1
LEGAL IMMUNITIES UNDER THE LAW FOR
PUBLIC SERVANTS AGAINST PROSECUTION IN
CASES OF CORRUPTION
Dissertation submitted in part fulfillment for the requirement of the Degree
of
LL. M.
Submitted by Supervised by
Raj Kishor Kumar Dr. Vinod Kumar
National Law University
Delhi (India)
2014
2
LEGAL IMMUNITIES UNDER THE LAW FOR
PUBLIC SERVANTS AGAINST PROSECUTION IN
CASES OF CORRUPTION
Dissertation submitted in part fulfillment for the requirement of the Degree
of
LL. M.
Submitted by Supervised by
Raj Kishor Kumar Dr. Vinod Kumar
National Law University
Delhi (India)
2014
3
DECLARATION BY THE CANDIDATE
I hereby declare that the dissertation entitled “Legal Immunities under the Law for
Public Servants against Prosecution in Cases of Corruption” submitted at National
Law University, Delhi is the outcome of my own work carried out under the supervision
of Dr. Vinod Kumar, Assistant Professor of Law, National Law University, Delhi.
I further declare that to the best of my knowledge the dissertation does not contain any
part of work, which has not been submitted for the award of any degree either in this
University or any other institutions without proper citation.
……………………..
(Raj Kishor Kumar 23/LLM/2014)
National Law University, Delhi
Place:
Date:
4
CERTIFICATE OF SUPERVISOR
This is to certify that the work reported in the LL.M. dissertation entitled “Legal
Immunities under the Law for Public Servants against Prosecution in Cases of
Corruption”, submitted by Raj Kishor Kumar at National Law University, Delhi is a
bonafide record of his original work carried out under my supervision. To the best of my
knowledge and belief, the dissertation: (i) embodied the work of the candidate himself;
(ii) has duly been completed; and (iii) is up to the standard both in respect of contents
and language for being referred to the examiner.
…………………..
(Dr. Vinod Kumar)
(National Law University, Delhi)
Place
Date
5
LIST OF ACRONYMS &ABBREVIATIONS
AIR All India Reporter
Cr. L.J Criminal Law Journal
CVC Central Vigilance Commissioner/Commission
CBI Central Bureau of Investigation
CrPC Code of Criminal Procedure
DSPE Delhi Special Police Establishment
HDI Human Development Index
IPC Indian Penal Code
MP Member of Parliament
MLA Member of Legislative Assembly
PCA Prevention of Corruption Act
SCC Supreme Court Cases
SPE Special Police Establishment
UNCAC United Nations Convention against Corruption
UNDP United Nations Development Program
v. Versus
6
LIST OF CASES
1. A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531, pp.46, 91, 92, 94, 96.
2. Addl. Director General v. CBI AIR 2012 SC 1890, pp.80, 82.
3. Anil Kumar & Ors v. M. K. Aiyappa & Anr (2013) 10 SCC 705, p.91
4. Anjani Kumar v. State of Bihar and Ors. AIR 2008 SC 1992; p.85
5. Balakrishnan Ravi Menon v. Union of India 2007 (1) SCC 45, p.96
6. Balkrishna Kulkarni v. State of Maharashtra (1985) 3 SCC 606, p.78
7. Biswabhushan Naik v State of Orissa AIR 1954 SC 359, p.93
8. Brend v. Wood (1946) 175 LT 306 1946, p.57
9. Brijendra Singh v. State of U.P. &Ors., AIR 1981 SC 636, p.80
10. Baijnath v. State of M.P AIR 1966 SC 220, p.83
11. C.R. Bansi v State of Maharashtra 1970 SCC 537, p.94
12. CBI v Rajkumar Jain 1998 SCC (Cri) 1485, p.89
13. Center for Public Interest Litigation and Anr. v. Union of India and Anr. AIR
2005 SC 4413; p.85
14. Common Cause, a registered Society v. Union of India and Ors (1996) 6 SCC
593, p.99
15. Deena (Dead) through Lrs. v. Bharat Singh (Dead) through LRs. &Ors.,
(2002) 6 SCC 336, p.79
16. Dhaneshwar Narain Saxena v. Delhi Administration AIR 1962 S.C 195, p.33
17. Dr. Subramanian Swamy v. A. Raja AIR 2012 SC 3336, p.60
18. Dr. Subramanian Swamy v. Director, Central Bureau of Investigation & Anr
AIR 2014 SC 2140, pp.36, 38, 45
19. Dr. Subramanian Swamy v. Manmohan Singh and Anr. (2012) 3 SCC 64,
pp.64, 101
20. Emperor v. Jehangir Cama AIR 1927 Bom 501, p.86
21. Emperor v. Govindram 45 Cri LJ 64, p.76
22. F v. Els 1972 (4) SA 696 (T), p.59
23. G.A.Monterio v. State of Ajmer AIR 1957 SC 13, p.76
24. General Officer Commanding v. CBI AIR 2012 SC 1890, p.84
25. General Medical Council v. Spackman 1943 AC 627 at 644, p.103
26. Gokulchand Dwarkadas Morarka v. The King AIR 1948 PC 42, pp.86, 92
7
27. Goondla Venkateshwarlu v. State of Andhra Pradesh &Anr., (2008) 9 SCC
613, p.79
28. Habeebullah v State of Orissa AIR 1995 SC 1123, pp.95, 96
29. H.H.B.Gill v. King Emperor AIR 1948 PC 128, p.85
30. Indo China Steam Navigation Co. Ltd vs. Jasjit Singh, Additional Collector of
Custom and Ors. AIR 1964 SC 1140, p. 60
31. Jaipur Development Authority v. Daulat Mal Jain 1997 (1) SCC 35, p.68
32. Jaswant Singh v State of Punjab AIR 1958 SC 124, p.94
33. Justice Ripusudan Dayal (Retd.) & Ors. v. State of M.P and Ors. AIR 2014
SC 1335, p.76
34. Joel Paulus v. The State, case no. CA 24/2009, Namibian High Court,
35. Kartar Singh v. State of Punjab 1994 3SCC 569, p.60
36. K. Karunakaran v. State of Kerala 2007 (1) SCC 49, pp.96, 99
37. K. Veeraswami v. Union of India and Ors (1991) 3 SCC 655, p.38
38. Kunal Majumdar v. State of Rajasthan (2012) 9 SCC 320, p.60
39. Lalu Prasad Yadav v State of Bihar 2007 (1) SCC 59, pp.96,99
40. Lloyd v. Mc Mohan 1987 AC 625, p.103
41. Madan Mohan Singh v State of UP AIR 1954 SC 637, p.94
42. Madhav Rao Scindia Bahadur Etc. v. Union of India & Anr., AIR 1971 SC
530, p.79
43. Madhavrao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu & Ors.,
AIR 1958 SC 767, p.79
44. Major J Phillips v State, AIR 1957 Cal 25, p.93
45. Manish Trivedi v. State of Rajasthan AIR 2014 SC 648, pp.77,78
46. Maneka Gandhi v. UOI 1978 AIR 597, p.103
47. Manzoor Ali Khan v. Union of India AIR 2014 SC 3194, p.99
48. Manmohan Singh v. Subramanian Swamy 2012(2) Crimes 214, p.102
49. Mohd. Iqbal Ahmad v. State of Andhra Pradesh AIR 1979 SC 677, p.95
50. Matajog Dobey v. H.C. Bhari AIR 1956 SC 44, p.99
51. Narayanan Nambiar v. State of Kerala AIR 1963 SC 1116, p.32
52. N. Brahmeswara Rao v. Sub Inspector of Police, 1978 AIR 718, p.97
53. New Horizon Ltd v. UOI (1995) 1 SCC 478, p.103
54. P.V.Narsimha Rao v. CBI AIR 1988 SC 2120, p.79
55. PP Unnikrishnan and Anr. v. Puttiyottil Alikutty Anr 2000 (8) SCC 131, p.93
8
56. Prakash Singh Badal v. State of Punjab 2007 (1) SCC 1, pp.82, 96, 99
57. Premchand Somchand Shah v. UOI 1991 (2) SCC 4, p.98
58. R. Balakrishna Pillai vs. State of Kerala, AIR 1996 SC 901, pp.84,85
59. R.R. Chari v State of UP AIR 1962 SC 1573, pp.91,93
60. R.S. Joshi, Sales Tax Officer, Gujarat and Ors. v. Ajit Mills Ltd. And Anr
1977 (4) SCC 98, p.60
61. Rakesh Kumar Mishra v. State of Bihar and Ors. AIR 2006 SC 820; p.85
62. Ram Krishan v. State of Delhi AIR 1956 S.C 476, p.33
63. Rao Shiv Bahadur Singh and Anr. v. The State of Vindhya Pradesh AIR 1953
SC 394, p.43
64. S v. Martiz 2004 NR 22 HC, p.58
65. S v. Maseka 1991 NR 249 HC, pp.59,60
66. S v. Zemura 1974 (1) SA 584 (R,AD), p.58
67. S. Banerjee v State AIR 1951 Cal 388, p.93
68. S.B. Saha vs. M.S. Kochar, AIR 1979 SC 1841, p.83
69. S.K. Zutshi and Anr.v. Bimal Debnath and Anr. AIR 2004 SC 4174; p.85
70. Sewakram Sobhani v. R.K. Karanjiya, Chief Editor, Weekly Blitz &Ors., AIR
1981 SC 1514, p.79
71. Shiv SagarTiwari v. Union of India and Ors (1996) 6 SCC 599, p.99
72. Shashikant Laxman Kale v. UOI (1990) 4SCC 366, 372, p.99
73. Srinivasa Co-operative House Building Society v. Madam Gurumurthy Sastry
1994 (4) SCC 675, p.67
74. State of Himachal Pradesh v. M.P.Gupta 2004 SCC (Cri) 539, p. 83
75. State of M.P. and Ors. v. Ram Singh (2000) 5 SCC 88, p.45
76. State of Madhya Pradesh v. Sheetla Sahai and Ors. (2009) 8 SCC 617, p.85
77. State of Maharastra v. M.H.George 1965 AIR 722, pp.59,60
78. State of Maharastra v. Budhi Kota Subha Rao 1993(1) Crimes 1124 (SC),
p.102
79. State of Tamil Nadu v. T. Thulasingam and others AIR1995 SC1314, p.95
80. State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372, p.90
81. State of West Bengal v. Mohd. Khalid (1995) 1 SCC 684, p.90
82. The State of Ajmer (Now Rajasthan) v. Shivji Lal AIR 1959 SC 847, p.34
83. V.S. Achuthanandan v State of Kerala &Anr. 2007 (1) SCC 61, p.96
84. Vijay Kumar Rampal & Ors. v. Diwan Devi & Ors., AIR 1985 SC 1669; p.79
9
85. Vineet Narain and Ors. v. Union of India and Anr. (1998) 1 SCC 226, p.46
86. Virendra Singh and Ors. vs. The State of Uttar Pradesh AIR 1954 SC 447,
p.102
87. State of West Bengal v. Abni Kumar Banerjee AIR 1950 Cal. 437, p.92
10
TABLE OF CONTENTS
TITLE Page
No.
LIST OF CASES 7
CHAPTER -1 12
1. INTRODUCTION 12
2. MEANING OF “CORRUPTION” 15
3. CAUSES OF CORRUPTION 18
4. EFFECTS OF CORRUPTION 20
4.1 CORRUPTION, SOVEREIGNTY AND HUMAN RIGHTS 22
5. CONCEPTUAL CONTEXT 23
5.1 LITERATURE REVIEW 23
5.2 STATEMENT OF PROBLEM 26
5.3 RESEARCH QUESTION 27
5.4 OBJECTIVE 28
5.6 HYPOTHESIS 28
CHAPTER-2
1. LEGISLATIVE HISTORY OF ANTI-CORRUPTION LAW 29
2. INTIAL LEGAL MEASURE 31
2.1 SPE, 1941 AND DSPE, 1946 35
2.2 PREVENTION OF CORRUPTION ACT,1947 38
2.3 REPORT ON PUBLIC ADMINISTRATION (A.D.
GORWALA),1951
39
2.4 REPORT OF A SURVEY ON PUBLIC ADMINISTRATION
IN INDIA (PAUL H. APPLEBY),1953
41
2.5 COMMITTEE ON PREVENTION OF CORRUPTION (K.
SANTHANAM),1964 & COMMITTEE ON PREVENTION OF
CORRUPTION, 1985
42
2.6 PREVENTION OF CORRUPTION ACT, 1988 44
11
2.7 PREVENTION OF CORRUPTION (AMENDMENT) BILL,
2008
47
2.8 PREVENTION OF CORRUPTION (AMENDMENT) BILL,
2013
48
2.9 LOKPAL, 2013 56
CHAPTER-3: CORRUPTION AND MENS REA
1. CONCEPT OF MENS REA 57
2. DOCTRIN OF STRICT LIABILITY, CORRUPTION AND
MENS REA
59
CHAPTER-4: PUBLIC SERVANTS
1. WHO IS PUBLIC SERVANTS 72
2. OFFICIAL DUTIES AND GOOD FAITH 79
CHAPTER-5: OFFICIAL DUTY AND SANCTIONS
1. OFFICIAL DUTY 82
2. SANCTION FOR PROSECUTION 85
2.1 GRANTING SANCTION FOR PROSECUTION 86
2.2 TAKING COGNIZANCE 90
2.3 PREREQUITE FOR SANCTIONS 92
2.4 GRANTING SANCTION 94
2.5 CONSTITIONAL VALIDITY OF SANCTION 97
2.6 LOCUS STANDI FOR SANCTION APPLICATION 101
2.7 SANCTION AND RETIRED PUBLIC SERVANT 102
2.7 SANCTION AND JUDICIAL REVIEW 103
CHAPTER VI: SUMMATION, CONCLUSION & RECOMMENDATION 105
BIBLIOGRAPHY
Books 114
Statutes 115
Reports/Articles/Papers 116
12
CHAPTER I
1. INTRODUCTION
A management expert writes of an experiment. Take a frog, he says. Throw it into pot
of boiling water. It will be shocked and instantly jump out of the water. It will get
scalded but will survive. Now, take a frog and put it in a pot with water at room
temperature. Bring the water to boil gradually. The frog will get accustomed to higher
and higher temperature. It will sink into unconsciousness and will be eventually
boiled down to death. We are that frog getting accustomed to worse and worse of the
conduct of public life to the winding down of our institution of democracy. This water
temperature is the challenges that we are facing currently. This is in the form of
institutionalized corruption. The normal citizenry has become the frog.
This has been used as a metaphor over a century and is highly acclaimed for its
didactic value serving as caution for people to be aware of even gradual change or
they meet the unfortunate predicament due to their acclimatization. It also refers to
the inability or unwillingness of people to react to threats that occur gradually which
causes the people to become complacent and grudgingly become accepting as the fact
of life. Not long ago, in public life, the corruption was not seen as serious threat to the
public morality or the fabric of the democracy but it all changed when the impunity in
form of scams, embezzlement and illegal gratification brought the national
consciousness to boil in 2011 when an septuagenarian social activist started fast to
move the government as out of its apathy and take concrete action towards corruption.
There is no scarcity of opinion among experts and opinion leaders who felt that
corruption had a functional role to play in the society. Some economists argued
corruption lubricated the wheels of government and the then Chief Economic Adviser
to Government of India, Kaushik Basu1, argued for the legalization of bribery to
control in India in a working paper published on the website of Ministry of Finance.
This paper brought the high decibel debate as to the functional value of bribery i.e.
useful role by cutting the red tape and expediting the decision making by the
1Kaushik Basu ,“Why, for a Class of Bribes, the Act of Giving a Bribe should be Treated as Legal”,
March 2011,Chief Economic Adviser, Ministry of Finance, Government of India
http://www.kaushikbasu.org/Act_Giving_Bribe_Legal.pdf
13
government functionaries thus moving the rusted, otiose machinery of the
government.
The new millennium ushered in a sea change in the attitude of examination of
corruption by the civil society, including the economists and social scientists, view the
problem of corruption which is evidenced by the radical suggestion of Kaushik Basu
who suggested it to be regulated and shifting the onus of guilt rather than simple
conviction. The corruption in India has ripple effect and the news of the corruption is
more symptomatic rather than anything else. Transaction costs of economic activities,
including the investments, are raised by corruption. The civil society is strongly
convinced that corruption is unjust, unfair, and unethical which has strong effect on
the poor people.
The Indian history of corruption like our civilization goes back in ancient times. In a
comprehensive treatise on public administration and statecraft in ancient India
(Arthashastra), it is believed that Kautilya has perceptibly written in fourth century
BC. The proof is Kautilya's Arthashastra, by far the best and most comprehensive
work on the subject in question. Kautilya said that since detection of corruption was a
difficult job, the rulers should employ intelligent persons for this work. He was quite
prophetic in terms of behavior of the government servants.
Kautilya remarked sharply that as it’s impossible to ascertain whether the fish living
in water is also drinking it, similarly for the public servants employed in
governmental machinery are also taking the money for themselves which is difficult
to ascertain.
Kautilya is also credited with having listed in detail ‘forty different ways of
embezzlement’. We have just perfected the same in the modern times as illustrated by
the sophistication and modus operandi of the present day scams and scandals.
Corruption is also one of the most elastic words in English which has variegated hues
in different times and different places. Though many definitions of corruption are in
vogue, the simplest of them is misuse of public power for private profit. Ideas about
corruption within the same society also vary according to group differences and self-
interest. We have therefore to consider only such forms of corruption generally
common within a society and sometimes across societies, too.
14
Today, corruption as a phenomenon pervades different spheres of society. When we
consider the different aspects of society and administration we come to the conclusion
that family and administration are the two starting points of corruption, and of the two
the administration is its main breeding ground, as in all ages the lives and liberties of
the individuals as well as the society have been more or less dependent upon the
administration — civil and judiciary. From this it naturally follows that if the society
and the government or administration justifies their purpose for which they were
brought into existence, we may then hope for a world free from corruption. If the
government is corrupt, society is bound to be corrupt and if the society is corrupt,
corruption is sure to pervade different walks of individual's life. It has been rightly
said that administration indirectly shapes the body and mind of a man, who is a
product of a combination of forces at work in administration and society. No man is
born corrupt, but then he is not immune from the various influences either, which
different institutions exert upon his mind and accordingly shape his future growth. In
other words, an honest administration generally produces honest citizens whereas a
corrupt administration generates in them the sinister trend of taking to corrupt
practices to achieve their objectives, giving way to all ruined degeneration in the
society.
The legal response to corruption since independence has been through specific statute
which deals with the ‘prevention’ of corruption act going by the name given. Over
the years, the net cast by the statute went on increasing and by interpretation
Supreme Court held a wide range of people as public servants indulging in
corruption.
The Statutes dealing with corruption, the Criminal Procedure Code and specific state
laws have clause of taking prior sanction from government either Central government
or state government before the prosecuting agency can proceed towards corruption.
As remarked by Supreme Court, the safeguard was with intention to provide
protection against the vexatious prosecution to the public servants and prevent
malicious prosecution and harassment for their discharge of official duty. In spite of
such benign intention, in reality as illustrated in Supreme Court by Public Interest
Litigation that former Chief Ministers, Union Ministers and State Ministers, who are
quite influential and politically well-connected, were not granted sanction for
corruption by competent authority.
15
2. MEANING OF “CORRUPTION”
The legal definition of corruption is country specific and there is no universal
definition which can be used to identify a corrupt behavior. The World Bank and
other multilateral institution refer to it as “the abuse of Public Office for private gain.2
It involves the seeking or extracting of promise or receipt of a gift or any other
advantage by a public servant in consideration of the performance or omission of an
act, in violation of the duties required of the office. Mark Philip, a political scientist,
identified three broad definitions of corruption, i.e. Public office centered, Public
interest centered and market centered.3
(i) The Public office centered corruption- It is an act or series of acts that
depart from the formal public duties of an official for reasons of
private profit. Joseph Joseph Samuel Nye, Jr. who is an American
political scientist, provides an example of a public office centered
definition of corruption:
“Corruption is a behavior, which deviates from the formal duties of a
public role because of private regarding (Personal, close family,
private oblique) pecuniary status gain; or violates rules against the
exercise of certain type of private regarding influence. This includes
such behavior as bribery (use of reward to pervert the judgment of a
person in a position of trust; nepotism (bestowal of patronage by
reason of ascriptive relationship rather than merit); and
misappropriation (illegal appropriation of public resources for private
regarding uses)”4
(ii) The public office interest centered corruption: It has negative effect on
the welfare of people. In the words of Carl Freidrich, “whenever a
power holder, who is charged with doing certain things, is by monetary
or other rewards not legally provided for, induced to take actions
2 Published by Transparency International World Bank in Financial Times, September 16, 1997
3 Mark Philip, “Defining Political Corruption” Political Studies, Vol 45 No. 3, special issue1997
4 J.S. Nye, Political Corruption: A Cost Benefit Analysis in A.J. Heidenheimer, M. Johnston and
V.L.Vine (ed.), Political: A hand book, 1989 p. 966 as referred in “The Asia Foundation Working
Paper Series, 1998 p.10
16
which favor whoever provides for the rewards and thereby does
damage to the public and its interest.”5
(iii) The market centered corruption: Use of an economic methodology as a
means to gain influence over the decisions of the bureaucracy.
Accordingly, “for a civil servant who regards his office as a business,
the office becomes the maximizing unit”.6
These three different types of corruption have been used as a basis for examining
Political corruption in Heidenheimer’s political corruption (1970). But the most
realistic definition adopted by Transparency International and Asian Development
bank is the “misuse of public office for private profit or political gain.” It covers all
kind of corruption or corrupt practices and act of abuse of public offices. To combat
corruption, the World Bank has identified specific abuses of public office for private
gains, which are as follows:-
Syed Hussein Alats7 defines corruption as abuse of trust in the interest of private gain
and identifies six types of corruption. These are:
(i) Transactive corruption
(ii) Extortive corruption
(iii) Investive corruption
(iv) Nepotic corruption
(v) Autogenic corruption
(vi) Supportive corruption
(i) Transactive corruption: “It is an agreement between a donor and
recipient pursued by them for mutual benefit.”8
(ii) Extortive corruption: “It entails some sort of coercion to avoid the
infliction of injury on the bribe giver.”9
5See id. At P.10
6.Naphaniel Leff, ”Economic Development through Corruption “ in Heidenheimer id at p.389.
7Syed Hussein Alats Corruption: Its nature, causes and consequences, Aldersopt, Brookfield, vt., USA
Avebury,1990,pp3-4 8 ibid
9 ibid
17
(iii) Investive corruption: “It involves the offer of benefits without a direct
and immediate link but in the hope of future gain in which favor may be
required.”10
(iv) Nepotic corruption: “where friends and relatives are favored in
appointment to public offices.”11
(v) Autogenic corruption: “This type of corruption is inherent where
decision making is involved and delayed dissipation of decision pertaining
to Public Policy is the main reason of the growth of such type of
corruption. In such type of corruption single individual earns profit from
inside knowledge of policy outcome. It is predominant at the level of
ministry.”12
(vi) Supportive corruption: “It refers to the protection or strengthening of
existing corruption often through the use of intrigue or violence.”13
Act of corruption cannot be seen in isolation. It has multiple effects. It patronizes
support and promotes other crimes as it makes the offender behave boldly. Black
money generated out of corrupt practices has enormous potential to run a parallel
system to the state machinery. It simply has potential to influence the selection and
appointment of top hierarchy. Even, the results of elections are determined by the
amount of influx of unaccounted political funding and make mockery of complete
democratic process of election of people’s representatives. Actually, black money is
biggest hurdle in the implementation of true democracy as it influences the choice of
selection of the voters and promotes incompetent decision maker in the governance.
