire section 7 offence insofar as it criminalises the mere act of obtaining/agreeing to receive/attempting to obtain.

If the mere asking for a bribe is made an offence, then the purpose of sections 7(1)(a), (c), and (d) seem superfluous, and should instead be re-numbered to subsume it within the main section. For instance, if a public servant asks for a bribe to process a routine application, it will be covered under section 7(1)(b). Section 7(1)(c), which criminalises public servants being rewarded for their actions, is then unnecessary.

2.7.9. Second, having four sub-sections seem to suggest that section 7(1)(a), (c) and (d) are required because there are certain cases, which are not covered by section 7(1)(b), or where the mere act of asking for a bribe is not a criminal offence. That cannot have been the intention of the Legislative in expanding the scope of the bribery offence under section 7.

2.7.10. Recommendation: Section 7(1) should be amended (keeping in mind the above suggestions) in the following manner:

(1) Any person, being, or expecting to be, a public servant who obtains or agrees to receive or accepts or attempts to obtain, an undue advantage from any person 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.

(2) Notwithstanding anything contained in subsection (1), any person, being, or expecting to be, a public servant who, -

(a) obtains or agrees to receive or accepts or attempts to obtain from any person, any undue advantage, intending that, in consequence, a public function or activity would be performed improperly either by himself or by another public servant; or

(b) obtains or agrees to receive or accepts or attempts to obtain, an undue advantage as a reward for the improper performance (whether by himself or by another public servant) of a public function or activity; or

(c) performs, or induces another public servant to perform, improperly a public function or activity in anticipation of or in consequence of agreeing to receive or accepting an undue from any person, 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.

Explanation 1. - For the purpose of sub-section (1), the obtaining, agreeing to receive, accepting, or the attempting to obtain an undue advantage itself constitutes the improper performance of a public function or activity.

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

2.8.1. At this stage it is necessary to refer to Explanation 5 in the 2014 amendment, where the terms "obtains" and "attempts to obtain" have been defined only for the purpose of section 7(1)(b) of the 2013 Bill. The proposed Explanation 5 reads as "for the purpose of clause (b) of this sub-section, the expressions "obtains" and "attempts to obtain" shall cover cases where a person being, or expecting to be a public servant, obtains or attempts to obtain, any undue financial or other advantage for another person, by abusing his position as a public servant or by using his personal influence over another public servant, or by any other corrupt or illegal means."

2.8.2. However, with the changes proposed to the formulation of section 7(1) of the 2013 Bill above, it is necessary to make certain changes to this proposed Explanation 5.

2.8.3. First, the proposed Explanation 5 defines the terms "obtains" and "attempts to obtain" for the purposes of section 7(1)(b) of the 2013 Bill. Since, as per the Commission's recommendations, section 7(1)(b) is now section 7(1), Explanation 5 has to be read in consonance only with the Commission's proposed section 7(1).

2.8.4. Secondly, the phrase "any undue financial or other advantage" should be replaced with the phrase "any undue advantage" in line with the Commission's recommendation above.

2.8.5. Thirdly, the Explanation only talks about the public servant using such advantage "for another person", and omits to include the phrase "for himself", which needs to be changed.

2.8.6. Fourthly, for the sake of clarification, the Explanation should also include the "acting in violation of a statutory duty or any set of rules, government policies, executive instructions and procedures" as part of the proscribed conduct.

2.8.7. Recommendation: Thus, the Commission recommends that the proposed Explanation 5 in the 2014 Bill should be deleted and re-introduced as Explanation 2 to section 7 of the 2013 Bill (given that the Commission next recommends the deletion of Explanation 2 to section 7(1) of the 2013 Bill) as follows:

Explanation 2: For the purpose of sub-section (1), the expressions "obtains" or "attempts to obtain" shall cover cases where a person, being, or expecting to be, a public servant, obtains or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by acting in violation of a statutory duty or any set of rules, government policies, executive instructions and procedures; or by any other corrupt or illegal means.

2.9.1. The proposed Explanation 2 to section 7(1) in the 2013 Bill is also problematic. It states that:

It shall be immaterial, whether such person being, or expecting to be, a public servant knows or believes that the performance of the public function or activity is improper or whether the public servant who is induced to perform improperly a relevant public function or activity knows or believes that the performance of the public function or activity is improper.

2.9.2. The Explanation is a combination of sections 2(7) and (8) of the Bribery Act, although it does not take into account the specific classes sections 2(7) and (8) seek to cover. For instance, section 2(7) of the Bribery Act states that it is immaterial "in cases 4 to 6", whether R knows or believes that the performance of the function or activity is improper. Thus, section 2(7) does not apply to Case 3 (under section 2(2) of the UK Act, and similar to section 7(1)(a) of the 2013 Bill), where R receives an advantage, intending that in consequence, a relevant function should be performed improperly.

2.9.3. The incongruity of Explanation 2 to section 7(1) in the 2013 Bill is evident because, unlike the Bribery Act, it applies to all cases. Moreover, it seems completely unnecessary and unclear in in the Indian context, given that the PC Act relates only to public servants, and defines "public duty" (and hence, "public servant") under sections 2(b) and (c) of the 1988 Act very broadly.

2.9.4. Recommendation: Explanation 2 to section 7(1) of the 2013 Bill should be deleted.

2.10.1. Explanation 4 to section 7(1) has omitted to cover any person "expecting to be a public servant".

2.10.2. Recommendation: The phrase "person expecting to be a public servant" should be inserted after the term "public servant" in Explanation 4 to section 7(1) of the 2013 Bill, now Explanation 3 as per the Commission's recommendations.



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