After coming into power, they are the one who make bias decisions and formulate
policies which are detrimental to the growth and prosperity of the nation. They are the
one who promotes the officials of similar characters in the system of governance with
the purpose to make their black business easy and organised. By virtue of their
patronage, decision making hierarchy becomes corrupt and then it flows down the
chain in the system. Those who are not fitting into their motive are either made wise
by them or they are cornered in the system where they finally give up and pay humble
submission to the hierarchy up the chain. Black money generated out of smuggling,
10
ibid 11
ibid 12
ibid 13
ibid
18
illegal arms trade, weapon deals, tax evasion by the corporate houses, trade based
money laundering, organized crime, counterfeit currency, drug trade, human
trafficking, corruption and bribery are invested in politics.14
Corruption and black
money gives life to each other.
3. CAUSES OF CORRUPTION
There are different shades of corruption. Throwing weight of the office to which an
individual is holding for the purpose of demanding an undue privilege is a passive
form of corruption. Ego, self thinking, arbitrary exercise of discretion and intellectual
dishonesty in decision making by a public servant is another form of corruption which
is often noticed in the court’s judgment and policy making process of the government;
sometimes, a voluntary act of corruption by senior high ranking official becomes
compulsion for the subordinate officers. There is hardly any provision exists under
PCA, 1988 which can bring such boss to the book. Sometimes, under the influence of
society and family, an official is forced to opt for it or sometimes, it may have the
combination of all the factors compelling the official to act in contradiction to the law.
High cost of living and lack of social security provisions in the country have
generated tendency of wealth accumulation for future needs and such insecurity about
post retirement life coupled with withdrawal of full pension scheme from public
sector enterprises and government services, compel the officials to indulge in corrupt
practices. There are many causes of corruption at social level, institutional level 15
and
also at individual level. Experts have highlighted numbers of factors, e.g. decline in
public morality, crisis of resources, changing sociology coupled with fluctuating
values to fulfill the material needs, decline in religious beliefs, divergence between
formal rules and informal departmental norms. Robert Klitgaard, a political scientist,
has conceptualized the opportunity for corruption within an institution in the
following formula:-
“Corruption= Monopoly x Discretion”16
Accountability
14
Dr Andrew Sanchez; Corruption in India, LSE IDEAS SR 010 March 2012, p.50 15
Robert Klitgaard, Controlling Corruption Berkeley; University of California Press, 1988, p.75 16
16
Robert Klitgaard, Controlling Corruption Berkeley; University of California Press, 1988, p.75
19
According to him:-
“The opportunity for corruption is a function of the size of the rents under a
public official’s control (monopoly), the discretion that official has in
allocating those rents (discretion) and the accountability that these official
faces for his or her decision.”17
The empirical research done by Daniel Kaufmann and Jeffrey Sachs suggests that
there is a complex set of the determinates of corruption, e.g. poor institutions
(including the rule of law and safeguards for the rights of property), civil liberties,
governance (including the level of professionalization of the administrative services)
and economic policies as also characteristics like the size of the country which seem
to play an enabling role for corruption.18
Along these lines, the World Bank points out
both institutional and economic policy factors which generate a nourishing
environment for corruption. It states that corruption thrives:
“Where distortion in the policy and regulatory regime provide scope for it
and where institutions of restraint are weak. The problem of corruption lies
at the intersection of the public and the private sectors. It is a two way
street. Private interests, domestic and external, wield their influence
through illegal means to take advantage of opportunities for corruption and
rent seeking, and public institutions succumb to these and other sources of
corruption in the absence of credible restraint.”19
Thus scope for corruption exist-
(i) Whenever public servants have huge discretionary power to
exercise coupled with proportionally very less or almost negligible
accountability for their decisions and actions taken with their
official capacity.
(ii) Whenever policy makers knowingly or unknowingly leave some
gap, then these gaps facilitates opportunities for middle men or
active players of corruption;
17
ibid 18
Asia Foundation working paper series on corruption prepared by Amanda L. Morgan, consultant
Asia Foundation p.50 19
World Bank Report, 1997
20
(iii) Such opportunities also develop due to lack of transparency which
curtails the accountability and answerability of Public Servant and
creates conducive environment for corruption, lobbying and
insularity from people’s governance.
Hence such root cause of corruption has to be properly understood for the
purpose of finding effective solution.
4. EFFECTS OF CORRUPTION
Corruption impedes development significantly in South Asia.20
South Asian
countries are among the poorest nations in the world, as demonstrated by the UN
Development Program (UNDP) in its Human Development Index (HDI)
publishing in the Humane Development Report 2014. The latest HDI ranking of
countries in South Asia (as of 2014) are: India, 135; Sri Lanka 73; Pakistan 146;
Bangladesh 142, Nepal 145; out of 195 countries that have been ranked. The
development of countries depends directly on the availability of resources and its
efficient use for the purpose. But the resources that are supposed to be utilized for
fulfilling development objectives are wasted due to corruption. The research
generally shows that countries can derive a very large “development dividend”
from better governance. We estimate that a country that improves its governance
from a relatively low level to an average level could almost triple the income per
capita of its population in the long term, and similarly reduce infant mortality and
illiteracy.21
The very conception of legal corruption has taken form under Dr.
Kaufmann and Pedro Vicente who made comparative study of corruption and its
effects across countries in most of the continents. “Legal corruption” connotes the
processes which are legal but are aimed at gain of private rather than for being the
benefit of the people i.e. welfare of people. The format and depth of legal
corruption differs which is also associated with financing the campaign where not
all the money is accounted. Election Commission of India has taken note and is
coming down heavily.
20
C. Rajkumar, “Corruption in Japan”. 21
Daniel Kaufmann, ’Back to Basics’: 10 Myths about Governance and Corruption, 42 fin & Dev. 41,
41 (2005).
21
The development of South Asian countries to a large extent depends upon the
economic policy and its impact on society. Corruption affects both these aspects
in a number of ways.22
It affects economic growth and discourages foreign
investment which aggravates the misery of the country and facilitates environment
for exponential growth of corrupt practices in the system. Inefficiency and
inequity in resources allocation is another by product of corruption which
facilitates the growth of general dissatisfaction and mistrust about the governance
among the people and may lead to mass unrest and anarchy.
Corruption creates a major hurdle to access to justice. In most of the countries, the
judiciary is one of the most important institutions directly involved in ensuring
access to justice.23
There are quasi- judicial institutions which are supplementing
the judicial functions. If these judicial and quasi-judicial set up are incapable to
adequately respond to corruption, then the fundamental fabric of access to justice
is undermined.24
The existence of corruption free institutions is mandatory
requirement for ensuring access to justice. The efficiency of government and its
functioning will, to a large extent, depend upon its ability to translate sound
policies into well excellent ones.25
Particularly in developing countries due to
poverty, lack of awareness and illiteracy, part of the population are actually able
to approach the institutions and process designed to facilitate accessibility to
justice. If these systems are inflected by corruption and acquired notoriety for it,
then the people themselves may not have trust and confidence existing judicial
system which may make them dependent on any alternative system for their
dispute settlement. These alternative systems sometimes become more powerful
then the state established system with their limited area influence and may result
22
“Corruption in Japan: Institutionalizing the Right to Information, Transparency and the Right to
Corruption-Free Governance”, Volume 10, Number 1, May 2004,NEW ENGLAND JOURNAL OF
INTERNATIONAL AND COMPARATIVE LAW, New England School of Law, United States of
America. 23
Ramaswamy Sudarshan, ‘Rule of Law and Access to Justice: Perspective from UNDP Experience’,
Paper presented to the European Commission Expert Seminal on Rule of Law and the Administration
of Justice as part of Good Governance, Brussels (2003) 24
Ptter Langseth and Oliver Stolpe,’ Strengthening Judicial Integrity against Corruption’ (UN Global
Programme Against Corruption, Centre for International Crime Prevention, 2001), available at
http://www.unodc.org/pdf/crime/gpacpublication cicp 1, pdf last visited on 21 May 2015. 25
Sunil Sondhi, ‘Combating Corruption in India: The Role of Civil Society’, paper for VIII world
conference of the International Political Science Association (2000),
http://www.sunilsondhi.com/resources/combatingcorruption.pdf (last visited 13 May 2015)
22
into parallel governance.26
An influenced judgment making process adversely
affects those who receive legal aid or legal support from the state. In case, they are
poor and unable to pay bribe, then in such case, access to justice becomes mere
facade for them. “Access to justice” has two aspects: one is from the view point of
those who are dispensing justice and other is from the stand point of the actual
beneficiary of this process. Therefore, it is required to address the ability to
develop internal mechanism of oversight and superintendence within the
institutions of state so that transparency and accountability are maintained.27
Corruption in health facilities and pharmaceutical business are another big
challenge for the society. It poses threat to right to life which has been recognized
as one of the fundamental rights under article 21 of the Constitution. Due to
corruption in this sector, substandard medicines having relatively higher side
effects are sold in the market. The medicines which have been banned in many
developed countries are sold in Indian market. Lifesaving drugs is duplicated or
sold at higher rates which sometimes become unaffordable to the considerable
portion of the population. Corruption in medical education system, organ trade,
Pilferage of psychotropic drugs, corruption in procurement of medical equipments
and facilities are another important issue which requires serious attention by the
state exchequers and law enforcement agencies.
4.1 CORRUPTION, SOVEREIGNTY AND HUMAN RIGHTS
Exercise of sovereign power by the state is affected due to adverse decisions of
compromised politicians and bureaucrats which is detrimental to the interest of
sovereign power. Corruption in the state machinery disables the full capacity of
state to perform its function due to rogue law enforcement agency. Corruption
may affect national security. It is a self induced method of subversion and renders
26
In Indian context, the Vohra Committee Report has observed: A network of mafias is virtually
running a parallel Govt. pushing the state apparatus into irrelevance……these has been a rapid spread
and growth of criminal gangs, armed senas, drug mafias, smuggling syndicates and economic lobbies
in the country, which have over the years developed an intensive network of contacts with bureaucrats,
govt. functionaries at local level, politicians, media persons and strategically located individuals in non
state sector. 27
Deepa Mehta, “Tackling Corruption: An Indian Perspective”. Available at
http://www.unafei.or.jp/english/pdf/RS_No66/No66_11VE_Mehta2.pdf, last accessed on 09 June,
2015
23
the state officials ineffective which may jeopardize the security of state.
Corruption in security agencies may pose threat to the state sovereignty and
citizens rights. A sovereign state supposes to ensure that law of the land is
enforced without any unwarranted discrimination. But a compromised law
enforcement agency of the state does not allow it to happen which results into
legitimacy crisis within the institutions of governance. Therefore corruption is a
human right issue and need to be dealt in that perspective.
The corruption is not just a third world problem or is concentrated to the developing
nations like India. It’s a global phenomenon and the root of corruption knows no
geographic bounds. The developed nations have institutionalized and perfected the art
of corruption. It’s called lobbying and it has now attracted the attention of the
Organisation for Economic Co-operation and Development who have framed
guidelines “The 10 Principles for Transparency and Integrity in Lobbying”28
for the
same calling for integrity and transparency. Corruption is cancerous to the society and
voilates all human rights. There has to be more transparency and more speed in the
way they function will bring confidence in the people. The issue of corruption has
caused widespread uneasiness and is being discussed throughout the country.
5.1 CONCEPTUAL CONTEXT
It is pertinent that for uninterrupted functioning of government machinery, certain
amount of legal safe guard against prosecution is given to public servants. There is
provision of sanction for prosecution of public servant in different statutes provided
under domestic legal frame work.
28
http://www.oecd.org/corruption/ethics/Lobbying-Brochure.pdf
24
5.2 LITERATURE REVIEW
The above analysis of administrative corruption is not drawn from any survey
research or questionnaire based study on the study of mainly the case laws dealing
with corruption and literature on corruption.
Every official, from the Prime Minister down to constable or a collection or taxes is
under the same responsibility for every act done without legal justification as any
other citizen. The report abounds with cases in which officials have been brought
before the courts and made in their personal capacity, liable to punishment or to the
payment of damages for acts done in their official character but in excess of their law
authority. Equality before the Law is one of the very fundamental principle of Rule of
Law. (Dicey, 1885)
The political and bureaucratic process at work and assessed legal and institutional
reforms needed to combat corruption. The propensity for corruption in any society
can be controlled only by systematic reducing the incentives and opportunities to
engage in corrupt practices. They have presented four action areas like reform of the
political process, restructuring and reorienting the government machinery,
empowerment of citizens and creating sustained public pressure for change, as the
essential building blocks for a national agenda for the control of corruption. (Paul,
2013)
The author has also meticulously tried to focus the three kinds of administrative
sources like-political process and administrative reform agency to check corruption. .
(Maheshwari, 1993)
It has chapters on how the sanction is granted, the mode, manner and method of grant
of sanction, the offences under the anti-corruption law. It also deals with judicial
understanding of offences and penalties in Prevention of Corruption Act, 1988.
( Ramakrishna, 2003)
Corruption is being a grave violation of human rights and legislative and institutional
reforms can be taken up for the addressing the same. (Kumar, 2011)
25
Section 197 of Crpc deals with the requirement of sanction prior to prosecution of
public servants. Book explains the word Public Servant, Official duty and deals with
the various aspects of sanction in the light of case laws. (Sarkar, 2007)
Objectives and reasons of “The Prevention of Corruption (Amendment) Bill”, 2013
make it clear that it is an outcome of India’s ratification of the United Nations
Convention Against Corruption in May 2011. The definition of “undue financial or
other advantage” in section 2(d) should be deleted from the entire Bill and should be
replaced by the word “undue advantage” which will widen the purview of offence
which can be tried under this act. (254th
report, Law Commission of India)
Law Commission of India in its 166th
report of 1999, which it had taken up suomoto
deals with radical suggestion to deal with corruption that is forfeiture of the property
of the public servant indulging in corruption. The report gave its recommendations on
Corrupt Public Servants (Forfeiture of Property) Bill, 1999.
No court shall take cognizance of an offence punishable under section 7, 10, 11, 13
and 15 PC Act alleged to have been committed by a public servant except with the
previous sanction. (Section 19, Prevention of Corruption Act, 1988)
The Lokpal and the officers of its inquiry wing or prosecution wing shall have
jurisdiction under this act in respect of alleged officers only after obtaining the
consent of the concerned State Government. (Section 14, The Lokpal Act, 2013)
Section 23(2) of this Act also illustrate about the mandatory requirement of prior
sanction for prosecution, however, Lokpal itself has power to grant sanction under
section 23(1). (The Lokpal Act, 2013)
Special provision of sanction for investigation in corruption cases, where the officer
at the rank of joint secretary or above is involved, is antithesis to the concept of
equality. (Dr. Suramanium Swamy v. Director, CBI & Anr, [(1997) 1 SCC 409]
Protecting corrupt public servant through the mandatory provision of sanction prior to
prosecution facilitates special privileges which sound contrary to the very essence of
“the equal protection of laws”. It is well established rule that the same or uniform
treatment of unequals is as bad as unequal treatment of equals. (Premchand
Somchand Shah v. UOI, [(1991) 2SCC 4]
26
Court has passed direction for grant of sanction within three months and on
reasonable ground, one month of extension period can be granted to competent
authority for grant of sanction by the court. (Manzoor Ali Khan & Ors. v. Union of
India & Anr.; [(2007) 9 SCC 226]
The official action by the government has a public element, fairness and equality has
to be observed in exercise of its executive power. Even in exercise of discretionary
power in any administrative decision, state action should be reasonable and rational.
(New Horizon Ltd v. UOI (1995) 1 SCC 478]
Article 14 requires the strict adherence of the principles of natural justice, including
the requirement of highly reasoned decisions in exercise of official discretion.
(Maneka Gandhi v. UOI 1978 AIR 597)
If the act complained of, is directly concerned with his official duties so that, if
questioned; it could be claimed to have been done by virtue of his office, the sanction
would be necessary and that would be so, irrespective of whether it was in fact, a
proper discharge of his duties or not. (Amrik Singh v. State of Pepsu AIR 1955 SC 309)
It is well settled law that when a public servant commits several offences in the
course of same transaction and if the more serious offence requires a previous
sanction, then prosecution has to get the sanction and by no means it would be open
to the prosecution to ignore serious change and prosecute the offenders for the less
serious charges which do not require previous sanction. (N. Brahmeswara Rao v. Sub
Inspector of Police, 1978 AIR 718)
5.3 STATEMENT OF PROBLEM
Corruption is as old as the mankind itself. The corruption has permeated deep and
strongly in all the branches of government be it legislature, executive or judiciary.
The corruption in executive is the most troublesome since they are in direct contact
with the people in dispensation of the public goods and services. Over the period, it is
experienced that existing legal framework and system mechanism in place are not
efficient enough to keep fool proof checks on abuse of power and corruption among
public servants which adversely affected the “rule of law” and caused grave violation
27
of “human rights” as the major portion of development fund gets diverted to the
pockets of powerful.
5.4 RESEARCH QUESTIONS
(1) Who is public servant?
(2) What is the legal protection available to the public servant in
corruption cases in India?
(3) What is general and legal perception of corruption?
(4) What is the cause of corruption?
(5) What is the effect of corruption?
(6) What is the legal history of corruption?
(7) What is the existing domestic legal frame work to check corruption?
(8) Whether the existing law on corruption and immunity is adequate?
(9) Does element of mens rea has some impact on prosecution under
PCA, 1988?
(10) What is the effect of sanction on prosecution of a retired public servant
for the offence committed under PCA, 1988 during his service?
(11) What are the rationale, validity and procedure of sanction for
prosecution of the public servants?
(12) Whether a private citizen has locus standi to seek sanction?
(13) Is there any time limit for granting sanction?
(14) What is the effect of non action on sanction application for
prosecution by the authority competent to grant or refuse sanction?
(15) What is the judicial response on corruption, immunity and sanction?
(16) What does “official duty” and “acting or purporting to act” mean
under section 197 of Crpc?
(17) What does good “faith mean” while dealing with anti corruption law?
(18) What is the judicial interpretation of “taking cognizance” mean?
(19) Whether non grant of sanction by the competent authority can be
challenged in the court?
28
5.5 OBJECTIVE
(1) To understand and conceptualize the law on immunity to public servant in
corruption cases?
(2) To explore the dynamics of corruption, immunity and sanction?
(3) To make improvement upon the existing literature on the subject?
5.6 HYPOTHESIS
(1) Corruption is a socio – legal phenomenon which is harming the society.
(2) Existing law on corruption is inadequate and there is a need to discontinue the
existing legal protection to public servant in order to deal with corruption
cases efficiently.
(3) Existing domestic legal frame work provides absolute protection to the public
servant in terms of essentiality of mens rea and requirement of sanction for
prosecution in corruption cases.
29
CHAPTER II
1. LEGISLATIVE HISTORY ON CORRUPTION
This chapter seeks to put forth various instrumentalities or measures undertaken by
Government of India since independence to confront corruption in its various
departments along with the judicial understanding and evolvement by judicial
pronouncements. These may include a plethora of measures but here the focus is on:
• Commissions and Committees-their recommendations
• Acts (legislative enactments)
• Judicial understanding through case laws
They are divided into the following29
:
1. Initial legal measures
2. Special Police Establishment, 1941
3. Prevention of Corruption Act, 1947 and Delhi Special Police
Establishment Act, 1946
4. Report on Public Administration (A.D. Gorwala), 1951
5. Public Administration in India—Report of a Survey (Paul H. Appleby),
1953 and Re-examination of India's administrative system, 1956
6. Committee on Prevention of Corruption (K. Santhanam), 1964
7. Prevention of Corruption Act, 1988
8. Right to Information Act, 2005
9. The Prevention of Corruption (Amendment) Bill, 2008
10. The Prevention of Corruption (Amendment) Bill, 2013
11. The Lokpal Act, 2013
The preface in Law Commission of India report in 2015 has observed that the
regulation of corruption in some form or the other has a long history in India. The first
law largely dealing with corruption and the attachment of property was pre-
independence, war time ordinance called the Criminal Law (Amendment) Ordinance,
1944 (Ordinance No. XXXVIII of 1944). It was enacted under the Government of
India Act, 1935 to prevent the disposal or concealment of property procured by means
29
S.R. Maheshwari, Administrative Reforms in India, Macmillan India Limited, New Delhi, 2008
30
of certain scheduled offences, including offences under the Indian Penal Code of
1860. The ordinance is one of the few remaining permanent ordinances, given that it
was enacted when the India and Burma Emergency Provisions were in effect and
when, the six month clause requiring ordinances to be statutorily enacted was
suspended. It has subsequently been incorporated in the Prevention of Corruption Act,
1988 thus giving the ordinance, the status of law.30
The first direct and consolidated law on the subject of corruption was the Prevention
of Corruption Act, 1947, which was enacted in independent India to supplement the
provisions of the IPC. The existing provisions under the IPC and other laws had
proved inadequate to deal with cases of bribery and corruption of public servants,
which had increased greatly during the war years, due to scarcity and controls.
Therefore, a new law was required to deal with various post-war scenarios, which
provided multiple opportunities for corruption – these included post-war
reconstruction schemes, termination of contracts, and disposal of a large number of
government surplus stores.31
The 1947 Act sought to incorporate (with modifications)
the attachment provisions from the 1944 Ordinance; introduced the offence of
criminal misconduct, similar to section 13 of the present 1988 Act; and criminalised
attempts to commit certain offences under the Act. However, the scope of the 1947
Act was considered to narrow and the PC Act was enacted in 1988 to replace the 1947
Act and certain provisions in the IPC dealing with corruption. It sought to, inter alia,
widen the scope of the definition of public servant; incorporate the offences under
sections 161-165A of the IPC; increase the penalties provided; and provide for day to
day trial of cases.
Independent India inherited the British tradition of appointing commission with the
stated intention of impartially arriving at the truth on a given event or issue. The
Commissions of Inquiry Act, 1952 contains provisions for appointment of special
inquiry commissions32
to deal with 'definite matters of public importance'. These
provisions can be set in motion only if the Central Government or a State Government
30
Report No.254 on The Prevention of Corruption “The Prevention of Corruption (Amendment) Bill,
2013” available at
http://lawcommissionofindia.nic.in/reports/Report_No.254_Prevention_of_Corruption.pdf 31
Statement of Objects and Reasons of the Bill preceding the enactment of the Prevention of Corruption
Act, 1947. 32
Vinod Pavarala, Interpreting Corruption: Elite Perspectives in India, Sage Publications, New Delhi,
1996.
31
so desires. During the past five decades, numerous commissions have been appointed
both by the Central Government and by the State Governments to inquire into a wide
variety of concerns. The main objective of many such commissions has been to probe
into specific allegations of corruption and misuse of office by politicians and other
highly-placed government officials. There were at least 25 prominent commissions
(and several others that targeted lesser known public figures) on the subject of
corruption within the same five-decade period mentioned above.
The individual committees, commissions and statutory instruments along with
relevant cases are as follows:
1. INITIAL LEGAL MEASURES
The Indian Penal Code, 1860 drafted a more than century and half ago in its four
sections 161-165 dealt with corruption and are the first steps in the development of
law on the subject.
Section 161 dealt with public servants taking gratification other than legal
remuneration in respect of an official act. Section 165 dealt with public servants
obtaining a valuable thing without consideration in respect of an official act.
Section162 and 163 dealt with corruption by private persons influencing the public
servant. The definition of public servant was enumerated in section 21 of IPC. The
words `gratification' occurring in Section161 and `valuable thing' occurring in
Section165 has a broader meaning than mere acceptances of money. They include (a)
pecuniary gratification; (b) gratification which is not pecuniary but estimable in
money including train or air tickets; (c) all forms of entertainment; and (d) all forms
of employment for reward.33
Given the severity of these offences, they were non-
cognizable till 1946 and were probed by the local police after obtaining the
authorization of a magistrate. In 1946 the Delhi Special Police Establishment Act was
passed pursuant to which a specialized agency, the Delhi Special Police Establishment
(now called CBI), was created to examine corruption cases. In 1947, a special
enactment, the Prevention of Corruption Act, 1947 was passed.
33
G. Reddy, Ramachandra, How effective are our laws to combat corruption?, The Hindu, 3 Oct. 2000,
p.21. available at http://www.thehindu.com/thehindu/2000/10/03/stories/13030641.htm last accessed
03/06/2015
32
As per the perambulatory part of the Act, the intention was to ‘eradicate corruption in
public life and administration more effectively’. The offences which were non-
cognizable till now, they became cognizable by section 5(3). Section introduced new
rule of ‘presumptive evidence’ i.e. rebuttable presumption which is against the
established principles of criminal law. The Act also created a new offence of
`criminal misconduct' in S.5 (1) whose scope and ambit is wider than S. 161 & 165
IPC, though to some extent it overlaps on the pre-existing provisions. This act
introduced new offence of ‘criminal misconduct’ in section 5(1) whose which was
larger in scope and ambit than the existing section 161-165 of IPC though they
overlapped.
The Act was dealt deftly by Supreme Court in one of the earliest case of corruption in
Narayanan Nambiar v. State of Kerala34
wherein the accused was Special Revenue
Inspector by misusing his position as public servant got allotted prime governmental
land to his brother-in- law which disclosure of fact of their relationship. He made
wrong entries in the revenue records undervaluing the number of trees and their
worth. This intentional suppression of fact regarding the relationship and
undervaluation was done to circumvent the rules governing the assignment of land to
the landless poor.35
`
The Supreme Court also observed,
“The long title as well as the preamble indicate that the Act was passed
to put down the said social evil i.e. bribery and corruption by public
servant. Bribery is form of corruption. The fact that in addition to the
word "Bribery" 'the word "corruption" is used shows that the
legislation was intended to combat also other evil in addition to
bribery. The existing law i.e. Penal Code was found insufficient to
eradicate or even to control the growing evil of bribery and corruption
corroding the public service of our country. The provisions broadly
include the existing offences under Sections 161 and 165 of the Indian
Penal Code committed by public servants and enact a new rule of
presumptive evidence against the accused. The Act also creates a new
34
AIR 1963 SC 1116 35
M. Narayanan Nambiar v. State Of Kerala AIR 1963 SC 1116
33
offence of criminal misconduct by public servants though to some
extent it overlaps on the preexisting offences and enacts a rebuttable
presumption contrary to the well-known principles of Criminal
Jurisprudence in relation to mens rea. It also aims to protect honest
public servants from harassment by prescribing that the investigation
against them could be made only by police officials of particular status
and by making the sanction of the Government or other appropriate
officer a pre-condition for their prosecution. As it is a socially useful
measure conceived in public interest, it should be liberally construed
so as to bring about the desired object, i.e. to prevent corruption among
public servants and to prevent harassment of the honest among them.”
The Supreme Court stated in plain terms what constitutes corruption, bribery and the
objective of the Prevention of Corruption Act, 1947
“…the object of the Act was to make more effective provision for the
prevention of bribery and corruption. Bribery means the conferring of benefit
by one upon another, in cash or in kind, to procure an illegal or dishonest
action in favour of the giver. Corruption includes bribery but has a wider
connotation. It may take in the use of all kind of corrupt practices.”
The Supreme Court referring to its earlier cases of Ram Krishan v. State of Delhi36
,
wherein bribe was offered to railway officer to bury the case against them and
Dhaneshwar Narain Saxena v. Delhi Administration37
wherein the Constitution Bench
speaking through B.P. Sinha, then Chief Justice of India noted the point that ‘criminal
misconduct’ is wide in ambit to stamp out corruption. In this case the appellant who
was an Upper Division Clerk in the office of the Chief Commissioner of Delhi knew
one Ram Narain who was a fireman serving in Delhi Fire Brigade. The appellant took
bribe from him for issuance of license though his functions didn’t pertain to issuance
of license. The argument tendered was that since it was not the duty of accused to
issue license, there was no violation of Section 5 (1) (d). Supreme Court rejected his
contention and held that legislature intentionally broadened the scope of offence so as
to penalize, holding public office and taking advantage of their position to obtain any
36
A.I.R. 1956 S.C. 476 37
A.I.R. 1962 S.C. 195
34
valuable thing or pecuniary advantage. The ingredients of the particular offence in
clause (d) of section 5(1) of the Act are; (1) person should be a public servant; (2)
usage of corrupt or illegal means or otherwise abuse his position as a public servant;
(3) obtaining thereby a valuable thing or pecuniary advantage; and (4) for himself or
for any other person. For conviction under the clause (d) of the section, it’s not
essential that a person who has misconducted himself should have done that in
discharge of his official duty. It would be anomalous to say that a public servant has
misconducted himself in the discharge of his duty. "Duty" and "misconduct" go ill
together. If a person has misconducted himself as a public servant it would not
ordinarily be in the discharge of his duty, but the reverse of it. That 'misconduct',
which has been made criminal by section 5 of the Act, does not contain the element of
discharge of his duty, by public servant, is also made clear by reference to the
provisions of clause (c) of section 5(1).
It is well settled principle of law that if a public servant dishonestly or fraudulently
embezzles property entrusted to him, the same could not be termed to have been done
in the discharge of his official duty.
Thus, if the person is not the beneficiary but there has been abuse of the official
position to unduly favour or disfavor. An example can be ‘influencing a selection
committee’ for selection of a particular candidate cannot shed his legal liability by
claiming that its not his duty of being involved in the selection and escape the legal
consequences (Reversing three judge bench decision of The State of Ajmer (Now
Rajasthan) v. ShivjiLal38
in Dhaneswar v. Delhi Administration39
).
The Commission of Enquiry Act 1952 was passed and consequently there were many
Commissions of Enquiry appointed under the chairmanship of Supreme Court judge
to inquire into the charges of corruption against many Chief Ministers and Union
Ministers. The incriminate findings of the commissions forced the public men into
quitting their office.
In 1956, a commission was appointed under the Judge of Supreme Court Vivian Bose.
His recommendation led to the Criminal (Law Amendment) Act 1958 which
increased the list of people who are deemed to be ‘public servant’.
38
AIR 1959 SC 847 39
AIR 1962 S.C. 195
35
2.1 SPECIAL POLICE ESTABLISHMENT, 1941 AND DELHI SPECIAL
POLICE ESTABLISHMENT, 1946
To cope with the evil of corruption, the British Government in India in 1941
constituted the Special Police Establishment40
by an executive order under a Deputy
Inspector General to deal with the offences of bribery and corruption in Central
Government. Initially, its responsibility was limited to investigating cases of bribery
and corruption in transactions with which the War and Supply departments of the
Government of India were concerned. To begin with, therefore, the superintendence
of this anti-corruption agency, known as the SPE, was vested in the War Department.
But at the end of 1942, the activities of SPE were further extended to include cases of
corruption in the Railways. After the War, when the new government took over in
1946, it found that the administrative machinery had become considerably weakened
by the war-time neglect. On assuming office in 1946, the new Government took a
number of steps to deal with the problems of corruption. Therefore, the Delhi Special
Police Establishment was created in 1946, and its superintendence was transferred to
the Home Department.41
Its functions were also enlarged to cover all departments of
the Government of India. The Special Police Establishment is a specialised agency for
making inquiries and investigations into certain specified offences. It is
supplementary to the State Police forces and has concurrent powers of investigation in
respect of the offences notified under Section 3 and 5 of the DSPE Act, 1946. These
offences are:42
a) Those punishable under Sections 161, 162, 165, 165-A, 258 of the Indian
Penal Code 1860 and Section 5 of the Prevention of Corruption Act, 1947 as
amended.
b) Offences punishable under Section 7 of the Essential Supplies (Temporary
Powers) Act, 1946; (since notified);
c) Offences under the Foreign Exchange Regulation Act (FERA), 1947;
d) Offences under the Imports and Exports (control) Act, 1947;
e) Offences punishable under Section 52 of the Indian Post Office Act, 1898; and
40
“A Brief History of CBI” http://cbi.nic.in/history.php 41
Government of India, Ministry of Home Affairs, Report of Special Police Establishment Enquiry
Committee (1949-1952), New Delhi, 1952, p.12 42
Government of - India, Ministry of Railways, Report of the Railway Corruption Enquiry Committee
(1953-55), p.83.
36
f) Attempts at abetments and conspiracies in relation to, or connected with, the
offences mentioned under (a) to (e), and any other offences committed in the
course of the same transaction arising out of the same facts.
In 2013, Constitution Bench of Supreme Court of India in Dr. Subramanian Swamy
v. Director, Central Bureau of Investigation &Anr43
delivered verdict in the petitions
challenging the constitutional validity of Section 6A of the Delhi Special Police
Establishment Act providing for prior sanction for prosecution of senior bureaucrats
in corruption cases.
Section 6A of the Delhi Special Police Establishment Act, 1946 (for short, 'the DSPE
Act'), which was inserted by Act 45 of 2003, reads as under:
“Section 6A. Approval of Central Government to conduct inquiry or
investigation.-(1) The Delhi Special Police Establishment shall not conduct
any inquiry or investigation into any offence alleged to have been committed
under the Prevention of Corruption Act, 1988 (49 of 1988) except with the
previous approval of the Central Government where such allegation relates to-
(a) The employees of the Central Government of the Level of Joint Secretary
and above; and
(b) Such officers as are appointed by the Central Government in corporations
established by or under any Central Act, Government companies, societies and
local authorities owned or controlled by that Government.
(2) Notwithstanding anything contained in Sub-section (1), no such approval
shall be necessary for cases involving arrest of a person on the spot on the
charge of accepting or attempting to accept any gratification other than legal
remuneration referred to in Clause (c) of the Explanation to Section 7 of the
Prevention of Corruption Act, 1988 (49 of 1988).
By two Writ Petitions led by Dr. Subramanian Swamy who has been raising questions
of probity in public life through cases in Supreme Court from last three decades now
for declaring the Section 6A of the Delhi Special Police Establishment Act, 1946 as
unconstitutional. Thus the Supreme Court was tasked with onerous job of testing the
43
AIR 2014 SC 2140
37
impugned section against Article 14 of the Constitution since Section 6A created
artificially a special circumstance of prior sanction for a particular class of people i.e.
Joint Secretary and above to be investigated in cases of allegations of corruption. The
Supreme Court had to figure out whether the classification was valid and legally
justifiable given due regard policy relating to prevention of corruption discernable
Prevention of Corruption Act, 1988 and power of inquiry/investigation as specified
under the Act under challenge on the touchstone of equality.
The Supreme Court opined that though the States are permitted by Constitution the
determination of classification, the attention needs to be paid to what can be
regarded as class for purposes of legislation and with reference to law dealing with
that subject. There will be naturally some inequality when one class is segregated
from another but then such ‘segregation must be rational and not artificial or
evasive’. The whole concept of intelligible differentia derives its validity from the
manner, mode and method of classification for in pursuance of a specific legislative
goal which is legally sustainable. Thus, ‘differentia which is the basis of
classification must be sound and must have reasonable relation to the object of the
legislation’ so if the very foundation of such discriminatory, then however plausible
the explanation is tendered advocating classification being reasonable having
rational relation to object sought, such explanation is immaterial.
After elucidating the law on the case, the Supreme Court turned its attention to the
factual matrix at hand holding that such classification is irreconcilable with the
Article 14 since the basis of classification which is status made for the public
servants under Article 14 is impermissible with Article 14 as its defeating the very
purpose of finding prima facie truth into the allegation leveled under Prevention of
Corruption Act, 1988.
So the moot point which the Supreme Court faced was whether there can be sound
differentiation between corrupt public servants based on their status? The Court
answered in negative reasoning that the status of public servant is of no avail when
it comes to corruption since ‘corrupt public servants are corrupters of public
power.’ The Supreme Court further remarked that the ‘corrupt public servants,
whether high or low, are birds of the same feather and must be confronted with the
38
process of investigation and inquiry equally’44
. Based on the position or status in
service, no distinction can be made between public servants against whom there are
allegations amounting to an offence under the Prevention of Corruption, 1988.
Thus, irrespective of position or clout, public servant against whom allegations of
corruption has been raised and there is reasonable suspicion of commission of crime
or there are allegations of an offence under the Prevention of Corruption, 1988, then
equal treatment on the basis of equality has to be met out against the concerned
public servants. Hence ‘any distinction made between them on the basis of their
status or position in service for the purposes of inquiry/investigation is nothing but
an artificial one and offends Article 14’; hence cannot stand the judicial scrutiny of
validity.
The existence of Section 6A rendered discriminatory and violate of Article 14 the
protection offered to senior and seasoned public servants. There cannot be any such
objective behind such illegal protection being offered by artificial classification.
On the applicability of the invalidation of 6A failing judicial scrutiny;
constitutionally , they have no application with regard to judiciary as the ratio of
case K. Veeraswami v. Union of India and Ors45
makes it amply clear that they are
‘constitutional functionaries’, with their position being distinct and different from
governmental officers thus the judgment has no application for Judges sanction.
2.2 PREVENTION OF CORRUPTION ACT, 1947
In order to grant more legal powers to punish corrupt public servants Prevention of
Corruption Act, 1947 was enacted. During this pre-Independence period, corruption,
was generally confined to lower or middle level functionaries of few departments, like
the Civil Supplies, PWD, Police, Excise, Forest, etc. The new anti—corruption law
and the special anti-corruption police were considered adequate to cope up with the
degree and level of corruption prevalent at that time. The Prevention of Corruption
Act, 194746
defines the offence of criminal misconduct as a habitual acceptance of
44
Dr. Subramanium Swamy v Director, CBI, AIR 2014 SC 2140 para 58 45
(1991) 3 SCC 655 46
Government of India, Ministry of Law, Prevention of Corruption Act 1947, New Delhi.
39
gratification as defined in Section 161 of the Indian Penal Code. Possession of assets
which cannot be accounted for satisfactorily is also viewed as criminal misconduct.
The Act registered a great advance in so far as it made offences under these section
'cognizable'. Police officers of a certain rank, mainly Deputy Superintendents of
Police, were authorized to arrest the suspected offenders without the production of a
warrant. The Prevention of Corruption Act became law on 11th
March, 1947.47
In 1949, the Dr. Bakshi Tek Chand Committee was appointed by the Government of
India on the subject, suggested certain amendments to procedural law. The Criminal
Law Amendment Act, 1952 was passed. This is progressive legislation. It conferred
power on the State Government to appoint special judges to try the cases speedily.
Section 6(1) conferred power on the special judge to take cognizance of the offence
on a private complaint or upon a police report or upon his coming to know in some
manner of the offence having been committed.
Dr. Bakshi Tek Chand Committee of 1949 appointed by government of India took
upon itself analyzing the procedural law and suggesting certain amendments to the
same. Resultantly, The Criminal Law Amendment Act, 1952 which is progressive
legislation for the reason that it conferred power on the State government to appoint
special judges to try cases expeditiously. Section 6(1) gave power to special judge to
take ‘cognizance of offence on a private complaint or upon a police report or upon his
coming to know in some manner of the offence having been committed.’
2.3 REPORT ON PUBLIC ADMINISTRATION (A.D. GORWALA), 1951
In 1951, A.D. Gorwala,48
a civil servant with high reputation for integrity had been
asked by the Planning Commission to consider in different fields the question whether
the present administrative machinery and methods were adequate and could meet the
requirements of planned development. His report had a whole section entitled,
Integrity.49
Gorwala recommended introducing Organisation and Method procedure in
various government organisations. He stressed efficiency and discipline in the civil
service and on promoting an understanding between the politicians and the
administrators.
47
B.B. Mishra, Government and Bureaucracy in India: 1947-1976, Oxford University Press, 1986 48
Government of India, A.D. Gorwala, Report on Public Administration, Planning Commission, 1951. 49
Ibid., pp.12-27.
40
Recalling the Sanskrit proverb “As the king so the people," he stressed that it was the
conduct of those at the top which shaped the country's development. Gorwala,
therefore, urged that "arrangements must be made that no one, however highly placed,
is immune from enquiry if allegations against him are made by responsible parties and
a prime facie case exists."
This is the crux of the matter; the initiation of an investigation into crime or an inquiry
into charge of corruption or maladministration must not depend on the wishes of the
men in power. If it does, it ceases to be government according to the rule of law. The
best form of machinery would be a tribunal50
to enquire, that is, a tribunal the purpose
of which is not to punish but to find out and establish facts. According to Gorwala, the
authority responsible for setting up the "tribunal" might, for the Central Government,
be the President, and for the State Governments, the Governors acting in consultation
with the President. Gorwala also argued that political leadership had not been able to
establish clean administration because, some of them, lacked in integrity.
It is often difficult to produce sufficient proof of corruption to obtain a conviction in a
court of law and yet there may be strong and reasonable suspicion coupled with
persistent public talk. Here too effective action is essential. Punishment for corruption
should be exemplary, the least being dismissal from service.
Gorwala suggested the best approach to the problem: the present time would seem to
be:51
a) Giving first place to first things and making the best use of the best people:
priorities for policies and personnel;
b) Insisting on standards of integrity, implicit and explicit not only the reality of
integrity but also the demonstrable appearance of integrity;
c) Promoting mutual understanding: proper readjustment of the human relations
involved in Government and administration;
d) Reorganising the machine so as to ensure greater speedy effectiveness and
responsiveness; and
e) Arranging for proper training, for the short-term as well as the long — term,
and planning proper recruitment for the long-term.
50
Ibid., p.16. 51
Ibid., p.7.
41
This was, probably, the first official document to discuss corruption by politicians in
power. The tendency hitherto was to treat the vice as an affliction of the civil services
or businessmen.
2.4 PUBLIC ADMINISTRATION IN INDIA-REPORT OF A SURVEY (PAUL
H. APPLEBY), 1953
Two reports which had a significant impact were Paul H. Appleby's 'Public
Administration in India: Report of a Survey, 195352
and "Re-examination of India's
administrative system, 1956.53
Appleby's two reports in 1953 and 1956 made
important reforms in the administrative structure since they were probably the first
appraisal of the Indian Administrative System by a foreign expert. Inspite of the fact
that the report criticized the administrative machinery, it had words of praise for
administrative system as whole.
Paul H. Appleby while reporting on "Public Administration in India" found four
popular criticisms against the Indian Government. They were that it had too many
employees, that it was permeated with dishonesty, that it was inefficient and that its
work was unnecessarily hampered by "red tape". He also devoted a full chapter on the
problem of corruption.54
Appleby suggested some structural changes in the administrative machinery to check
corruption55
. The simplest kind of structural protection is a division of function and
responsibilities so that favouritism requires not merely one employee willing to do the
wrong thing, but conspiracy of a number of such persons, preferably in a minimum of
three different organisational units with differentiated responsibilities and lines of
review. To illustrate it, he suggested that no one person, and no one organisational
unit, should have simultaneous responsibilities for certifying a pay-roll and receiving
and distributing pay-checks. His other suggestion was to have a more complicated and
complementary structural device in which there should exist programmatic operating
52
Government of India, Paul H. Appleby, "Public Administration in India", Report of a Survey, New
Delhi, 1953. 53
Government of India, Appleby, Paul H., Reorganisation of India's Administrative System,
New Delhi, 1956. 54
Ibid.,p.48-50. 55
Ibid.,p.49.
42
agency hierarchies paralleled by another hierarchy charged with checking that
operation thoroughly and at all levels.
2.5 COMMITTEE ON PREVENTION OF CORRUPTION (K. SANTHANAM),
1964
Given the incidents of corruption during that time, not surprisingly at the time of the
budget discussion in 1962 in the Indian Parliament, the members expressed their
grave concern over the ever growing corruption in the public services and urged the
government to set up a Committee to investigate into the problem. As a result,
LalBahadurShastri (then Home Minister), set up a committee under the chairmanship
of K. Santhanam56
(a former member of the Constituent Assembly) to study the
causes of corruption, to review the existing set up .for checking corruption in the
Government and to suggest measures for their improvement. The Committee's final
report was presented to the Government of India on March 31, 1964. Political
corruption was beyond the purview of the Committee.
Commenting on the scope of corruption, the Santhanam Committee observed:
`There is a general impression that it is difficult to get things done without resorting to
corruption. Scope for corruption is greater and the incentive to corrupt stronger at
those points of the organisation where substantive decisions are taken in matters like
assessment and collection of taxes, determination of eligibility for obtaining licences,
grant of licences, ensuring fair utilisation of licences and goods obtained there under,
giving of contracts, approval of works and acceptance of supplies. We were told by a
large number of witnesses, that in all contracts of construction, purchases, sales and
other regular business on behalf of the Government, a regular percentage is paid by
the parties to the transaction and this is shared in agreed proportions among the
various officials concerned'.57
Explaining further, the committee stated
"Corruption can exist only if there is someone willing to corrupt and capable of
corrupting. We regret to say that both this willingness and capacity to corrupt is found
56
Government of India, Ministry of Home Affairs, Report of the Committee on the Prevention of
Corruption (Santhanam Committee), New Delhi, 1964. 57
Ibid., p.10.
43
in a large measure in the industrial and commercial classes".58
The ranks of these
classes have been swelled by speculators and adventures of the worst kind. To these,
corruption is not only an easy method to secure large unearned profits, but also the
necessary means to enable them to pursue their vocations or retain their positions
among their own competitors.
A new offence of “possession of disproportionate assets to one's known sources of
income'' was incorporated as S. 5(1) (e) in the Prevention of Corruption 1947. The
office of “Minister” was suggested for inclusion in the list of public servants by
amendment to S.21 IPC. But even before that, the necessary amendment to include
Minister in the definition of public servant was made by the government in pursuance
of the S.C. judgment in Rao Shiv Bahadur Singh and Anr. v. The State of Vindhya
Pradesh59
case in which it held that a `Minister' is a public servant within the existing
framework of law under the sub-clause 12 of S.21 of the IPC. MPs, MLAs were left
out. The Central Vigilance Commission60
was also set up in the year 1964 vide a
resolution dated February, 11, 1964. In 1985 another Committee went into the
working of the Prevention of Corruption 1947 and its recommendation led to the
Prevention of Corruption 1988. The list of `public servants' was further enlarged by
including MPs and MLAs among others. Presumption u/s. 7, 11, 131(A) and (B) was
raised. S.161 to 165 IPC were deleted from IPC 1860. The Criminal Law Amendment
Act 1952 was repealed and its provision incorporated in the new Act.
This is a realistic analysis of the prevailing position in the administration and it shows
how the relationship is established and the dubious manner in which it is done,
between the officials and the business community. The Committee did not favour the
establishment of a permanent tribunal or Ombudsman, for the enquiries but It had
suggested a "National Panel" to be constituted of eminent persons by the President of
India.
The Committee suggested amending Article 311 of the Constitution so as to make the
judicial process in corruption cases easy and speedy and also recommended for
Central Vigilance Commission with autonomous powers and restriction on
58
Ibid.,p.11. 59
AIR 1953 SC 394 60
http://cvc.nic.in/acts_inst.htm http://cvc.nic.in/CVCORD2010/CVC%20Resolution,%201964.pdf
44
government servants employed as member or chairman in CVC from accepting
private employment after retirement under the control of private business man.
The Committee also made recommendations relating to the Government Servants
Conduct Rules. This corruption, the report said, was politico-administrative in nature,
organised and had deep roots.
In pursuance of the recommendations made by the Committee on Prevention of
Corruption, the Central Government set up, in Feb. 1964, the Central Vigilance
Commission headed by a Central Vigilance Commissioner, by an executive order.
While the recommendations for setting up the CVC was accepted by the Government,
the scheme of the CVC as finalised by the government did not contain many of the
important features recommended by the Santhanam Committee.
Some very important recommendations by the Committee regarding framing a Code
of Conduct, standard of behaviour for the Members of Parliament and State
Legislatures and declaration of assets by the men in position have not been fully
accepted.
Another important measure was the creation of CBI in 1963,61
which incorporated
Delhi Special Police Establishment as its investigation and anti-corruption division
2.6 PREVENTION OF CORRUPTION ACT, 1988
The anticorruption laws of the country have since been further consolidated through
the enactment of a more comprehensive legislation: The Prevention of Corruption
Act, 1988. It extends to the whole of India except the State of Jammu and Kashmir
and it applies also to all citizens of India outside India: This latest Act supersedes the
Act of 1947 and Sections 161 to 165A of the Indian Penal Code, with a view to
removing any confusion in the implementation of the new Act. To give an idea of the
range of corrupt acts as defined by this law, the important Penal sections of the Act
are Sections 7, 8, 10, 11 and 13.
The Act elaborately defines the term "Public Servant"62
to cover all varieties of
persons in authority, politicians and civil servants alike. Section2(c)(VIII) of the
61
S.R. Maheshwari, Administrative Reforms in India, Jawahar Publishers, New Delhi, 1993, p.365-367 62
The Prevention of Corruption Act, 1988 (No. 49 of 1988), section 2(c)
http://www.persmin.gov.in/DOPT/EmployeesCorner/Acts_Rules/PCAct/pcact.pdf
45
definition in particular is wide enough to include even M.L.A's and M.P's who are not
Ministers or Chairman etc. The Central Government or the State Government has the
power to appoint special judges for cases punishable under this Act. No court shall
take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged
to have been committed by a public servant except with the previous sanction. The
Code of Criminal Procedure, 1973 to apply subject to certain notification. The
Prevention of Corruption Act, 1947 and the Criminal Law Amendment Act, 1952 are
hereby repealed. Sections 161 to 165 A (both inclusive) of the India Penal Code is
omitted, and section 6 of the General Clauses Act, 1897, shall apply to such omission
as if the said sections had been repealed by a Central Act.
The Supreme Court held in recent case of Dr. Subramanium Swamy v CBI that
‘Prevention of Corruption, 1988 is a special statute and its preamble shows that it has
been enacted to consolidate and amend the law relating to the prevention of
corruption’. It made the coverage of corruption more broad based and fortified the
provisions. The earlier act of 1947 on corruption was unable to deal with offences of
corruption in spite of being amended repeatedly to be in sync with time. The new act
sought that there should be speedy trial in public interest as the legislature became
informed about the increasing corruption.63
The menace of corruption has been noticed by Supreme Court in State of M.P. and
Ors. v. Ram Singh64
. The court has observed:
“Corruption, at the initial stages, was considered confined to the bureaucracy which
had the opportunities to deal with a variety of State largesse in the form of contracts,
licences and grants. Even after the war the opportunities for corruption continued as
large amounts of government surplus stores were required to be disposed of by the
public servants. As a consequence of the wars the shortage of various goods
necessitated the imposition of controls and extensive schemes of post-war
reconstruction involving the disbursement of huge sums of money which lay in the
control of the public servants giving them a wide discretion with the result of luring
them to the glittering shine of wealth and property.”
63
Dr. Subramanian Swamy v Director, Central Bureau of Investigation &Anr. AIR 2014 SC 214 64
(2000) 5 SCC 88
46
In Subramanian Swamy v. Manmohan Singh and Anr.65
, Supreme Court was asked
whether a private citizen has locus standi to seek sanction for prosecution of an
offence punishable under the Prevention of Corruption, 1988. It was held “there is no
provision in either of the statute (Crpc, 1973 or PCA, 1988) which bars a complainant
from filing a complain for prosecuting a public servant alleged to have committed an
offence. In another case the special judge took cognizance of the offence alleged to
have committed by the appellant on private complain.66
Whether the authority competent to sanction prosecution of a public servant for
offences under that Act is required to take appropriate decision within limited time
frame? In Vineet Narain and Ors. v. Union of India and Anr67
Supreme Court held “
delay in considering the application seeking grant of sanction by the authority
competent to grant sanction befools judicial scrutiny and obstruct the discharge of
justice by the court. Such delay in grant of sanction deprives the citizen of his
legitimate and fundamental right to get justice by setting the criminal law in motion
and thereby it hampers the constitutionally guaranteed right to access to justice.
Therefore, court proposed a guideline fixing the time limit for grant of sanction within
three months and one month extension can be given on request. In case of no decision
is been taken within such duration, then it will deemed to have been granted. The
same guidelines were entrenched in Dr. Subramanian Swamy v. Manmohan Singh
case.68
In the accompanying judgment, A.K. Ganguly, J. while concurring with the
primary judgment of G.S. Singhvi, J. observed:
“Today, corruption in our country not only poses a grave danger to the concept
of constitutional governance, it also threatens the very foundation of the Indian
democracy and the Rule of Law. The magnitude of corruption in our public
life is incompatible with the concept of a socialist secular democratic republic.
It cannot be disputed that where corruption begins all rights end. Corruption
devalues human rights, chokes development and undermines justice, liberty,
equality, fraternity which are the core values in our Preambular vision.
Therefore, the duty of the court is that any anti-corruption law has to be
65
(2012) 3 SCC 64 66
A.R. Antulay v. R.S.Nayak, (1984) 2 SCC 500 67
(1998) 1 SCC 226 68
(2012) 3 SCC 64
47
interpreted and worked out in such a fashion as to strengthen the fight against
corruption....”
Dealing with Section 19 of the Prevention of Corruption, 1988 which bars a court
from taking cognizance of the cases of corruption against a public servant under
Sections 7, 10, 11, 13 and 15 of the Prevention of Corruption, 1988, unless the Central
or the State Government, as the case may be, has accorded sanction observed that this
provision virtually imposes fetters on private citizens and also on prosecutors from
approaching court against corrupt public servants. Public servants are treated as a
special class of persons enjoying the said protection so that they can perform their
duties without fear and favour and without threats of malicious prosecution but the
protection against malicious prosecution which is extended in public interest cannot
become a shield to protect corrupt officials.
2.7 THE PREVENTION OF CORRUPTION (AMENDMENT) BILL, 2008
The anti-corruption law is filled with technicalities and safeguards. It does not seem to
reflect the aspirations of the people of India who want clean administration. The
punishment for corruption is sentence and fine which is most of the time found
inadequate or due to incessant cycle of appeal. The Government did introduce Bill
No. 70 of 2008- Prevention of Corruption (Amendment) Bill, 200869
in Lok Sabha
keeping in view the opinion expressed by the Law Commission of India. The Bill
instead of providing a separate law for the attachment of property acquired by the
corruption, the government sought to insert a new chapter IV-A in the Prevention of
Corruption Act, 1988 which empowers the special judge to exercise the power of
attachment before the judgment of the property/assets of the corrupt public servant
which the proposers of the bill believe as a procedure ‘more effective than the outright
seizure’. Statement of Objects and Reasons read as, ‘Therefore, it is proposed to insert
a new Chapter IVA in the Prevention of Corruption Act which empowers the special
judge to exercise the powers of attachment before judgment. The procedure provided
will be more effective and speedy.’ The Bill also proposed an amendment to the
Section 19 of the Prevention of Corruption Act, 1988 which deals with sanctions ‘to
provide a safeguard to a public servant from vexatious prosecution from any bonafide
69
http://www.prsindia.org/uploads/media/1229929759/1229929759_The_Prevention_of_Corruption__
Amendment__Bill__2008.pdf
48
omission or commission in the discharge of his official duties. Presently, this
protection is not available for a person who has ceased to be a public servant. The said
section is being amended to provide the said protection to the persons who ceased to
be public servants defined u/s 2(c) of PCA, 1988. It was aimed at protecting the
persons who ceased to be public servants. The Bill never became law as the session of
parliament lapsed prematurely.
To the general public, the irony was not lost of safeguarding the public servants while
strengthening the anti-corruption laws. It seemed rather symbiotic nexus between the
politicians and bureaucrats to safeguard each other and protect the interests in
corruption. It seemed there was no will either among the parliamentarians or the
government to deal with monstrous corruption iron handedly despite the best
professed, benign ministerial intentions relayed to the public to the contrary.
2.8 THE PREVENTION OF CORRUPTION (AMENDMENT) BILL, 2013
This Bill has been introduced in the Parliament to amend the Prevention of
Corruption, 1988, Delhi Special Police Establishment Act, 1946 and the 1944
Ordinance which was the first law enacted before the independence to formally deal
with corruption. This amendment is necessary to bring the anti-corruption law in
consonance with the global standards. India ratified the United Nations Convention
against Corruption (UNCAC) is a multilateral convention negotiated by members of
the United Nations70
. It is the first global legally binding international anti-corruption
instrument. The Statement of Objects and Reasons to the 2013 Bill make a reference
to the Indian ratification of the UNCAC convention in 2011. Moreover, the
amendment was necessitated by the pronouncements of Supreme Court on the
constitutional validity of Section 6A of Delhi Special Police Establishment Act, 1946
which has been dealt earlier.
Inspite of such inspirational indication, the bare perusal of the amendment makes it
clear that the Bill is replication of the Bribery Act, 2010 of United Kingdom which
replaces the common law offences of bribery and Public Bodies Corrupt Practices
Act, 1916. The law in UK itself is the result of the 313th
Report on Reforming Bribery
of November 2008 which proposed the Draft Bribery Bill, 2010 which eventually
70
India ratify UN Conventions against Transnational Organised Crime and Corruption, 13 May, 2011
http://pib.nic.in/newsite/erelease.aspx?relid=72119
49
became the Act.71
The UK Bribery Act 2010, which came into force on 1 July 2011,
affects corporate entities based in both the UK and overseas. Unlike the Indian law
since independence, UK bribery laws have also targeted the private corruption i.e. the
corruption in the corporate sector which is why not surprisingly, the magic circle law
firms came out with their own reports on the law commission draft report of 2008 of
UK as it sought to spread awareness to their clientele about the change in law. Unlike
the Indian law which seeks to check the corruption by public servants, the UK law
makes it an offence to indulge in bribery by ‘any person’ hence it was not very
prudent step for the Bill framers to have borrowed without the application of mind
and the consequences.
If we do section wise analysis of the present act, the loopholes are glaring and its
reaffirms the belief that the bill is nothing but shining example of poor draftsmanship
and non-application of mind. This also shows the lack of seriousness. Section 7 of the
Bill regulates the acts in relation to a public servant being bribed. The Objects and
Reasons accompanying the Act make it clear that the intention of the legislature is
that the definition of offence under the section was ‘a new comprehensive definition
which covers all aspects of passive bribery’.
(Source: Law Commission of India report, 2015)
71
http://lawcommission.justice.gov.uk/docs/cp185_Reforming_Bribery_report.pdf
50
By doing simple job of lifting from UK, they have created ambiguity and difficulty in
the interpretation of the section as illustrated above. If comparison is made between
the 2013 Bill and 1988, it seems that inspite of being putting UN Convention Against
Corruption as one of the reason for the amendment, the UNCAC hardly features either
in the terminology or the sections. Section 7 now criminalizes five types of acts of
public servants but two of the phrases ‘requests for’ and ‘agrees to receive’ have been
blatantly lifted from the UK Bribery Act and UN CAC without realization that
“requests for” is already criminalized under the existing act under “attempts to
obtain.” Thus this whole process of making comprehensive definition of corruption is
sham by usage of superfluous words which have no inklings with what is desired to
be done. It will only lead to confusion and disputes on interpretation of the group of
five words occurring in section 7 of the proposed amendment. The law commission
recommended that ‘requests for’ should be dropped altogether from section 7(1)(a),
(b), (c), (d) and Explanation 1 of the proposed Bill of 2013.
Also in section 7, there is reference to term “relevant” public function or authority
repeatedly which has been borrowed from UK Bribery’s Act term “relevant function
or activity” which is problematic since UK’s act covers both public and private
corruption unlike India which deals only with public servants.
The Law Commission has recommended that the word “relevant” since has no
functionality must be dropped altogether which occurs before the word “public
function or activity”.72
Section 7(1) of the 2013 Bill which dealing with instances where public servants is
taking a bribe in return for performing public function i.e. what has been denoted as
official duty as being done “improperly.” Now this is curiously interesting because in
India most of the time the bribe is paid to the public servants so that they can perform
‘properly’. This is what is called ‘facilitation fee’ to expedite the clearance or file.
It is unclear rather muddy how does it cover what can be termed as ‘improper’ since
the UK Bribery Act covers private and commercial bribery unlike Indian draft law
that covers only the private corruption.
72
254th
Report, Law Commission Of India
51
Thus, by lifting directly from the provisions of UK without understanding their
societal, economic or administrative setup, the context or without providing examples
how Prevention of Corruption draft law will operate has left it totally unclear on the
operation of the draft law.
The exact phrasing of section 7 (1)(b) will cause uncertainty since it take into account
the “minimum morality” of entire section 7 offence as it criminalises the mere act of
‘obtaining/agreeing to receive/attempting to obtain’. If the act of merely asking for
money is made an offence, then the whole purpose of section 7 (1) (a), (c) and (d)
would seem superfluous. It should be renumbered as it cannot be the intention of
expanding the scope of section 7 to offences which has already been covered in prior.
Hence section 7 should be amended accordingly.
Now coming to section 7 (2) which is borrowed from sections 3, 4 and 5 of the UK
Bribery Act deal with “public function”. The Sections 3 and 4 of the UK Bribery Act
are relevant to UK and in proper context since they sought to penalize private acts as
punishable. It made it important to define terms “relevant functions or activity” or
“improper performance” with which the bribe relates or “relevant expectation.”
As contended above, the Prevention of Corruption Act is only confined to the public
servants whose definition is given in the statute. Also the section 2(b) of the Act
defines the public duty. Hence it’s a repeat of what happened with section 2(b) in
clause 1 of section 7(2)(a) of 2013 amendment bill.
The section 7(2)(a) with deals definition of “public function or activity” is copied
from sections 3(2)(a), (c ), 3(3), 3(4) and 3(5) of the United Kingdom Act instead of
the articles of the United Nations Convention against Corruption (UNCAC) as said in
the objects and reasons for the bill. The United Kingdom government did not wish to
bring in its fold all the private activities, it was essential to define the public nature of
function or to determine whether it was performed in a position of trust. Thus, by
permutation and combination, a lot of activities were brought in the within the ambit
of the section. Since the 2013 amendment is concerned with the public servants, such
permutation and combination of functions may not be relevant at all. In fact, it will
only sponsor confusion as the scheme of the UK act is not replicated in full. With
only bits and pieces being borrowed, it will have a jarring effect.
52
The section 7 (2)(a)(i) and (ii) dealing with the public nature of the activity or
performance in the course of employment of person as public servant is completely
redundant and unnecessary since the PC Act itself in the broadest terms defines who
are public servant and also enlists their official duty.
The Bribery Act, 2010 also introduced the concept of “position of trust”. It’s very
blurred how this concept will which is borrowed will be applicable in the Indian
context since the doctrine of public trust has not yet been brought under the fold of
criminal law. In India, it only applies to the large tort cases such as the cases of M.C
Mehta for protection of environment. The sections 7(b)-(c) of the 2013 Bill proposed
in the parliament are copied from the section 4(1) and 4(2) of the UK Act. Given the
scope of the Bribery Act and the impracticality posed by the blatant lifting the
language of the Act without realizing the consistency, coverage and scope, it will
continue causing interpretational hazards and hurdles creating cloud of confusion.
Section 7(2) is a reproduction of section 4(3) of the UK Act.
(Source: Law Commission of India report, 2015)
It’s totally unclear as what it seeks to convey though some light on this fact is shed by
the Law Commission of UK report of 2008 which form the basis of the 2010 Act.
The whole section is incompatible as well as unsettling since bare perusal of section
4(3) of the Bribery Act, 2010 is focused on “any person” which signifies that it’s in
relation to the past performance of a person in private sector which can’t be a case in
India. There has been no application of mind as the only word changes is “person”
occurring in Section 4(3) to be replaced by “public servant” in section 7(2)(d) while
53
rest of the section is in chorus of “any person” as understood in the UK Bribery Act,
2010. It’s completely waste since the PC Act is confined to the public servants only.
There should have been adaptation of law rather than replication.
Thus, the Law Commission of India recommended that Sections 7(2)(a), (b), (c), (d)
and (e) should be altogether scrapped and consequently the definition of “public
servant” as well as “relevant experience”.
Analysis of Section 8, Prevention of Corruption (Amendment) Bill, 2013
The new section 8 makes introduction of new offence of supplying i.e. the act in
relation to bribing the public servant. The 1988 act didn’t directly dealt with the
offence of “active domestic bribery” since there was resort left to Section 24 and then
the question was consensual bribery which is case in most of the cases for fast
speeding the governmental approval process. This was done to make the domestic law
consistent with UNCAC.
It also criminalizes the offence of the fact of bribing by corporate bodies done to the
public servant. The terminology used is the “commercial organization”.
This section has same chronic problem of non-application of mind while lifting the
section from UK Act since it covers the public function or activity which can be
termed as “improper”. This is troublesome for the reason that in India, bribe is most
given to have the ‘proper’ work done i.e. what is a ‘proper’ public function which
actually fell under the official duty. While in UK the money is given to do something
out of turn, in India, it’s given to do something which is the function of public servant
anyway.
The section was intended in UK to emphasize that merely accepting monetary or any
other advantage would be “improper”.
Law Commission recommended amendment of section to bring in more clarity and
make in consonance with ground reality of the menace of corruption.
Thus, while the draft bill pledges allegiance to UNCAC, it has barely anything in
common with UNCAC.
54
Analysis of Section 9 and 10 Prevention of Corruption (Amendment) Bill, 2013
The Section 9 places the liability on the commercial organization for failure to
prevent the persons associated with it from bribing the public servant to obtain/retain
some business or an advantage which is incidental to the business of the commercial
organization.
While in UK, it’s punishable for a private person to bribe another private person or a
public servant in reference to the commercial organization seeking to derive some
business interest. While in India it’s restricted to bribery of the public servant hence
it’s quite distinct and distinguishable from offence under Section 8.
Section 10 of the 2013 Bill places an onerous responsibility on the commercial
organization to extend the liability to every person attached with it. Given the
different phraseology of the beginning of section 10, it is quite clear that it is in
reference to the section 9 and not section 8 thus giving out differential standards for
the same commercial organization i.e. treatment of corporate bribery within the same
statute.
Law Commission of India has given the recommendation of the redrafting the
provision so that the burden of proof can be dealt consistently.
Section 11 of the Prevention of Corruption (Amendment) Bill, 2013
The Section 11 of the PC Act, 1988 dealing with acceptance of valuable things
without consideration by the public servants has been omitted by this amendment as it
is taken to be part of the definition under section 7 dealt previously.
The Law Commission has recommended that there should be redrafting of section 7 if
the section 11 has to be omitted.
Section 12 and 15 of the Prevention of Corruption (Amendment) Bill, 2013
The section 12 of the PC Act, 1988 criminalized the attempt of an offence punishable
under the statute whereas the section 15 criminalizes the attempt to do an offence as
specified under the section 13 (1) (c) and (d) which is equivalent to section 13(a) of
2013 bill.
55
When the sections are read jointly, it’s problematic because the abetment to offence
has punishment of three years while actually committing offence has been prescribed
the punishment of two years. It’s clear as noon day that there is discrepancy in the
sentencing.
The Law Commission has recommended redrafting to remove this anomaly.
Section 17 (A) of the Prevention of Corruption (Amendment) Bill, 2013
This proviso to section 17(A) which relates to the previous approval from Lokpal or
Lokayukta depending on the case for recommendation of case for investigation is
tantamount to resurrecting the repealed section 6A of Delhi Special Police
Establishment Act, 1946 which was struck down by the Supreme Court in Dr.
Subramanium Swamy v Director, CBI73
. Ironically, it’s narrower than the Section 6A
of DSPE Act, 1946 since it provides that even if the person is caught red handed in
taking bribe, it has to be proved by prosecution that it was in intended that such an
acceptance was consequential to the public function or activity being done
improperly.
Law Commission recommended redrafting of the section.
Section 18A-I of the Prevention of Corruption (Amendment) Bill, 2013
Section 18A-N of the bill has provision for attachment and forfeiture of property
which can be done under three other acts as well, which are
(a) The Criminal Law (Amendment) Ordinance 1944
(b) Prevention of Money Laundering Act, 2002
(c) The Lokpal and Lokayukta Act,2013
Under the provision of PCA Bill, 2013, there may be cases were sanction will be
required to take cognizance of the case by the court, however under the provision of
“The Criminal Law (Amendment) Ordinance, 1944” state police/ state anti corruption
bureau can investigate the case and it enables the state to file an application for
attachment merely on the belief that if any person has committed the scheduled
offence and the said person has procured money or other property by means of that
73
AIR 2014 SC 2190
56
offence and the application for attachment of property is not affected with the status
of the charge whether court has taken cognizance of that charge or not. Same time, it
will reduce the load of the cases on Enforcement Directorate lodged under PCA.
Therefore, Law commission has recommended deleting chapter no. IVA of the bill.
2.9 THE LOKPAL ACT, 2013
“14(f) The Lokpal and the officers of its inquiry wing or prosecution
wing shall have jurisdiction under this act in respect of such officers only
after obtaining the consent of the concerned State Government.”
Under the provision of Section 14(f) consent of concerned state government is
required for inquiry and prosecution which may curtail the process of inquiry
and prosecution. Section 23(2) of this Act also illustrate about the mandatory
requirement of prior sanction for prosecution, however, Lokpal itself has
power to grant sanction under section 23(1).
Section 53, of Lok Pal Act 2013 which imposes limitation clause of 7 years
from the time of offence committed and makes the prosecution of corrupt
public servant near impossible; however it is noted that the bank account
transaction is saved in the bank for ten years even after closure of account for
the purpose of tracking the record. When government changes, political
equation takes U-turn then only the high ranking politically patronized
officials or ministers come down on their knees, which sometimes takes years
and putting seven years limitation clause74
for their prosecution drives away
this opportunity from the hands of investigating agencies and also defeats the
very beautiful system of maintaining the checks and balance over monopoly as
well as arbitrary exercise of official power. Similarly, through other various
provisions like Section 7, Section 14(a), Section 14(f) of Lok Pal Act are the
few more examples of implied protection granted to the corrupt public servant
which makes the intentions of the lawmakers very clear. They do not want to
lose their elitism against the crowd of common man.
74
Section 53, The Lok Pal Act 2013
57
CHAPTER III: CORRUPTION AND MENS REA
1. CONCEPT OF MENS REA
Mens rea is fundamental to the criminal law jurisprudence and it is equally applicable
in the trial of corruption cases. If an efficient person remains silent who is capable to
influence the course of corruption, he will be held equally guilty. When a subordinate
officer is involved in corrupt practices and senior officer appointed over him is aware
about his involvement in such act but does nothing to prevent it, however in normal
course he is capable of influencing the course of action of the offender subordinate, in
such case he will be held equally guilty of abetment defined under section 10 of PCA,
1988. The essence of criminal is Latin maxim, “actus non facit reum, nisi mens sit
rea” which signifies that there can be no crime without a guilty mind. To make a
person criminally accountable it must be proved that an act, which is forbidden by
law, has been caused by his conduct, and that the conduct was accompanied by a
legally blameworthy attitude of mind. Thus, there are two components of every crime,
a physical element and a mental element, usually called actus reus and men srea
respectively. Generally the question is raised during criminal trial that whether mens
rea was present or absent in the accused. Sometimes, the question is raised whether it
should be explored or not in certain offence. In statutory offences, it may expressly or
impliedly rule out the application of mens rea. The mere commission of an offence or
violation of law is not sufficient to constitute a crime. It may require some elements of
wrongful intention or other fault. Mens Rea implies some blameworthy conditions of
the mind and the absence of which will negate the condition of crime. It is one of the
necessary factor of criminal liability. A crime is said to be committed only when an
act regarded as an offence in law, if it is done voluntarily. Hence, an act categorizes as
criminal only when it is done with guilty mind. Where a statute criminalizes an act,
the statute may have comprehensive and absolute language, even though it is
generally understood to be silently implying that element of mens rea be imported
into the definition of the offence so defined, unless a contrary intention through the
words and language of the statute clearly or by necessary implication, rules out mens
58
rea as a constituent part of a crime. In the case of Brend v. Wood75
, Lord Goddard,
C.J. held “It is of the utmost importance for the protection of the liberty of the subject
that a court should always bear in mind that, unless a statute, either clearly or by
necessary implication, rules out mens rea as a constituent part of a crime, the court
should not find a man guilty of an offence against the criminal law unless he has a
guilty mind.”
According to Beadle CJ in S v Zemura76
, he observed that statutory offences may be
classified into three broad categories which may conveniently be stated as: (1) strict
liability; (2) mensrea in the form of culpa (negligence); and (3) mens rea in the form
of dolus (intention)77
. “The first category involves offences where the statute imposes
strict liability. In such cases, the State is required to do no more than to establish that
the accused committed the acts constituting the offence and, despite the fact that he
might satisfy the Court that he had no mens rea when he committed those acts, he is
nevertheless guilty. The second category relates to those offences where the onus is
on the State to prove that the accused committed the acts constituting the offence, but
thereafter an evidential onus is thrust on the accused to disprove the inference that he
had the requisite mens rea (culpa) when he committed those acts. In discharging the
evidential onus, it is enough for the accused to give an explanation which will at least
raise a reasonable doubt in the mind of the Court as to whether or not he had such a
guilty mind when he committed the acts alleged in the charge. In other words, it
suffices for the accused to give an explanation which, on a balance of probabilities,
shows that he had no mens rea in the form of culpa when he committed the alleged
acts. The third category is about those offences where the onus is on the State in the
first instance to prove not only that the accused committed the acts constituting the
offence, but also his guilty state of mind when he committed them. In other words, no
inference of mens rea in the form of dolus is drawn from the fact that he committed
the prohibited acts. The State must prove positively that he committed them with a
guilty mind. Hence, the mere fact that he committed the prohibited acts is not
sufficient evidence from which to draw such an inference. Offences falling within
75
[1946] 175 LT 306 1946 76
1974 (1) SA 584 (R,AD) at 586 -7 77
S v Maritz 2004 NR 22 HC at p 23J – 24A
59
this category are usually characterised by words such as: ‘knowingly’, ‘wilfully’,
‘intentionally’, ‘wrongfully’, ‘unlawfully’, et cetera.”78
The question whether mensrea is an element of the offence under trial is to be
established by interpreting the statute in order to deduce there from the essence of the
legislatures intentions where the legislation merely prohibits conduct without
reference to the element of mens rea”79
. In S v Maseka80
the Namibian High Court
observed that “... The defence of ignorance of the law is a defence in common law
crimes as well as in the case of statutory offences, unless the legislature has expressly
or by clearest implication provided for strict liability.”
1. DOCTRINE OF STRICT LIABILITY, CORRUPTION AND MENS
REA
Doctrine of strict liability is inconsistent with the very fundamental rules of criminal
justice system. It is for the prosecution to prove the guilt of accused beyond
reasonable doubt’, which, generally, includes proof of the culpability means that the
accused has committed the unlawful act irrespective of the fact that whether the
offence committed was 'intentional' or 'negligent'. Such situation could result into
conviction despite existing reasonable doubt as to the accused’s guilt. The entire
argument relating to the displacement of mens rea has been beautifully recapitulated
in the Supreme Court of India in its decision of State of Maharashtra vs M.H.
George81
where the accused was prosecuted for bringing into India prohibited
quantity of gold in violation of the prohibition i.e., the Foreign Exchange Regulation
Act 1947 which lays an absolute embargo upon persons who, without permission of
the Reserve Bank, bring or send to India any gold. As a matter of fact the accused,
Mr. M.H. George was a passenger from Zurich to Manila in Swiss plane. On landing
in Bombay, twenty-four kilos of gold bars were found in his jacket, which he had not
declared in manifest of the flight. The holding of the majority was that "mens rea in
the sense of actual knowledge that the act done is contrary to law is not an essential
element under Sec.8 (1) read with Sec.23 (1A) of the Foreign Exchange Regulation
Act, 1947". There was an agreement on the point that unless the statute in question,
78
S v Maritz at p 24 I – 25A 79
F v Els 1972 (4) SA 696 (T) at 699F-H, S v Erasmus 1973 (4) SA TPD at p 483H – 484 See also S v
Williams en Andere 1968 (4) 81 (SWA) at p 85H-86F 80
S v Maseka 1991 NR 249 HC at p 253 B 81
1965 AIR 722
60
either clearly or by necessary implication rules out mens rea as a constituent part of a
crime an accused should not be found guilty of an offence, unless he has got a guilt
mind. They declared that "absolute liability is not to be lightly presumed, but has to be
clearly established".
In the case of Kunal Majumdar v. State of Rajasthan82
, Supreme Court held that
“mensrea” is an important point to consider by the High Court when a case was sent
for its reference for the confirmation of a death sentence under CrPC. In another case
of State of Maharashtra v. Mayor Hans George,83
Court held that mens rea by
necessary implication can be excluded from a statute only where it is absolutely clear
that the implementation of the object of a statute would otherwise be defeated and its
exclusion enables those put under strict liability by their act or omission to assist the
promotion of the law. In the case of Kartar Singh v State of Punjab,84
Court again
entrenched the opinion in law “the element of mens rea must be read into the statutory
penal provision unless a statute either expressly or by necessary implication rules it
out.”
There has been no definite ruling on the point of mens rea in cases of prosecution of
accused involved in corruption. It was pleaded in Dr. Subramanian Swamy v A.
Raja85
that meas rea by Dr. Subramanian Swamy referring to various ingredients of
Section 13(1) (d)(iii) of PC Act and stating that the bare reading shows that mensrea
or criminal intent was not an essential ingredient of that Section referring to the cases
Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of
Customs and Ors.86
, State of Maharashtra v. Hans George87
and R.S. Joshi, Sales
Tax Officer, Gujarat and Ors. v. Ajit Mills Ltd. and Anr88
and submitted the ratio of
above judgments indicate that certain criminal offences imposing punishment of
incarceration need not require mens rea instead strict liability as enumerated in the
statute itself. Dr. Swamy pointed out that the above mentioned statutory provision
would indicate that the emphasis is on "obtains" and "public interest". The Supreme
Court did not rule upon the same. The only case dealing with the mens rea and
82
(2012) 9 SCC 320 83
Supra note 80 84
(1994) 3 SCC 569, 85
AIR 2012 SC 3336 86
AIR 1964 SC 1140 87
AIR 1965 SC 722 88
1977 (4) SCC 98
61
proceedings under the Prevention of Corruption Act, 1988 is the judgment by the
Delhi High Court division bench of Justice S. Ravindra Bhat and Justice G.P. Mittal
was were called upon by the single Judge Dr. S. Muralidhar to determine the true
interpretation of Section 13(1)(d)(iii) with respect to mens rea in case of Runu Ghosh
v CBI89
. Whether for the purposes of Section 13(1) (d) (ii) or (iii) PC Act the
prosecution has to prove mensrea? Whether for recording a conviction, it is necessary
to prove mens rea, or criminal intent, on the part of the accused. The court was
concerned to find out whether the mens rea is impliedly excluded in Sections 13(1)(d)
(ii) and (iii) of the PC Act 1988?
The Court started with comparative analysis of Section 13 (1) (d) of PCA, 1988 with
analogous Section 5(1) (d) of the PCA, 1947
Section 5(1) (d) PC Act, 1947 with Sections 13(1)(d) (i), (ii) and (iii) of the PC Act
1988.
On the comparative analysis the Court found that the in the present Act, Section
13(1)(d)(ii) of the PC Act 1988 is not by word "otherwise " as they were in Section 5
(1) (d) of the PC Act 1947 hence drew the intention that Sections 13(1)(d) (ii) and (iii)
constitute distinct species of offences not related to Section 13(1)(d)(i) which talks of
obtaining by "corrupt or illegal means for himself or for any other person any
valuable thing or pecuniary advantage. " The word "obtains” which is common to
Section 13(1)(d)(i) to (iii) is another key element to the "criminal misconduct ".
The material portion of the reference, while adverting to Sections 13(1)(d) and then
dealing with the phraseology of Section13(1)(d)(iii) and other preceding sub clauses,
reads thus:
Whether the absence of adverbs like "willfully ", "fraudulently ", "dishonestly ",
"corrupt or illegal means " to qualify the verb "obtains " in this clause would mean
that a public servant commits criminal misconduct if he while holding such office
obtains for any person (and not for himself) any pecuniary advantage which is
"without any public interest "? The statute appears to offer no guidance as to what can
be said to be a decision or act that is "without public interest.
89
Runu Ghosh v. C.B.I. CRL. A. 482/2002 21.12.2011
62
Section 5 (1) (d) of the 1947 Act reads as follows:
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public
servant, obtains for himself or for any other person any valuable thing or pecuniary
advantage...
Section 13(1)(d) (i), (ii) and (iii), on the other hand, read thus:
(i) by corrupt or illegal means, obtains for himself or for any other person any
valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or
(iii) while holding office as servant, obtains for any person any valuable thing or
pecuniary advantage without any public interest...
It is clear from the above comparison that in clause (i), the reference to "corrupt or
illegal" means, (of a public servant obtaining -for himself, or someone else-any
valuable thing or pecuniary advantage) has been retained. However, the reference to
doing of such an act "otherwise" (which was there in the previous law, i.e. Section 5
(1) (d)) has been omitted. The latter parts of Section 5 (1) (d), i.e. the public servant
obtaining for himself or for any one else any valuable thing or pecuniary advantage,
by abusing his position as a public servant has been retained, in Section 13(1)(d)(ii).
A new offence (or sub-species, of the existing offence) has been carved out, in
Section 13(1)(d)(iii) which criminalizes, as "criminal misconduct" the act of a public
servant, holding office, which results in someone else ( "any person ") benefiting by
getting a valuable thing or pecuniary advantage, "without any public interest " There
is no doubt that Parliament created this new offence of criminal misconduct, where
abuse of office, or use of corrupt or illegal means by a public officer, is inessential to
prove the crime. What the prosecution has to establish, in accordance with law, is that
the public officer, obtained for someone else - not necessarily by abusing his office, or
using corrupt or illegal means - pecuniary advantage or a valuable thing - without
public interest.
The legislative history of Section 5 would reveal that it was amended repeatedly. The
first amendment, in 1952, introduced Section 5 (4) which clarified that the provision
63
was in addition to, and not in derogation of any other existing law; the second
amendment substituted Section 5(2) which provided for a minimum sentence; it also
introduced sub-section (2-A). The third amendment, brought about in 1964,
introduced a significant change; the controlling expression, or the opening phrase
defining criminal misconduct, under Section 5 when the Act was introduced, and till
its amendment in 1964, was "a public servant is said to commit the offence of
criminal misconduct if he in the discharge of his duty... ". The third amendment
omitted the expression "in the discharge of his duty ". Thus, whether or not a public
servant acted in discharge of his duty, if his conduct fell into the questionable
categories specified in Section 5, he became an offender. The intention was clear: to
cast the net and draw all manner of behavior which was deleterious and injurious to
public functioning, whether the public servant acted in the discharge of his duty, or
otherwise.
The perusal of the Statement of Objects and Reasons for the 1988 Act is guiding light
with respect to the intention of the legislature.
The question which the Court faced was whether mens rea is, like the other
provisions, a necessary pre-requisite or pre-condition which the prosecution has to
establish, from the conduct of a public servant. It would also be relevant here to
mention that Section 13(1)(e) appears to be in line with Section 13(1)(d)(iii) in as
much as there is no pointer to criminal intent. That provision declares that a public
servant in possession of pecuniary resources or property which he cannot
satisfactorily account, or which are disproportionate to his known sources of income
is guilty of criminal misconduct. Here, the sources of income may or may not be
connected with the public servant's duties; the emphasis is on inability to satisfactorily
account, or that the wealth or assets held are disproportionate to the servant's known
sources of income. If the ingredients of the provision are satisfied, it is not necessary
to prove mens rea. Section 13(1)(e) enacts that a public servant is guilty of criminal
misconduct:
Section 13 (1)(e) if he or any person on his behalf, is in possession or has, at any time
during the period of his office, been in possession for which the public servant cannot
satisfactorily account, of pecuniary resources or property disproportionate to his
known sources of income.
64
The ingredients which the prosecution has to prove in relation to this offence, (which
is in pari matri with Section 5 (1) (e) of the 1947 Act, were spelt out in M. Krishna
Reddy v. State Deputy Superintendent of Police 1992 (4) SCC 45 as follows:
“To substantiate a charge under Section 5(1)(e) of the Act, the prosecution must prove
the following ingredients, namely, (1) the prosecution must establish that the accused
is a public servant, (2) the nature and extent of the pecuniary resources or property
which were found in his possession (3) it must be proved as to what were his known
sources of income, i.e. known to the prosecution and (4) it must prove, quite
objectively, that such resources or property found in possession of the accused were
disproportionate to his known sources of income...”
It is clear therefore, that mens rea or criminal intent does not have to be proved in the
case of a charge under Section 13(1)(e); it is enough for the prosecution to establish
the four ingredients of the offence. As noticed earlier, the setting of this provision too
needs to be taken into account, along with the legislative history (of Section 5 of the
earlier Act, with its amendments, and the new Section 13(1)(d) re-cast in a totally
different manner) -it appears immediately after another offence of criminal
misconduct (Section 13(1)(d)(iii)) that does not textually allude to or require intent, or
mens rea.
The Supreme Court, noticing most of the earlier decisions, on the issue, and also the
approach adopted by Courts in England, said, in Nathulal v. State of M.P., AIR 1966
SC 43 that:
“....it is a sound rule of construction adopted in England and also accepted in India to
construe a statutory provision creating an offence in conformity with the common law
rather than against it unless the statute expressly or by necessary implication excluded
mens rea. The mere fact that the object of the statute is to promote welfare activities
or to eradicate a grave social evil is by itself not decisive of the question whether the
element of guilty mind is excluded from the ingredients of an offence. Mens rea by
necessary implication may be excluded from a statute only where it is absolutely clear
that the implementation of the object of the statute would otherwise be defeated. The
nature of the mens rea that would be implied in a statute creating an offence depends
on the object of the Act and the provisions thereof.
65
How to disprove mensrea has been succinctly stated in Halsbury's Laws of England,
3rd Edn., Vol. 10, at p. 283, thus:
“When the existence of a particular intent or state of mind is a necessary ingredient of
the offence, and prima facie proof of the existence of the intent or state of mind has
been given by the prosecution, the defendant may excuse himself by disproving the
existence in him of any guilty intent or state of mind, for example, by showing that he
was justified in doing the act with which he is charged, or that he did it accidentally,
or in ignorance, or that he had an honest belief in the existence of facts which, if they
had really existed would have made the act an innocent one. The existence of
reasonable grounds for a belief is evidence of the honesty of that belief.”
One key element to construing a statute is the object it wishes to advance, and the
mischief it wishes to address itself to. In this regard, it would be useful to recollect the
five judge decision in R.S. Nayak v. A.R. Antulay1984 (2) SCC 183 where the
Supreme Court commented on the object of the 1947 Act:
“The 1947 Act was enacted, as its long title shows, to make more effective provision
for the prevention of bribery and corruption. Indisputably, therefore, the provisions of
the Act must receive such construction at the hands of the court as would advance the
object and purpose underlying the Act and at any rate not defeat it. If the words of the
statute are clear and unambiguous, it is the plainest duty of the court to give effect to
the natural meaning of the words used in the provision...”
Now, the absence of any words or terms in Section 13(1)(d)(iii) cannot drive the
Court to hold that proof of criminal intention is a sine qua non for conviction of an
accused. This is one instance where the object of the enactment, the purpose which it
seeks to achieve, and the prevailing social evil which is sought to be erased become
important. In this context, the need for such purposive approach, rather than adopting
a "liberal" approach, based on the doctrine that every offence carries within it the
presumption that mens rea is a necessary ingredient, was emphasized in Murlidhar
Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684
It was reiterated in Dinesh Chandra Jamnadas Gandhi v. State of Gujarat, (1989) 1
SCC 420:
66
“The courts are greatly influenced in their construction of the statute by the degree of
social danger which they believe to be involved in the offence in question. They take
judicial notice of the problems with which the country is confronted. The greater the
degree of social danger, the more likely is the offence to be interpreted as one of strict
liability. Inflation, drugs, road accidents and pollution are constantly brought to our
attention as pressing evils; and in each case the Judges have at times invoked strict
liability as a protection for society.”
Having regard to the previous history of the statute, the amendments to the 1947 Act,
its avowed objects and the distinctive structure which Parliament adopted
consciously, under the 1988 Act, despite being aware of the pre-existing law, as well
as the decisions of the Court-the conclusion which this Court draws is that mens rea is
inessential to convict an accused for the offence under Section 13(1)(d)(iii). It would
be sufficient if the prosecution proves that the public servant "obtains" by his act,
pecuniary advantage or valuable thing, to another, without public interest. The
inclusion of public interest, in the opinion of the Court, guides in favor of a
construction which does not require proof of mens rea. There can be many acts of a
public servant, which result in pecuniary advantage, or obtaining of a valuable thing
to someone else; typically these may relate to payment of royalty, grant of license or
concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or
other forms of advantages to third parties would not criminalize the public servant's
actions, so long as they have an element of public interest. They (acts of the public
servant) are outlawed, and become punishable, if they are "without public interest".
Having now settled the true interpretation of whether the offence under Section
13(1)(d)(iii) requires proof of mens rea, it would now be vital to settle what really the
prosecution would have to establish to say that the public servant's actions or
decisions, which result in a third party obtaining a pecuniary advantage or valuable
thing, without public interest. The expression "public interest" is known to law; at the
same time its meaning is not rigid, and takes color from the particular statute or policy
(Ref. Srinivasa Co-operative House Building Society v. Madam Gurumurthy
Sastry90
).
90
1994 (4) SCC 675
67
“Public servants are an entirely different class, and the level of trust reposed in them
by the society is reflected in the high standards of behavior and rectitude expected of
them, both in the discharge of their duties, and otherwise. In the case of ministers -
who are members of the council of Ministers (the Cabinet) in the Union and State
Governments, as well as holders of other constitutional offices there is a requirement
that before their appointment, each of them has to subscribe to an oath of office and
secrecy according to the form set out in the Schedule, to the Constitution of India by
which holders of such offices are required to take oath that he or she would discharge
her or his duties in accordance with the Constitution and the law without fear or favor,
affection or ill will. This requirement is a constant reminder to the holder of that
office that she or he is a trustee and custodian of public interest, and all decisions
taken in that capacity are to be based on that factor alone. Holders of other public
offices, under the State are equally bound by such a condition. To ensure that they are
afforded protection and immunity, the Constitution has mandated some safeguards (in
the case of members of a service or holders of office under a State or the Union, the
protection from arbitrary loss of employment, under Article 311, and the protection of
status accorded by virtue of rules or enactments made, pursuant to Article 309 of the
Constitution of India). There is an added layer of immunity in the form of requirement
of sanction under Section 197 or other similar provisions, to protect public servants
from needless harassment. However, when the public servant acts in a manner that is
devoid of public interest, not only would the action become suspect, then, having
regard to the nature of his action, and the heightened degree of blameworthiness, he is
said to have transgressed the bounds of protection afforded to his decisions, and is
then exposed to prosecution.”
From a different perspective, all public office and all State power - even in the
contractual sphere (Articles 298 and 300 of the Constitution) should be exercised for
the people's benefit. A public servant or minister is a trustee (of the power conferred)
and an agent of the Government. In the case of the Minister, he acts as the ultimate
head of his department, and depending on the extent of delegation of responsibilities,
he acts on behalf of the Cabinet, and the Government. Where his acts are to be ratified
by the Council of Ministers, the ultimate responsibility for the decision - or the action,
is that of that collective body, headed by the Prime Minister or the Chief Minister, as
the case may be. If the delegation of powers arrangement empowers a Minister to take
68
the final decision, he is responsible for it, being the ultimate repository of State
power; if it is with the Council, that body, or such of its members who take the
decision, and are empowered to do so, including the head of the Council, are
responsible for the decision or action. It was remarked by the Supreme Court, in
Jaipur Development Authority v. Daulat Mal Jain91
, while examining allotment of
lands by the Minister and the Committee headed him that:
“11. The Minister holds public office though he gets constitutional status and
performs functions under the Constitution, law or executive policy. The acts done and
duties performed are public acts or duties as the holder of public office. Therefore, he
owes certain accountability for the acts done or duties performed. In a democratic
society governed by the rule of law, power is conferred on the holder of the public
office or the authority concerned by the Constitution by virtue of appointment. The
holder of the office, therefore, gets opportunity to abuse or misuse the office. The
politician who holds public office must perform public duties with the sense of
purpose, and a sense of direction, under rules or sense of priorities. The purpose must
be genuine in a free democratic society governed by the rule of law to further socio-
economic democracy. ...
12. ... If the Minister, in fact, is responsible for all the detailed workings of his
department, then clearly ministerial responsibility must cover a wider spectrum than
mere moral responsibility: for no Minister can possibly get acquainted with all the
detailed decisions involved in the working of his department...”
The court, as a consequence has to determine the objective criteria by which acts (of
public servants) "without public interest ", are to be judged, if mens rea (to obtain
pecuniary advantage or valuable thing to another) is not a necessary ingredient. This
exercise is essential because in the absence of mens rea (which has been ruled out) the
court has to say what "acts" resulting in someone obtaining pecuniary advantage or
valuable thing are "without public interest". Obviously the mere fact that a third party
obtains pecuniary advantage, or a valuable thing, is insufficient; a supplier of
equipment to public servants or offices, a travel agent who makes bookings for a
public agency, a businessman or corporate group granted licenses or clearances, by
departments or agencies of the Government, would all stand to benefit. Many of these
91
1997 (1) SCC 35
69
decisions are in fact, and all are, expected to be in public interest. Therefore, the kind
of behavior which amounts to an "act" resulting in someone "obtaining pecuniary
advantage" or "valuable thing" "without public interest" needs to be spelt out.
When a public servant's decision exhibits complete and manifest disregard to public
interest with the corresponding result of a third party obtaining pecuniary advantage
or valuable thing, he is fastened with responsibility for "criminal misconduct" under
Section 13(1)(d)(iii). There is nothing reprehensible in this interpretation, because the
"act" being "without public interest" is the key, the controlling expression, to this
offence. If one contrasts this with "abuse" of office resulting in someone "obtaining"
"pecuniary advantage or valuable thing", it is evident that Section 13(1)(d)(ii) may or
may not entail the act being without public interest. This offence-under Section
13(1)(d)(iii) advisedly does not require proof of intent, or mens rea, because what
Parliament intended was to punish public servants for acts which were affecting
public interest. This kind of offence is similar to those intended to deal with other
social evils, such as food and drug adulteration, (offences under Prevention of Food
Adulteration Act, Section 13(1), Drugs and Cosmetics Act; Section 7(1) Essential
Commodities Act, 1955, Section 25, Arms Act, 1959), possession of explosives, air
and water pollution, etc.
If the public servant is able to show that he followed all the safeguards, and exercised
all reasonable precautions having regard to the circumstances, despite which there
was loss of public interest, he would not be guilty of the offence. The provision aims
at ensuring efficiency, and responsible behavior, as much as it seeks to outlaw
irresponsibility in public servant's functioning which would otherwise go unpunished.
The blameworthiness for a completely indefensible act of a public servant is to be of
such degree that it is something that no reasonable man would have done, if he were
placed in that position, having regard to all the circumstances. It is not merely a case
of making a wrong choice; the decision should be one such as no one would have
taken.
The silence in the statute, about the state of mind, rules out applicability of the mens
rea or intent standard, (i.e. the prosecution does not have to prove that the accused
intended the consequence, which occurred or was likely to occur). Having regard to
the existing law Section 13(1)(e) (which does not require proof of criminal intent) as
70
well as the strict liability standards prevailing our system of law, therefore, a decision
is said to be without public interest, ( if the other requirements of the provision, i.e.
Section 13(1)(d)(iii) are fulfilled) if that action of the public servant is the
consequence of his or her manifest failure to observe those reasonable safeguards
against detriment to the public interest, which having regard to all circumstances, it
was his or her duty to have adopted.
A public servant acts without public interest, when his decision or action is so
unreasonable that no reasonable man, having regard to the entirety of circumstances,
would have so acted; it may also be that while deciding or acting as he does, he may
not intend the consequence, which ensues, or is likely to ensue, but would surely have
reasonable foresight that it is a likely one, and should be avoided. To put it differently,
the public servant acts without public interest, if his action or decision, is by
manifestly failing to exercise reasonable precautions to guard against injury to public
interest, which he was bound, at all times to do, resulting in injury to public interest.
The application of this test has to necessarily be based on the facts of each case; the
standard however, is objective.
As regards the true interpretation of Section 13(1)(d)(iii) the test which is applicable, -
i.e. when the decision or an act of a public servant, (which results in another obtaining
pecuniary advantage or valuable thing) be without public interest, namely, if that
action of the public servant is the consequence of her or his manifest failure to
observe those reasonable safeguards against detriment to the public interest, which
having regard to all circumstances, it was his or her duty to have adopted.
Thus, the Court held that mens rea was not essential ingredient to hold public servant
responsible under section Section 13 of Prevention of Corruption Act, 1988. The
Court relied on the mischief rule of interpretation as well as purposive interpretation
to say that when the statute seeks to address specific issues, nothing more should be
read into it. Public servants construe a different class of persons and their actions
when not in ‘public interest’ and when they have ‘obtained’ any pecuniary or any
other advantage; they must be held liable under the PCA, 1988 on the basis of factual
inquiry. The mens rea is gathered from the chain of action committed by the accused
which points definitely towards the actions done in furtherance of a sought objective.
Division bench of Supreme Court in Vinayak Narayan Deosthali v. C.B.I. declined to
71
interfere in the conviction for conspiracy, forgery, misappropriation and corruption.
Mens rea was gathered from the fact that false Bank Receipts were issued for non-
existent securities.
72
CHAPTER IV: PUBLIC SERVANT
1. WHO ARE PUBLIC SERVANTS
The expression public servants is not defined in the Code of Criminal Procedure, 1973
therefore Section 21 of the Indian Penal Code, 1860 has to be relied upon while
determining the meaning of the expression “public servants” as used in section 197 of
the CrPC.
Section 21 of the Indian Penal Code was clause 14 in the draft Indian Penal Code. The
description of the public servant was objected to at the time of draft as too
comprehensive in nature but the Indian law commissioner overruled the objection and
said that they would be found sufficiently distinct and definite for the purpose they are
to serve. They also stated that they had no apprehension that they would not have any
difficulty in determination of who is a public servant. Section 21 of the Indian penal
code does not give the definition of the term ‘public servant’ but only enumerates the
various categories of persons who can be designated as public servant. The term
signifies any person duly appointed and invested with the authority to administer any
part of the legislative power of the government or to execute any other public duty
imposed by law. It was observed while the framework of the Section 21 would
indicate that the various items are illustrative and not exhaustive. The wording of the
different heads especially ninth and tenth92
was so elaborate and comprehensive that it
amounted to an exhaustive definition. But subsequently there were number of
amendments to section 21 of Indian Penal Code.
Thus, according to the original section 21 of the Indian Penal Code, ‘public servant’
denotes a person falling under any of the following description:
92
Ninth.- Every officer whose duty it is, as such officer, to take, receive, keep or extend any property
on behalf of 7[the Government], or to make any survey, assessment or contract on behalf of the 7[the
Government], or to execute any revenue process, or to investigate, or to report, on any matter affecting
the pecuniary interests of [the Government], or to make, authenticate or keep any document relating to
the pecuniary interests of [the Government], or to prevent the infraction of any law for the protection
of the pecuniary interests of [the Government];.
Tenth. – Every officer whose duty it is, as such officer, to take, receive, keep or expend any property,
to make any survey or assessment or to levy any rate or tax for any secular common purpose of any
village, town or district, or to make, authenticate or keep any document for the ascertaining of the
rights of the people of any village, town or district;
73
1. “Repealed by Adaptation of Laws Order, 1950
2. Every Commissioned Officer in the Military, Naval or Air Forces of
India;
3. Every Judge including any person empowered by law to discharge,
whether by himself or as a member of any body of persons, any
adjudicatory function;
4. Every officer of a Court of justice [(including a liquidator, receiver or
commissioner)] whose duty , as such officer, to investigate or report on
any matter of law or fact, or to make, authenticate, or keep any document,
or to take charge or dispose of any property, or to execute any judicial
process, or to administer any oath, or to interpret, or to preserve order in
the Court, and every person specially authorized by a Court of Justice to
perform any of such duties.
5. Every juryman, assessor, or member of a panchayat assisting a Court of
justice or public servant;
6. Every arbitrator or other person to whom any cause or matter has been
referred for decision or report by any Court of justice, or by any other
competent public authority;
7. Every person who holds any office by virtue of which he is empowered to
place or keep any person in confinement;
8. Every officer of the Government whose duty it is, as such officer, to
prevent offences, to give information of offences, to bring offenders to
justice, or to protect the public health, safety or convenience;
9. Every officer whose duty it is, as such officer, to take, receive, keep or
extend any property on behalf of the Government, or to make any survey,
assessment or contract on behalf of the the Government, or to execute any
revenue process, or to investigate, or to report, on any matter affecting the
pecuniary interests of the Government, or to make, authenticate or keep
any document relating to the pecuniary interests of the Government], or to
prevent the infraction of any law for the protection of the pecuniary
interests of the Government;.
10. Every officer whose duty it is, as such officer, to take, receive, keep or
expend any property, to make any survey or assessment or to levy any rate
or tax for any secular common purpose of any village, town or district, or
74
to make, authenticate or keep any document for the ascertaining of the
rights of the people of any village, town or district.”
Thus the original section 21 of IPC contained only ten clauses which were drafted
when there were corporations, co-operative societies, local bodies, service
commissions, public sector companies and elected legislatures.
The eleventh clause was added by section 2 of the Indian Election Offences and
Enquiries Act, 1920. The eleventh clause reads as:
11. “ Every persons who holds any office in virtue of which he is empowered
to prepare, publish maintain or revise an electoral roll or to conduct an
election or part of an election;”
The twelfth clause was added by Criminal Law Amendment Act, 1958. It
was intended to enlarge the scope of section 21. The original clause ran
as follows:
“Every officer in the service or pay of local authority or of a corporation engaged in
any trade or industry which is established by a Central, Provincial or State Act or of a
Government Company as defined in Section 617 of Companies Act, 1956.”
Thus, the employees of Statutory trading corporations and of government company
fall within the class of public servant as defined in section 21.
Resultantly, every officer in service or pay of local authority or corporation which is
engaged in any trade or industry, whether established by a Central, Provincial or State
Act or of a public company is ‘public servant.’ As the expression ‘local authority’ is
undefined in IPC, the definition given under General Clauses Act, 1897 has to be read
into the section. As per the General Clauses Act, Section 3 which contains definitions
had defined "Local authority". ‘Local Authority’ shall mean a municipal committee,
district board, body of port commissioners or other authority legally entitled to, or
75
entrusted by the Government with, the control or management of a municipal or local
fund.93
The expression ‘corporation engaged in any trade or industry’ used in clause twelfth
includes the banking, insurance, financial corporations, a river valley corporation and
a corporation for supplying power, light or water to public.
Given the experience of the government dealing with corruption soon after the
scandals rocked the newly independent country, in line with K. Santhanam
Committee report, an Act of Parliament, coming into force on December 19, 1964,
namely the Anti-Corruption Laws (Amendment) Act, 1964, the scope of the term
‘public servant’ was increased to as to bring people of certain additional categories
irrespective of service in corporation established by Central government or State
Government. This was done by omission of the words ‘engaged in any trade or
industry in the twelfth clause of Section 21 of Code hence certain category statutorily
of persons were brought under the umbrella of public servants. The effect would be
that for the purpose of anti-corruption laws, employees of all statutory corporations
whether trading or non-trading would henceforth be treated as ‘public servant’.94
The intention of the parliament in enlarging the definition of public servant in
covering the people in employment with Government Company or statutory
corporation with the purpose of stamping out corruption across all levels existing in
the system.
Thus, Section 21 also now includes the person exercising delegated functions of the
government. The term ‘public servant’ may generally be defined to signify any person
duly appointed and invested with authority to administer any part of the executive
power of the government or to execute any other public duty whether it is judicial,
ministerial or mixed. It also includes within its fold delegated function of the
93
http://comtax.up.nic.in/Miscellaneous%20Act/the-general-clauses-act-1897.pdf 94
Clause 12 of Section 21 of Indian Penal Code after the amendments read as follows:
xii. Every person.
(a) In the service or pay of the Government or remunerated by fees or commission for the
performance of any public duty by the Government;
(b) In the service or pay of a local authority, a corporation established by or under a Central,
Provincial or State Act or a Government company as defined in section 617 of the Companies Act,
1956 (1 of 1956).
76
government i.e. there should be flexing of some authority of representative character
or the duties must be immediately auxiliary to those of someone who is so armed.95
The test in order to determine whether an officer or not
1. He is in service or pay of government
2. He is entrusted with performance of public duty96
The Supreme Court has relied on the definition provided under the relevant statute for
culling out the meaning of ‘public servant’ or cross reference it to Section 21 of the
Indian Penal Code, 1860.
Section 2(1) o of Lakpal and Lokayukt Act, 2013 also defines Public Servant for the
purpose of PCA, 1988. The Supreme Court in Justice Ripusudan Dayal (Retd.) and
Ors.v State of M.P. and Ors.97
observed that the phrase "Public Servant" has been
defined Under Section 2(g) of the Lokayukta Act in the following terms:
Public Servant" means a person falling under any of the following categories, namely:
(i) Minister;
(ii) A person having the rank of a Minister but shall not include Speaker and Deputy
Speaker of the Madhya Pradesh Vidhan Sabha;
(iii) An officer referred to in Clause (a);
(iv) An officer of an Apex Society or Central Society within the meaning of Clause (t-
1) read with Clauses (a-1), (c-1) and (z) of Section 2 of the Madhya Pradesh Co-
operative Societies Act, 1960 (No. 17 of 1961).
(v) Any person holding any office in, or any employee of-
(i) A Government Company within the meaning of Section 617 of the Companies Act,
1956; or
(ii) A Corporation or Local Authority established by State Government under a
Central or State enactment.
95
Emperor v Govindram 45 CriLJ 64, Jugal Singh v Emperor AIR 1943 Pat. 315. 96
G A Monterio v State of Ajmer AIR 1957 SC 13 97
AIR 2014 SC 1335
77
(vi) (a) Up-Kulpati, Adhyacharya and KulSachiva of the Indira Kala Sangit
Vishwavidyalaya constituted Under Section 3 of the Indira Kala Sangit
Vishwavidyalaya Act, 1956 (No. 19 of 1956);
(b) Kulpati and Registrar of the JawaharLal Nehru Krishi Vishwavidyalaya
constituted Under Section 3 of the Jawaharlal Nehru Krishi Vishwavidyalaya Act,
1963 (No. 12 of 1963);
Kulpati and Registrar of the Vishwavidyalay constituted Under Section 5 of the
Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 (No. 22 of 1973)
The apex Court in Manish Trivedi v. State of Rajasthan98
observed that the term
public servant meant what is enumerated in the Section 2(c) of the Prevention of
Corruption Act, 1988.99
98
AIR 2014 SC 648 99
2. Definitions.-In this Act, unless the context otherwise requires,-
(a) xxx xxxxxx
(b) xxx xxxxxx
(c) " public servant" means,-
(i) any person in the service or pay of the Government or remunerated by the Government by fees or
commission for the performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or
State Act, or an authority or a body owned or controlled or aided by the Government or a Government
company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a
member of any body of persons, any adjudicatory functions;
(v) any person authorised by a court of justice to perform any duty, in connection with the
administration of justice, including a liquidator, receiver or commissioner appointed by such court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report
by a court of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain
or revise an electoral roll or to conduct an election or part of an election;
(viii) any person who holds an office by virtue of which he is authorised or required to perform any
public duty;
(ix) any person who is the president, secretary or other office-bearer of a registered co-operative
society engaged in agriculture, industry, trade or banking, receiving or having received any financial
aid from the Central Government or a State Government or from any corporation established by or
under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the
Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of
1956);
(x) any person who is a chairman, member or employee of any Service Commission or Board, by
whatever name called, or a member of any selection committee appointed by such Commission or
Board for the conduct of any examination or making any selection on behalf of such Commission or
Board;
(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer
or any other teacher or employee, by whatever designation called, of any University and any person
whose services have been availed of by a University or any other public authority in connection with
holding or conducting examinations;
78
The Division Bench of Supreme Court in Manish Trivedi v. State of Rajasthan100
wherein it was confronted with question whether a municipal councilor could be
prosecuted for an offence under Sections 7, 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 for demand of money illegally. Thus the court
had to first rule upon the fact whether the concerned person fell within the definition
as envisaged under Section 2(c) of the Prevention of Corruption Act, 1988. The Court
reiterated the legislative intent of the Prevention of Corruption Act, 1988 increasing
the scope of the definition 'public servant' to remove the public administration stained
by corruption hence to achieve the aforementioned objective, comprehensive
definition has been used so that from its net, there can be no escaping from
punishment and discouraging corruption. Hence, it would be inappropriate to limit the
contents of the definition clause by a construction which would be against the spirit of
the statute.
Bearing in mind this principle, the person was held to fall under the category of a
‘public servant’ within the meaning of Section 2(c) of the Act. Sub-section (viii) of
Section 2(c) of the present Act makes any person, who holds an office by virtue of
which he is authorized or required to perform any public duty, to be a public servant.
The word 'office' is of indefinite connotation and, in the present context, it would
mean a position or place to which certain duties are attached and has an existence
which is independent of the persons who fill it.
The Apex court made reference to its earlier case of Ramesh Balkrishna Kulkarni v.
State of Maharashtra101
, had previously held that ‘public servant’ is any authority
whose appointment is done by the Government or semi-governmental body and
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or
other institution, in whatever manner established, receiving or having received any financial assistance
from the Central Government or any State Government, or local or other public authority.
Explanation 1.-Persons falling under any of the above sub-clauses are public servants, whether
appointed by the Government or not.
Explanation 2.-Wherever the words "public servant" occur, they shall be understood of every person
who is in actual possession of the situation of a public servant, whatever legal defect there may be in
his right to hold that situation available at
http://www.persmin.gov.in/DOPT/EmployeesCorner/Acts_Rules/PCAct/pcact.pdf 100
AIR 2014 SC 648 101
(1985) 3 SCC 606
79
should be in pay or salary of the same. Additionally, ‘public servant’ has to
discharge his duties in as required by the rules and regulations made by the
government.
The Supreme Court in P.V. Narsimha Rao v. State (CBI/SPE)102
that public servant
is "any person who holds an office by virtue of which he is authorised or required
to perform any ‘public duty’ which means any duty in the discharge of which the
State, the public or that community at large has an interest. The person must hold
the office and also ‘authorized to or required by the virtue of that office to perform
public duty.’ The Constitution Bench unanimously held that parliamentarians are
public servants.
2. WHAT IS GOOD FAITH IN RELATION TO DUTIES OF PUBLIC
SERVANTS?
A very big pertaining to the public servants are their rights and duties both statutorily
and otherwise along with their function in a civil society. The Indian Supreme Court
has observed that ‘a public servant is under a moral and legal obligation to perform
his duty with truth, honesty, honour, loyalty and good faith etc.’ and this performance
has to be in line with the expectation of the office and the nature of the post as he is
legitimately expected to have deference towards the law and order for achieving the
official duty as assigned to him. On the question of good faith, the Supreme Court
observed that the good faith has been defined in Section 3(22) of the General Clauses
Act, 1897, to mean ‘a thing which is, in fact, done honestly, whether it is done
negligently or not. Anything done with due care and attention, which is not malafide,
is presumed to have been done in good faith’. No ‘personal ill-will or malice, no
intention to malign and scandalize’ must be present. Although ‘good faith and public
good are though the question of fact, it required to be proved by adducing
evidence.’103
102
AIR 1988 SC 2120 103
Madhavrao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu & Ors., AIR 1958 SC 767;
Madhav RaoScindia Bahadur Etc. v. Union of India & Anr., AIR 1971 SC 530; Sewakram Sobhani v.
R.K. Karanjiya, Chief Editor, Weekly Blitz & Ors., AIR 1981 SC 1514; Vijay Kumar Rampal & Ors.
v. Diwan Devi & Ors., AIR 1985 SC 1669; Deena (Dead) through Lrs. v. Bharat Singh (Dead) through
LRs. & Ors., (2002) 6 SCC 336; and Goondla Venkateshwarlu v. State of Andhra Pradesh & Anr.,
(2008) 9 SCC 613
80
In Brijendra Singh v. State of U.P. & Ors., AIR 1981 SC 636, the apex Court while
dealing with the issue held:
“…..The expression has several shades of meanings. In the popular
sense, the phrase 'in good faith' simply means "honestly, without fraud,
collusion, or deceit; really, actually, without pretence and without intent
to assist or act in furtherance of a fraudulent or otherwise unlawful
scheme". (See Words and Phrases, Permanent Edition, Vol. 18A, page
91). Although the meaning of "good faith" may vary in the context of
different statutes, subjects and situations, honest intent free from taint of
fraud or fraudulent design, is a constant element of its connotation. Even
so, the quality and quantity of the honesty requisite for constituting 'good
faith' is conditioned by the context and object of the statute in which this
term is employed. It is a cardinal canon of construction that an
expression which has no uniform, precisely fixed meaning, takes its
colour, light and content from the context.”
Thus, ‘good faith’ denotes genuine belief and commands a loyal performance i.e. an
act which proceeds on reliable authority and accepted as truthful is said to be in good
faith. It is the opposed of the aim of deceiving. Hence a duty performed in good faith
fulfilment of trust reposed in an official bearing an allegiance to the superior
authority. Such a duty should be characterised by honesty in intention, and sincerity in
professional execution. Only on the basis of such an assessment that an act can be
presumed to be in good faith for which while judging a case the entire material on
record has to be assessed.104
The qualities which have been listed above attached to official duty have to be culled
out from private act which can also be secretive or mysteriously if so required. Since
an authorised act is or duty is an official act and in linked with authority, it cannot be
something concealed or opaque until and unless protected and mandated by law by
the very nature of functioning like the Official Secrets Act, 1923.
104
Addl. Director General v. CBI, AIR 2012 SC 1890
81
What is an official duty act for the purposes of the protection afforded by the statute
has to be ascertained from facts and circumstances of each case and cannot proceed
on hypothesis. The Act has to be official and not private act which can be
differentiated from the manner in which it has been administered or performed. The
performance of duty acting in good faith has to be done or purported to be done in
exercise of powers given by the statutory provisions for the purpose of requiring
sanction for prosecution.
82
CHAPTER V
PUBLIC SERVANTS, OFFICIAL DUTY AND SANCTIONS
1. OFFICIAL DUTY
Official duty implies that the act or omission must have been done by the public
servant in the course of his service and that it should have been in discharge of his
duty, it must be held to be official.105
In Parkash Singh Badal & Anr. v. State of Punjab &Ors.,106
, the apex Court while
interpreting the phrase “official duty”, held as under:
“…Official duty therefore implies that the act or omission must have been done by the
public servant in course of his service and such act or omission must have been
performed as part of duty which further must have been official in nature. The Section
has, thus, to be construed strictly, while determining its applicability to any act or
omission in course of service. Its operation has to be limited to those duties which are
discharged in course of duty. But once any act or omission has been found to have
been committed by a public servant in discharge of his duty then it must be given
liberal and wide construction so far its official nature is concerned……”107
The Supreme Court has constantly observed that the public servant is “acting or
purporting to act in furtherance of his official duty” if such an act is within the ambit
of his official duty. Regarding the question whether the Judge can be held liable for
the official act, it was held that since a judge neither acts nor purports to act if he
receives bribe though his judgment as his official act like the Medical Officer of
government acting or purporting to act if he picks pockets during the examination of
patient who then is not acting nor purporting to act in discharge of his official duty
cannot be held to be liable under this provision. The acid test is as to whether the
public servant can reasonably be inferred to have acted by virtue of his office but
more importantly what is the quality of the act. The question whether an offence was
105
State of Himachal Pradesh v M.P. Gupta 2004 SCC (Cri) 539 106
AIR 2007 SC 1274 107
Addl. Director General v. CBI AIR 2012 SC 1890
83
committed in the course of official duty or under colour of office depends on the facts
of each case.108
Such an investigation is necessary for determination of fact whether
the person can be held liable for his act of corruption under law.
This explanation seems to diverge from the liability laid down by the Constitution
bench of Supreme Court wherein the Constitution Bench speaking through B.P.
Sinha, then Chief Justice of India noted the point that ‘criminal misconduct’ is wide in
ambit to stamp out corruption. In this case the appellant who was an Upper Division
Clerk in the office of the Chief Commissioner of Delhi knew one Ram Narain who
was a fireman serving in Delhi Fire Brigade. The appellant took bribe from him for
issuance of license though his functions didn’t pertain to issuance of license. The
argument tendered was that since it was not the duty of accused to issue license, there
was no violation of Section 5 (1)(d). Supreme Court rejected his contention and held
that legislature intentionally broadened the scope of offence so as to penalize, holding
public office and taking advantage of their position obtain any valuable thing or
pecuniary advantage. The ingredients of the particular offence in clause (d) of section
5(1) of the Act are; (1) person should be a public servant; (2) usage of corrupt or
illegal means or otherwise abuse his position as a public servant; (3) obtaining thereby
a valuable thing or pecuniary advantage; and (4) for himself or for any other person.
For conviction under the clause (d) of the section, it’s not essential that a person who
has misconducted himself should have done that in discharge of his official duty. It
would be anomalous to say that a public servant has misconducted himself in the
discharge of his duty. "Duty" and "misconduct" go ill together. If a person has
misconducted himself as a public servant it would not ordinarily be in the discharge of
his duty, but the reverse of it. That 'misconduct', which has been made criminal by
section 5 of the Act, does not contain the element of discharge of his duty, by public
servant, is also made clear by reference to the provisions of clause (c) of section 5(1).
This becomes important for the fact that if the public servant was not acting in
discharge of official duty, then the requirement of sanction is null whereas if the act
was done in furtherance of official duty, then the requirement of sanction for
prosecution has to be fulfilled.
108
Baijnath vs. State of Madhya Pradesh, AIR 1966 SC 220; S.B. Saha vs. M.S. Kochar, AIR 1979 SC
1841
84
The Supreme Court held, in the case of R. Balakrishna Pillai v. State of Kerala,109
the
Minister of Electricity, Government of Kerala was an accused who was alleged to
have abused his position to allow supply of electricity without the consent of the
Government, then criminal conspiracy has ‘direct nexus with discharge of his official
duties’ raising the requirement of sanction for his prosecution under sec. 197 CrPC.
Thus, the acid test for prosecution of public servant is to find out if the alleged act has
been done in furtherance of official duty enveloped in good faith so as to the legal
protection available against the vexatious and bothering prosecution- sanction does
not become shield to shy away from criminal responsibility of an act of corruption.
2. SANCTION FOR PROSECUTION
Sanction means permission from authority to proceed with the legal proceeding
against the accused. According Section 197 of Criminal Procedure Code, 1973 no
court should take congnizance of any offence alleged to have been committed by a
person who is or was a judge, Magistrate or a public servant falling within the
purview of Section 21 of IPC except within the previous sanction of the appropriate
government. In order to attract Section 197, it is necessary that the accused person
must have committed the offence while acting or purporting to act in discharge of his
official duty. The test is that whether public servant if challenged can reasonably
claim that what he does, he does by the virtue of his office i.e. his act was in
consonance with his official duty. Thus a public servant charged with an offence
under Section 161 of Indian Penal Code cannot justify his act of receiving bribe as an
act done by him by the virtue of the office that he held. No sanction is therefore
necessary for instituting the prosecution against the public servant.110
The division bench of Supreme Court in General Officer Commanding v. CBI and
Anr.111
speaking through Dr. Justice B.S. Chauhan explained the rationale of
protection of sanction afforded to the public servant by means of sanction as sine qua
non requirement under Section 197 Code of Criminal Procedure. The purpose is to
shelter responsible public servants against the institution of possibly vexatious
109
AIR 1996 SC 901 110
H H B Gill v King Emperor AIR 1948 PC 128 111
AIR 2012 SC 1890
85
criminal proceedings for offences alleged to have been committed while acting or
purporting to act as public servants in discharge of their official duty. The legislative
policy is to give appropriate protection to public servants to ensure that no
prosecution is launched against them for their functioning in the discharge of their
official duties without reasonable cause. If the government is satisfied and sanction is
given for prosecution by the government, they have complete control of the
prosecution. This protection has its own limitations and its availability is restricted
acts done by the public servant is reasonably connected with the discharge of his
official duty and is not merely a veneer for doing an objectionable act. Usage of
"official duty" herein denotes that the act or omission must have been done by the
public servant in the course of his service and that it should have been done in
discharge of his duty. If prima facie it’s discovered that act or omission for which the
accused was charged had reasonable connection with discharge of his duty, and then it
must be held to be official to which applicability of Section 197 Code of Criminal
Procedure cannot be disputed.112
Thus for grant or non-grant of sanction for prosecuting erring public servant, the acid
test is to see if there is coherent nexus between the act complained of as an offence
and the duty of the public servant. Sanction becomes necessary even if the act
complained of is an excess of the exact duty of public servant. The question whether a
particular act done by public servant in discharge of his official duty is substantially
one of fact to be determined on the facts and circumstances of each case. Protection is
available only when the alleged act done by the public servant is reasonably
connected with the discharge of official duty and is not merely a cloak for doing an
objectionable act. Even if the public servant acted in excess of his duty, if there is
existence of the said reasonable link, the excess will not deprive him of the said
protection.
112
R. Balakrishna Pillai v. State of Kerala and Anr. AIR 1996 SC 901; S.K. Zutshi and Anr. v. Bimal
Debnath and Anr. AIR 2004 SC 4174; Center for Public Interest Litigation and Anr. v. Union of India
and Anr. AIR 2005 SC 4413; Rakesh Kumar Mishra v. State of Bihar and Ors.AIR 2006 SC 820;
Anjani Kumar v. State of Bihar and Ors.AIR 2008 SC 1992; and State of Madhya Pradesh v. Sheetla
Sahai and Ors. (2009) 8 SCC 617
86
2.1 GRANTING SANCTION FOR PROSECUTION
The act of granting sanction is of an executive nature and not a judicial act. The
satisfaction which the sanctioning authority must have before according is subjective
and not objective in nature. The sanction need not specify the offences as prescribed
precisely as a charge and the omission to mention a particular section of law does not
preclude the prosecution from probing the relevant facts.113
The section 197 does not
prescribe any particular form of sanction but court usually insist on being satisfied
that the sanctioning authority have applied its mind to the facts of the case before
granting sanction and sanction is not arbitrary.114
The question of sanction can be raised and considered at any stage of the proceeding.
On the question of the necessity of sanction for prosecution, the court does not have to
only confine itself to the allegation against the erring public servant but also can
peruse through all the material record when the question for granting sanction is put
up for its consideration.
197. Prosecution of Judges and public servants.
(1) XXX
(a) XXX
(b) XXX
(2) No Court shall take cognizance of any offence alleged to have been committed by
any member of the Armed Forces of the Union while acting or purporting to act in the
discharge of his official duty, except with the previous sanction of the Central
Government.
It has been provided under section 197(2) of Criminal Procedure Code, 1973 on
granting sanction that no court shall take cognizance of any offence alleged to have
been committed by any member of the armed forces of the Union while acting or
purporting to act in discharge of his official duty except with the previous sanction of
113
Gokulchand Dwarkadas Morarka v The King AIR 1948 PC 42 114
Emperor v JehangirCama AIR 1927 Bom 501
87
the Central Government. The Act was enacted to weed out corruption. Section 19(1)
of the Act provided that previous sanction from competent authority is necessary to
take cognizance of an offence punishable under Section 7,10,11,13 and 15 of
Prevention of Corruption Act, 1988 committed by public servants.
Section 19 of the Prevention of Corruption is as follows:
19. Previous sanction necessary for prosecution.--
(1) No court shall take cognizance of an offence punishable Under
Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant,
except with the previous sanction,--
(a) In the case of a person who is employed in connection with the affairs of the
Union and is not removable from his office save by or with the sanction of the
Central Government, of that Government;
(b) In the case of a person who is employed in connection with the affairs of a State
and is not removable from his office save by or with the sanction of the State
Government, of that Government;
(c) In the case of any other person, of the authority competent to remove him from
his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous
sanction as required Under Sub-section (1) should be given by the Central
Government or the State Government or any other authority, such sanction shall be
given by that Government or authority which would have been competent to remove
the public servant from his office at the time when the offence was alleged to have
been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973
(2 of 1974),--
(a) no finding, sentence or order passed by a special Judge shall be reversed or
altered by a court in appeal, confirmation or revision on the ground of the absence
of, or any error, omission or irregularity in, the sanction required Under Sub-
section (1), unless in the opinion of that court, a failure of justice has in fact been
occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error,
omission or irregularity in the sanction granted by the authority, unless it is
88
satisfied that such error, omission or irregularity has resulted in a failure of
justice;
(c) No court shall stay the proceedings under this Act on any other ground and no
court shall exercise the powers of revision in relation to any interlocutory order
passed in any inquiry, trial, appeal or other proceedings.
(4) In determining Under Sub-section (3) whether the absence of, or any error,
omission or irregularity in, such sanction has occasioned or resulted in a failure of
justice the court shall have regard to the fact whether the objection could and
should have been raised at any earlier stage in the proceedings. Explanation.--For
the purposes of this section,--
(a) Error includes competency of the authority to grant sanction;
(b) A sanction required for prosecution includes reference to any requirement that
the prosecution shall be at the instance of a specified authority or with the sanction
of a specified person or any requirement of a similar nature.
The competent authority to grant sanction would be
1. Central government when the public servant is engaged with affairs of Centre
and is not removed from his office by or with sanction of the Central
government.
2. State government when the public servant is engaged with activities of State
and cannot be removed from his office by or with sanction of the State
government.
3. If it is any other public servant, the authority competent to remove from his
office
Two conditions have to be fulfilled before provisions of Section 19(1) of PCA, 1988
become applicable:
1. The offences mentioned therein must be committed by a public servant;
and
2. The person must be employed with the affairs of the Union or a state and
must not be removable from his office save by or with the sanction of the
Central government or the State Government or must be public servant
removable from his office by any other competent authority.
89
If any one of the conditions is lacking, the essential requirements of the Section are
wanting then the Court can take cognizance without the previous sanction. The
provisions cannot create hurdle for the same.
If the investigating agency finds on investigation that prima facie case has been made
out against the accused to place him on trial and accordingly prepares a charge sheet
against him, then only the question of obtaining sanction of the authority under
Section 6(1) would arise. Where the investigating agency finds that no prima facie
case has been made out against the accused, there is no need to sanction from
prosecuting the authority before approaching the court for accepting the report under
Section 173 (2) of Code of Criminal Procedure for discharge of the accused. The
Special Judge however, has the power to direct further investigation into the matter, if
he finds on consideration of the police reports and its accompaniments that the
opinion formed by the investigating officer seeking discharge of the accused is not
based on full and complete investigation.115
In enacting section 19, the legislature accepted the principle that in a serious offence
like corruption which erodes and challenge the morality and integrity, the issue is not
confined only between the accused and the prosecutor but also the State is vitally
concerned. It adversely dents the morale of the public services and hampers the
administrative interest of the State. Given the gravity of the situation and nature of
stakeholders involved, the discretion of prosecution was withdrawn from the
prosecuting agency and vested with the departmental authorities because they could
assess and weigh the accusations in far more dispassionate and responsible manner.
The state obviously was concerned only with those offences which were committed
by public servants while functioning in the capacity and for which they were sought to
be prosecuted while holding such an office. No administrative interest was affected if
prosecution was started against a person who has seized to be a public servant.
The object of Section 19 for that matter section 197 of CrPC is pari materia is that
there should be no unnecessary harassment of public servant. The idea is to save him
115
CBI v Rajkumar Jain 1998 SCC (Cri) 1485
90
from the undue harassment which may be caused if each and every aggrieved and
disgruntled person is allowed to institute a criminal complaint against him. The
protection is not intended to be absolute and unqualified immunity against criminal
prosecution. In a case, where it is seen that sanction order has been passed by an
authority who is competent under the law to represent the State government, the
burden is heavy on the party who challenges the authority of such order to show that
the authority is competent to pass the order of sanction is someone else and not the
one who passed the order in question.
2.2 TAKING COGNIZANCE
The Supreme Court also went to explain the term ‘cognizance’ as understood and
applied for the anti-graft cases. Supreme Court observed:
“In its broad and literal sense, it means taking notice of an offence. This would
include the intention of initiating judicial proceedings against the offender in respect
of that offence or taking steps to see whether there is any basis for initiating judicial
proceedings or for other purposes. The word 'cognizance' indicates the point when a
Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different
thing from initiation of proceedings; rather it is the condition precedent to the
initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases
and not of persons.”116
The Court explained elaborately the method and manner of taking cognizance and
consequently the status of private complaint seeking prosecution of public servant
for want of sanction from competent authority. In the case of State of Uttar
Pradesh v. Paras Nath Singh117
, speaking through Justice Pasayat and construing
the requirement of sanction, held that without sanction, cognizance is barred.
As dealt previously, the Section 197(1) of The Code of Criminal Procedure, 1973
provides protection to a Judge or Magistrate or a Public servant against any offence
alleged to have been committed by him while acting or purporting to act in the
discharge of his official duty from taking cognizance of such offence except with the
previous sanction of competent government authority. This section has three aspects
116
State of West Bengal v. Mohd. Khalid (1995) 1 SCC 684 117
(2009) 6 SCC 372
91
to deal with. Supreme Court’s judgment in Anil Kumar &Ors v. M. K. Aiyappa &
Anr118
highlights the court’s understanding of the third aspect i.e act of “taking
cognizance” by the Court. The word taking cognizance is not defined anywhere in the
statute but it is settled law that when the judicial mind is applied to the case, it is
deemed to be taken cognizance; however directing a police officer under the provision
of section 156(3) of Crpc for further inquiry of the case will not be construed as
applying judicial mind for the purpose of defining the word “taking cognizance”. In
this case, question was raised against the act of Special Judge in referring a private
complain under sec 200 of Cr.P.C for investigation by D.S.P, Lokayukta, in exercise
of powers conferred under sec 156(3) without production of a valid sanction order
under section 19 of PCA, 1988.
Firstly, locus standi of private complain as in the present case has been clarified in
detail by the constitution bench in A.R. Antulay v. R.S. Nayak case that anyone can set
or put the criminal law in motion remains intact unless contra indicated by the
statutory provisions and there is another express provision in law which provides
protection to public servant under sec 197 and therefore it has to be complied with.
Second issue is defining the word “taking ognizance” by the Court. In R.R. Chari v.
State of U.P (1951) SCR 312, the three Judge Bench approved the following
observation made by the Calcutta High Court in “Superintendent of Legal Affairs,
West Bengal v. Abni Kumar Banerjee”119
:
"What is taking cognizance has not been defined in the Criminal Procedure Code and
I have no desire to attempt to define it. It seems to me clear however that before it can
be said that any magistrate has taken cognizance of any offence under section
190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the
contents of the petition but he must have done so for the purpose of proceeding in a
particular way as indicated in the subsequent provisions of this Chapter - proceeding
under section 200 and thereafter sending it for inquiry and report under section 202.
When the magistrate applies his mind not for the purpose of proceeding under the
subsequent sections of this Chapter, but for taking action of some other kind, e.g.
ordering investigation under section 156(3), or issuing a search warrant for the
118
(2013) 10 SCC 705 119
AIR 1950 Cal. 437
92
purpose of the investigation, he cannot be said to have taken cognizance of the
offence.”
In other words, it can be said that first of all court has to decide whether prima facie
case attract the provision of sanction or not. It has to first determine that whether the
offence was done in private capacity or whether it is performed under the colour of
service, which seems very simple to be determined but when comes to reality, in some
complicated cases judges have to decide it based on evidences produced at the time of
admission of complain where he has to apply his judicial mind but for the purpose of
knowing the fact and decide whether sanction from competent authority will be
required or not?
Changing the definition of cognizance mentioned under sec197(1) will affect the very
essence of criminal law jurisprudence as mentioned in A.R. Antulay v. R.S. Nayak120
case and it will land up providing pseudo protection to the public servant even for the
offence committed with his or her private capacity as well because court will be even
barred from admission of the complaint itself without prior sanction of competent
authority which will lead to absolutism, intra departmental nexus and abuse of power
by the officials and ruling party in the country.
2.3 PREREQUISITE FOR SANCTIONS
The Privy Council in Gokul Chand Dwarkadas Morarka v. The King,121
the
prerequisites for a valid sanction was laid down. The requirements for valid sanction
that it must be proved that the sanction was given in respect of the fact constituting the
offence charged. These facts must include the name of individual who has given or
attempted to give the alleged bribe, the amount of bribe and purpose for which the bribe
is given. Unless the illegal gratification is given for the purposes specified under section
161, no offence is committed. The law does not lay down what the minimum facts must
be brought to the notice of the sanctioning authority. The object of requiring sanction to
be obtained before a public servant is prosecuted is that to insulate against irresponsible,
frivolous, vexatious proceedings for the act done in discharge of official duty and to see
120
AIR 1988 SC 1531 121
A.I.R., [1948] P.C. 822
93
that no prosecution is started unless there is some foundation in charges brought122
and
to secure the well-considered opinion of superior authority before prosecution. In other
words, the appropriate authority must be satisfied that there must be prima facie case for
prosecution and this prima facie satisfaction has been imposed as a safeguard before the
actual prosecution commences.123
The intention is not to put a wall around the public
servant but to enable them to perform their duties fearlessly while protecting them from
vexatious, malafide and false prosecution for the acts in performance of duties.124
The
policy is not to set an official above the law. If he commits an offence, he does not
possess peculiar privilege but if one of his official acts is alleged to an offence no
prosecution will be allowed without sanction. But if one of his official act is alleged to
be an offence, no prosecution would be allowed without sanction for the obvious reason
that otherwise the official action would be best by private prosecution, judges would be
charged with defamation, policeman with wrongful restraint. The section is mandatory
in nature and has to be strictly construed. The section forms the basis for exercising
jurisdiction. There cannot be any protection if the act complained against is not in
connection with official discharge of duty.125
The courts are concerned with only one thing and that is to find whether sanction for the
particular prosecution was in fact accorded and the sanction was in respect of a
particular transaction which is the subject matter of charge against the accused. No hard
and fast rule can be laid down as to what facts are necessarily to be brought to the
notice of the sanctioning authority. It is not necessary for the sanction to be in any
particular form or in writing or for it to set out the facts in respect of which it is given.
The desirability such course is obvious because when the facts are not set out in the
sanction, proof has to be given that sanction was given in respect of the facts
constituting the offence charged. But an omission to do so is not fatal so long as the
facts can be and are proved in some other way.126
The burden of proving that the requisite sanction has been obtained rest on the
prosecution and such burden includes proof that the authority has given sanction in
reference to the facts on which the proposed prosecution was to be based and this fact
122
Major J Phillips v State, AIR 1957 Cal 25, R.R. Chari v State of UP AIR 1962 SC 1573 123
R.R. Chari v State of UP AIR 1962 SC 1573 124
S. Banerjee v State AIR 1951 Cal 388 125
PP Unnikrishnan and Anr. v. Puttiyottil Alikutty Anr 2000 (8) SCC 131 126
Biswabhushan Naik v State of Orissa AIR 1954 SC 359; Major Somnath v Union of India AIR 1971
SC 1916
94
may appear on the face of the sanction or maybe proved by extraneous evidence. Where
the facts constituting the offence do not appear on the face of the latter sanctioning
prosecution, it is incumbent on the prosecution to be proved by other evidence that the
material facts constituting the offence were placed before the sanctioning authority.
Where this is not done, the sanction must be held to be defective and an invalid sanction
cannot confer jurisdiction upon the court to try the case127
.
2.4 GRANTING SANCTION
The sanction as envisaged under the Prevention of Corruption, 1988 is not a formality
which has been intended or is automatic. It’s of prime importance that it should be
strictly followed. The objective is that there should be application of mind by the
sanctioning authority in which has to consider all the evidence before itself and then
give conclusion whether to proceed with sanction or not. It should be speaking order
and it should be apparent from the face of record that the sanctioning authority has duly
considered all the evidence and only after taking into account all the circumstances,
sanction the prosecution. Unless proven otherwise by tendering evidence, it should be
presumed that there has been application of mind to the facts and circumstances of the
case.128
In the celebrated case of R.S. Nayak v A.R. Antulay,129
the Supreme Court reiterated the
law in reference to sanction for the prosecution as follows:
1. The object underlying the section 6 of the Prevention of Corruption Act was to
save the public servant from the frivolous, unsubstantial and vexatious
allegation.130
2. The relevant date with reference to which a valid sanction is sine qua non for
taking cognizance of an offence committed by a public servant as required by
Section 6 is the date on which the court is called upon to take cognizance of the
offence of which he is accused. If therefore, when the offence is alleged to have
been committed, the accused was a public servant but by the time the court is
called upon to take cognizance of the offence committed by him as public
servant, he has ceased to be public servant, no sanction would be necessary for
127
Madan Mohan Singh v State of UP AIR 1954 SC 637 128
Jaswant Singh v State of Punjab AIR 1958 SC 124 129
(1984) 2 SCC 183 130
C.R. Bansi v State of Maharashtra 1970 SCC 537
95
taking cognizance of the offence against him.131This approach is in accord with
the policy underlying Section 6 in that a public servant is not to be exposed to
harassment of a frivolous or speculative prosecution.
3. Existence thus of a valid sanction is a pre-requisite to the taking of cognizance
of the enumerated offences alleged to have been committed by a public servant.
The bar is to the taking of cognizance of offence by the court. Therefore, when
the court is called upon to take cognizances of such offences, it must enquire
whether there is a valid sanction to prosecute the public servant for the offence
alleged to have been committed by him as public servant. A trial without a valid
sanction where one is necessary under Section 6 has been held to be a trial
without jurisdiction by the court.
4. Where the accused holds a number of public offices, competent authority to
accord sanction would be the one competent to remove him from the office
which he is alleged to have misused or abused with corrupt motive. The holder
of office alone would have the opportunity to misuse or abuse the office.
Therefore, the corrupt conduct is directly attributable and flows from the power
conferred on the office. This inter-relation and inter-dependence between
individual and the office he holds is substantial and not severable. The offence
would be committed by the public servant by misusing or abusing the power of
the office and it is from that office that the authority must be competent to
remove him so as to be entitled to grant sanction.132
5. A grant of sanction is not an idle formality but a solemn and sacrosanct act
which removes the umbrella of protection of government servants against
frivolous prosecutions and the aforesaid requirements must therefore, be strictly
complied with before any prosecution could be launched against public
servants.133
The authority entitled to grant sanction must apply its mind to the
facts of the case, evidence collected and other incidental facts before, according
sanction. The competent authority alone would be able, when facts and evidence
are placed before him, to judge whether a serious offence is committed or the
prosecution is either frivolous or speculative.
131
Habeebullah v State of Orissa AIR 1995 SC 1123 132
State of Tamil Nadu v. T. Thulasingam and others AIR1995SC1314 where the Supreme Court held
that the sanction granted by the authority superior was validly granted by the competent authority. 133
Mohd. Iqbal Ahmad v. State of Andhra Pradesh AIR 1979 SC 677
96
In this case, by the time the court was called upon to take congnizance of the offence so
alleged in the complaint, the accused had seized to hold the office of the chief Minister,
therefore no sanction to prosecute was necessary as he ceased to hold the office of Chief
Minister.This was position relating to sanction for prosecution of public servant for
bribery and corruption till the enactment of Prevention of Corruption Act, 1988.
The prerequisite for sanction of public servants has led to many situations in the past
wherein it has acted as shield from prosecution in cases of corruption in spite of the
overwhelming evidence. In corruption cases, the want of sanction is not a popular
rationale with modern-day judges since it is believed that such defence only affords
an extra layer of protection for the corrupt. It is in this background that the Supreme
Court has held that sanction is not required for prosecution of public servants who are
no longer holding the same post or office during which alleged offense was
committed; similarly where person ceases to be a public servant like after order of
dismissal, the possibility of ‘being needlessly harassed would not arise at all and his
trial could not be held to be bad for the lack of prosecution’134
as held in cases
involving various Chief Ministers of different states indulging in corruption. Prakash
Singh Badal v. State of Punjab 2007 (1) SCC 1 as also the relied on judgment in RS
Nayak v. A R. Antulay135
was not correct and required reconsideration and urged for a
reference to a Larger Bench. The judgments in Balakrishnan Ravi Menon v. Union of
India136
, K. Karunakaran v. State of Kerala137
and Habibullah Khan v. State of
Orissa and Anr.138
, Supreme Court had clearly laid down the law and had held that
where the public servant had abused the office which he held in the check period but
had ceased to hold "that office" or was holding a different office then a sanction
would not be necessary.
It is well settled law that when a public servant commits several offences in the
course of same transaction and if the more serious offence requires a previous
sanction, then prosecution has to get the sanction and by no means it would be open
134
See also the cases of V.S. Achuthanandan v State of Kerala & Anr. 2007 (1)SCC 61 and Lalu
Prasad Yadav v State of Bihar 135
1984 (2) SCC 183 136
2007 (1) SCC 45 137
2007 (1) SCC 59 138
1995 (2) SCC 437
97
to the prosecution to ignore serious change and prosecute the offenders for the less
serious charges which do not require previous sanction.139
2.5 CONSTITUTIONAL VALIDITY OF SANCTION
Article 30 (2) of “United Nation Convention against Corruption” describes about
balancing immunity or privileges accorded to its public officials for the efficient
performance of their duties as part of state function and conditions required to be
created for fair and effective investigation, prosecution and adjudication of offences
alleged to be committed by the public servant.
Article 30(3) conveys its intention about the use of any discretionary legal
powers under its domestic law relating to prosecution of the offender are to be
exercised to maximize the effectiveness of law enforcement measures in respect of
illustrated offences to create a deterring effect.
Article 30 of UNCAC talks about balancing of immunity to the public servant alleged
to be indulged in corruption with requirement of effective investigation and
prosecution. This immunity to the public servant is not granted to them for the
purpose of ‘elite treatment’, but for the purpose of smooth function of the system “in
public interest” where he is employed as a public servant not as the arbitrary
monarch. He owes duties and fair amount of responsibility to the citizen of the state,
which is the reason he or she has been enabled with protection under the domestic
law. But if he abuses “breach of trust” through unaccountable actions with official
capacity then he is liable to be prosecuted by the law of the land.
“Equality before the Law” is one of the very fundamental principle of Rule of Law.140
“Right to Equality” is not only a negative right not to be discriminated against but
also a positive right to be treated as an equal. Under the second aspect of the right,
which is the core of the right, the state is under an obligation to ensure that everyone
is paid equal concern which he is entitled to as a human being. Protecting corrupt
public servant through the mandatory provision of sanction prior to prosecution
facilitates special privileges which sound contrary to the very essence of “the equal
139
N. Brahmeswara Rao v. Sub Inspector of Police, 1978 AIR 718
140 A.V DICEY, LAW OF THE CONSTITUTION (London:Macmillan,10
th Edn, 1959) p187
98
protection of laws”. It is well established rule that the same or uniform treatment of
unequals is as bad as unequal treatment of equals.141
It is true that statute books are full of special legislation applicable only for the
particular groups or classes. Such statutes undoubtedly differentiate between
individuals belonging to one class and the others, but that it does not declare the
legislature contrary to Article 14. But at the same time, the classification has to be
reasonable and should have just relation to the objective in respect of which the
classification is sought for. It has to fulfill two conditions to pass the test of
reasonable classification:
1) The classifications has to be based on an intelligible differentia
which differentiates persons or things that are grouped together
from others who are kept out of the group;
2) The differentia must have a rational relation to the “object” sought
to be achieved by the statute in question. If the object sought itself
is illegal, then also the statute will not pass the classification test.
There is no right to equality in illegal acts.142
In Matajog Dobey v. HC Bhari,143
Court held that the discrimination under Section
197 of Crpc satisfy both the condition illustrated in the last paragraph and therefore
the provision of Section 197 of Crpc purports a reasonable classifications and it is not
contrary to the Article 14 of the Indian Constitution.
A public spirited person and a practising advocate Manzoor Ali Khan filed public
interest litigation in Supreme Court of India to declare the sanction required under
Section 19 of Prevention of Corruption Act, 1988 as unconstitutional thereby
prosecuting the individuals alleged to have abused their public office for private gain.
The Supreme Court was given list of cases where the incumbent office holder was not
prosecuted for the want of sanction which included the high and mighty of politics
mostly the Union Ministers, Chief Ministers and Cabinet Ministers of State. It was
submitted in Supreme Court the list of high governmental constitutional authority
holders like where because no sanction was granted, the concerned authorities were
141
Premchand Somchand Shah v. UOI (1991) 2SCC 48 142
Shashikant Laxman Kale v. UOI (1990) 4 SCC 366,372 143
AIR 1956 SC 44
99
not prosecuted. In Common Cause, a registered Society v. Union of India and Ors.144
,
Captain Satish Sharma, who was the Union Minister for Petroleum and Natural Gas
acted in wholly malafide manner in distribution of the petrol pumps. The minister had
deliberately acted in a biased manner to favour allottees and as such the allotment
orders are wholly vitiated. The sanction was refused, he could not be prosecuted. In
the case of Shiv Sagar Tiwari v. Union of India and Ors.145
, Shiela Kaul, who was
Minister for Housing and Urban Development, Government of India was arraigned
for making arbitrary, mala fide and unconstitutional allotments but still she could not
be prosecuted because no sanction was given, M.C. Mehta (Taj Corridor
Scam) v. Union of India and Ors.146
, Mayawati, the then Chief Minister of U.P. and
Shri Nasimuddin Siddiqui, the then Minister for Environment, U.P. were indicted and
allegations against them were noticed but they could not be prosecuted in the absence
of sanction. In Prakash Singh Badal and Anr.v. State of Punjab and Ors.147
, Lalu
Prasad @ Lalu Prasad Yadav v. State of Bihar Thr. CBI (AHD) Patna148
and K.
Karunakaran v. State of Kerala 2007 (1) SCC 59, validity of requirement of sanction
was not gone into on the ground of absence of challenge to its validity.
Mr. Manzoor Ali Khan who sought direction from the Supreme Court of India to
declare Section 19 of the Prevention of Corruption Act, 1988 unconstitutional and to
direct prosecution of all cases registered and investigated under the provisions of
Prevention of Corruption against the politicians, M.L.As, M.Ps and Government
officials, without sanction as required Under Section 19 of the Prevention of
Corruption. Referring to several instances including those noticed by this Court in
various orders, it is submitted that the provision for sanction as a condition precedent
for prosecution is being used by the Government of India and the State Governments
to protect dishonest and corrupt politicians and Government officials. The discretion
to grant sanction has been misused.
The Supreme Court in Manzoor Ali Khan v. Union of India149
declared that the
“requirement of sanction has salutary object of protecting an innocent public
servant against unwarranted and mala fide prosecution. Undoubtedly, there can be
144
(1996) 6 SCC 593 145
(1996) 6 SCC 599 146
(2007) 1 SCC 110 147
2007 (1) SCC 1 148
2007 (1) SCC 49 149
AIR 2014 SC 3194
100
no tolerance to corruption which undermines core constitutional values of justice,
equality, liberty and fraternity. At the same time, need to prosecute and punish the
corrupt is no ground to deny protection to the honest. Mere possibility of abuse
cannot be a ground to declare a provision, otherwise valid, to be unconstitutional.
The exercise of power has to be regulated to effectuate the purpose of law.”
The Supreme Court, alarmed with the situation at hand wherein balance has to be
struck between maintenance of integrity and bringing people to justice who abuse
their public office for impunity laid down guidelines for sanctions and in a way
revolutionized the way the sanction has to be granted effectively within period of
three months maximum.
Thus when the application is made for grant of sanction, it also part of duty to duly
and legitimately consider and not to refuse or recuse from grant of sanction for
prosecution due to political or any other extraneous factor. It all seems to be very
organized and gelled community of people indulging in financial malpractices with
impunity at the cost of public exchequer.
The act of refusal of sanction throws spanner in the wheel of justice by not setting
the criminal law in motion for want of sanction which is fundamental and
legitimate right of the citizen to have access to justice. This in turn frustrates the
right to judicial remedy which is fundamental right enshrined in the constitution.
There is deliberate omission of time limit in section 19 which in effect thwarts any
attempt to bring the high and mighty wrongdoer to justice. This has armed
sanctioning authority with unbridled, uncanalised power which has resulted in
sheltering the guilty and perpetuating the criminality and injustice in society. This
is demoralizing to the whole citizenry.
The Supreme Court left it to the Parliament to frame guidelines for the grant of
sanction in consonance with rule of law and Article 14 of the Constitution. The
same are:
(a) All proposals for sanction placed before any sanctioning authority empowered
to grant sanction for prosecution of a public servant Under Section19 of the
101
Prevention of Corruption must be decided within a period of three months of the
receipt of the proposal by the authority concerned.
(b) Where consultation is required with the Attorney General or the Solicitor
General or the Advocate General of the State, as the case may be, and the same is
not possible within the three months mentioned in Clause (a) above, an extension of
one month period may be allowed, but the request for consultation is to be sent in
writing within the three months mentioned in Clause (a) above. A copy of the said
request will be sent to the prosecuting agency or the private complainant to intimate
them about the extension of the time-limit.
(c) At the end of the extended period of time-limit, if no decision is taken, sanction
will be deemed to have been granted to the proposal for prosecution, and the
prosecuting agency or the private complainant will proceed to file the charge-
sheet/complaint in the court to commence prosecution within 15 days of the expiry
of the aforementioned time-limit.
The competent authority has to take a decision on the issue of sanction
expeditiously as already observed. A fine balance has to be maintained between
need to protect a public servant against mala fide prosecution on the one hand and
the object of upholding the probity in public life in prosecuting the public servant
against whom prima facie material in support of allegation of corruption exists, on
the other hand.
2.6 LOCUS STANDI FOR FILING OF SANCTION APPLICATION
The Supreme Court has now taken up almost vigilante role in checking in corruption
by the high and mighty which is prophetically illustrated by the 2G scam case where
the Supreme Court held that a private citizen can seek prosecution of public servant
for abuse of public office and that sanction cannot be kept at dilatory stage by
perpetually cloaking in administrative jargon.
The Supreme Court was called onto decide whether a complaint can be filed by a
citizen for prosecuting a public servant for an offence under the Prevention of
Corruption Act. It seemed that the Division Bench of Supreme Court of Justice G.S.
Singhvi and A.K. Ganguly in Dr. Subramanian Swamy v. Dr. Manmohan Singh and
Anr150
probably inspired by the evocative expression of Justice Vivian Bose in
150
AIR 2012 SC 1185
102
Virendra Singh and Ors. v. The State of Uttar Pradesh AIR 1954 SC 447, “We are no
longer concerned with principalities and powers. We have upon us the whole armour
of the Constitution and walk from henceforth in its enlightened ways, wearing the
breastplate of its protection provisions and flashing the flaming sword of its
inspiration.” At the direction of the division bench, the criminal cases had been
directed to be filed against the persons directly responsible & involved. If the ends of
justice so require, the Supreme Court can adopt a proactive role and descend into the
arena of conflict far from the supervisory role it normally adopts. The 2G scam
involved the Union Minister of Telecommunications and the high ranking officials in
collusive manner distributing the spectrum that caused the public exchequer loss of
more than Rs. 50,000 crores and shook the conscience of nation.
The Supreme Court answered in affirmative to the question of private citizen seeking
sanction for prosecution as well as laid down time frame for grant of the same in
pursuance to the Supreme Court decisions.
Review petition was filed by Manmohan Singh which was dismissed by Division
Bench of Justice G.S. Singhvi and Justice K.S. Panicker Radhakrishnan who
observed that ‘in the garb of review, the petitioner cannot seek re-hearing of the
matter and re-consideration of the issues decided by the Court.’151
2.7 SANCTION AND RETIRED PUBLIC SERVANT
In the case of State of Maharastra v. Dr. Budhikota Subha Rao152
, court held that
absence sanction by the appropriate authority which is mendatory under section 197
of Crpc for prosecuting a retired public servant for the violation of the provision of
the Official Secret Act, 1923 and the Atomic Energy Act, 1962, vitiates the
proceedings initiated against him. It is held that for an offence committed on duty,
sanction is required for prosecution even for the retired public servant.
151
Manmohan Singh v. Subramanian Swamy and Anr 2012(2)Crimes214 152
1993 (1) Crimes 1124 (SC)
103
2.8 SANCTION AND JUDICIAL REVIEW
Judicial review is designed to prevent the arbitrary use of power and neglect of
official duty by public authorities. Sanction is an administrative action and therefore
the principle of natural justice will apply on non grant of sanction. Lord Wright once
said, “If the principles of natural justice are violated in respect of any decision it is,
indeed, immaterial whether the same decision would have been arrived at in the
absence of the departure from the essential principles of justice. The decision must be
declared to be no decision”153
.
The official action by the government has a public element, fairness and equality has
to be observed in exercise of its executive power. Even in exercise of discretionary
power in any administrative decision, state action should be reasonable and
rational.154
Article 14 of constitution of India requires the strict adherence of the
principles of natural justice, including the requirement of highly reasoned decisions
in exercise of official discretion.155
As locus standi of an individual is established in Subramanian Swamy v. Director
CBI, an individual complainant can also file a writ petition against the non grant of
sanction. The ground for judicial review of the decision can be based upon the
argument of procedural deficiency156
or the reasons illustrated are not adequate for
non granting sanction by the competent authority. The reasons for the decision must
be intelligible and they must be adequate157
. Administrative decisions are taken
through a certain procedure like up the chain hierarchy write down their opinions and
comments on the minute sheet and then the decision is arrived at. Adherence to proper
departmental procedure implies proper application of mind by the authority granting
or non granting sanction and any deficiency in it can become a good ground for
challenging the decision taken. Even in comments recorded on the minute sheet, there
are adequate and reasonable justifications required to be illustrated in writing and that
reasons and such justifications are required to be based on existing facts of the case. If
there is any discrepancy noticed in the procedure illustrated above for non granting
153
General Medical Council v. Spackman 1943 AC 627 at 644 154
New Horizon Ltd v. UOI (1995) 1 SCC 478 155
Maneka Gandhi v. UOI 1978 AIR 597
156 Lloyd v. Mc Mahon 1987 AC 625
157 Wade & Forsyth, Administrative Law, Oxford University Press, 10
th Edn, 2009
104
sanction; then it can be subjected to judicial review. However, decision of the
competent authority refusing sanction cannot be challenged if it has fulfilled the
criteria mentioned above.
`
105
CHAPTER VI
SUMMATION, CONCLUSION AND RECOMMENDATION
SUMMATION AND CONCLUSION
Corruption is a socio- legal phenomenon and therefore it needs to be addressed in that
perspective. After analyzing the domestic legal frame work mend for providing
immunity to a corrupt public servant, it is observed that there are listed offences
illustrated under section 7, 10, 11 and 13 of PCA, 1988 which are available to enlist
and define corruption. Other than this, no legal definition is available for it in the
statute. As per the provision of PCA, 1988 following offences done by public servant
are punishable:-
(a) Taking gratification other than legal remuneration in respect of an official
act
(b) He is abetting the offence illustrated in section 8 and 9 of the act
(c) If he is found guilty of criminal misconduct which talks about habitually
accepting or obtains or agrees to accept or attempts to obtain gratification
other than legal remuneration or any valuable things without consideration
or with insufficient consideration or dishonestly or fraudulently
misappropriates or otherwise converts any property for his own use any
property entrusted to him or under his official control or by corrupt means
obtains for himself or for any other person any valuable things or
pecuniary advantage with or without public interest.
History of anti corruption effort in India from pre indepent trial under section 161 to
section 165 of IPC, the enactment of PCA in 1947 and 1988, RTI Act, 2005, pending
amendment bill of 2013 for the Prevention of Corruption Act and the Lokpal and
Lokayukt Act, 2013 narrates the story of anti corruption efforts our legislature has put
to build India as a corruption free country. The Anti corruption frame work in India
had gone through a redical change after the enactment of Right to information Act,
2005 and it was later on supplemented by The Lokpal and Lokayukt Act, 2013.
However, these two acts in themselves need some improvements, like section 8(c) of
the RTI Act which put no obligation on the concerned authority to disclose the
information which would cause a breach of privilege of parliament or the state
106
legislature and so it elludes the very purpose of transparency for which this act was
enacted. Section 19 of PCA, 1988 provides protection to the public servant against
prosecution in corruption cases in terms of requirement of sanction by the competent
authority for the purpose of taking cognizance of the offence by the court for the
purpose of trial. However, it does not debars investigation and inquiry of the case
which is a crucial point for the purpose of strengthening the anti corruption law.
The essence of criminal law is Latin maxim, “actus non facit reum, nisi mens sit rea”
which signifies that there can be no crime without a guilty mind. Mens rea is
fundamental to the criminal law jurisprudence and it is equally applicable in the trial
of corruption cases under section 7, 8, 9, 10 and 11 of PCA, 1988 as all five sections
use the word agrees to attempt or attempts to obtain or accepts or obtains any
valuable things….; in section 7 and 9 use the word “as a motive of reward” which
itself shows the element of mens rea required for the application of these section
during trial. In the case of State of Maharashtra v. Mayor Hans George,158
Court held
that mens rea by necessary implication can be excluded from a statute only where it is
absolutely clear that the implementation of the object of a statute would otherwise be
defeated and its exclusion enables those put under strict liability by their act or
omission to assist the promotion of the law. There is nothing expressed or by
necessary implication seems to be excluding the element of mens rea from these
sections. However, for the offence committed under section 13(1) (a), (b) and (c) of
PCA, 1988, by virtue of its perpetuity, there remains no doubt about the intention of
the offender and therefore leaves very less scope for the application of mens rea as a
good defence.
In M. Krishna Reddy v. State Deputy Superintendent of Police 1992 (4) SCC 45 court
held on the appeal filed in year 1988, “To substantiate a charge under Section 5(1)(e)
of the PCA, 1947 the prosecution must prove the following ingredients, namely, (1)
the prosecution must establish that the accused is a public servant, (2) the nature and
extent of the pecuniary resources or property which were found in his possession (3) it
must be proved as to what were his known sources of income, i.e. known to the
prosecution and (4) it must prove, quite objectively, that such resources or property
158
Supra note 80
107
found in possession of the accused were disproportionate to his known sources of
income...”
It is clear therefore, that mens rea or criminal intent does not have to be proved in the
case of a charge under Section 13(1)(e); it is enough for the prosecution to establish
the four ingredients of the offence. As noticed earlier, the setting of this provision too
needs to be taken into account, along with the legislative history (of Section 5 of the
earlier Act, with its amendments, and the new Section 13(1)(d) re-cast in a totally
different manner) -it appears immediately after another offence of criminal
misconduct (Section 13(1)(d)(iii)) that does not textually allude to or require intent, or
mens rea. In bribery case, again intention of the bribe giver is important fact to be
noticed for determining the guilt. In trial, it has to be established that the officer
received the bribe had received the money/any valuable thing not as loan or in a good
faith159
. Logically, the intention of the accused is required to be ascertained in such
cases.
Section 21 of IPC, section 2(c) of PCA, 1988 and section 2(1)(o) of The Lokpal and
Lokayukt Act, 2013 also defines Public Sevant. However, Supreme Court, in the case
of Manish Trivedi v. State of Rajasthan, AIR 2014 SC 648, held that the term public
servant meant what is enumerated in the section 2(c) of the PCA, 1988. In P.V.
Narsimha Rao v. State (CBI/SPE), AIR 1988 SC 2120, court held that Public Servant
is “any person who holds an office by virtue of which he is authorized or required to
perform any ‘public duty’ which means any duty in the discharge of which the state,
the public or that community at large has an interest. The person must hold the office
and also’authorized to or required by the virtue of that office to perform public duty”.
In Prakash Singh Badal v. State of Punjab case, Supreme Court held “… Official duty
therefore implies that the act or omission must have been done by the public servant
in course of his service and such act or omission must have been performed as part of
duty which further must have been official in nature. The Section has, thus, to be
construed strictly, while determining its applicability to any act or omission in course
159JOEL PAULUS v. THE STATE, case no. CA 24/2009, Namibian High Court, Namibia
108
of service. Its operation has to be limited to those duties which are discharged in
course of duty. But once any act or omission has been found to have been committed
by a public servant in discharge of his duty then it must be given liberal and wide
construction so far its official nature is concerned……”160
The Supreme Court has constantly observed that the public servant is “acting or
purporting to act in furtherance of his official duty” if such an act is within the ambit
of his official duty. It denotes that the act or omission must have been done by the
public servant in the course of his service and that it should have been done in
discharge of his duty. There has to be reasonable connection of the act in question
with discharge of his duty.
Section 197(1) of Crpc, section 19 of PCA, 1988 and section 14 (f) alongwith section
23 of The Lokpal Act, 2013 extends legal protection against prosecution of public
servant in corruption cases. However, Article 30 (2) of “United Nation Convention
against Corruption” describes about balancing immunity or privileges accorded to its
public officials for the efficient performance of their duties as part of state function
and conditions required to be created for fair and effective investigation, prosecution
and adjudication of offences alleged to be committed by the public servant.
Special provision of sanction for investigation in corruption cases, where the officer
at the rank of joint secretary or above is involved, is antithesis to the concept of
equality and hence court struck down section 6A of the DSPE Act, 1946161
.
Protecting corrupt public servant through the mandatory provision of sanction prior to
prosecution facilitates special privileges which sound contrary to the very essence of
“the equal protection of laws”. It is well established rule that the same or uniform
treatment of unequals is as bad as unequal treatment of equals162
.
It is true that statute books are full of special legislation applicable only for the
particular groups or classes. Such statutes undoubtedly differentiate between
individuals belonging to one class and the others, but that it does not declare the
legislature contrary to Article 14. But at the same time, the classification has to be
160
Addl. Director General v. CBI AIR 2012 SC 1890 161
Dr. Suramanium Swamy v. Director, CBI & Anr, (1997) 1 SCC 409 162
Premchand Somchand Shah v. UOI, [(1991) 2SCC 4
109
reasonable and should have just relation to the objective in respect of which the
classification is sought for. It has to fulfill two conditions to pass the test of
reasonable classification:
1) The classifications has to be based on an intelligible differentia
which differentiates persons or things that are grouped together
from others who are kept out of the group;
2) The differentia must have a rational relation to the “object” sought
to be achieved by the statute in question. If the object sought itself
is illegal, then also the statute will not pass the classification test.
There is no right to equality in illegal acts.163
Provision of sanction is enacted only for the officers performing public duty and the
object behind it is to protect them from vexatious, malafide and false prosecution for
the act done in performance of duties. In Matajog Dobey v. HC Bhari,164
Court held
that the discrimination under Section 197 of Crpc satisfy both the condition illustrated
in the last paragraph and therefore the provision of Section 197 of Crpc purports a
reasonable classifications and it is not contrary to the Article 14 of the Indian
Constitution.
Court has passed direction for grant of sanction within three months and on
reasonable ground, one month of extension period can be granted to competent
authority for grant of sanction by the court and if the sanction is not granted within
stipulated time than it is deemed to be granted.165
If the principles of natural justice are violated in respect of any decision it is, indeed,
immaterial whether the same decision would have been arrived at in the absence of
the departure from the essential principles of justice. The decision must be declared to
be no decision”166
.The official action by the government has a public element,
fairness and equality has to be observed in exercise of its executive power. Even in
exercise of discretionary power in any administrative decision, state action should be
reasonable and rational.167
Article 14 of constitution of India requires the strict
163
Shashikant Laxman Kale v. UOI (1990) 4 SCC 366,372 164
AIR 1956 SC 44 165
Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 166
General Medical Council v. Spackman 1943 AC 627 at 644 167
New Horizon Ltd v. UOI (1995) 1 SCC 478
110
adherence of the principles of natural justice, including the requirement of highly
reasoned decisions in exercise of official discretion.168
Granting sanction is an
administrative act and nongrant of sanction can be put to judicial review on certain
grounds as illustrated in page no. 103.Therefore, we can now conclude it as sanction
is not an absolute hurdle in prosecuting corrupt public servants.
RECOMMENDATIONS
Throwing weight of the office to which an individual is holding for the purpose of
demanding an undue privilege is a passive form of corruption. Ego, self thinking,
arbitrary exercise of discretion and intellectual dishonesty in decision making by a
public servant is another form of corruption which is often noticed in the court’s
judgment and policy making process of the government; sometimes, a voluntary act
of corruption by senior high ranking official becomes compulsion for the subordinate
officers which is required to be dealt with due caution so that the legitimate interest of
individual officer who is at fore front of offence done under undue influence or
coercion can be protected and PC Act,1988 lacks on this aspect.
The provisions of PCA, 1988 does not cover a wide definition of corruption and it
explains only about the offence committed in terms of gratification, taking valuable
things or pecuniary advantage or misappropriation of public property entrusted to a
public servant but does not cover issues like post retirement favours by the political
leadership in lieu of benefits derived out of bias decisions taken by the public servant
during his service tenure with the expectation of deriving such benefit in future that to
after retirement. In this definition, a bias decision- making by the parliament is not
incorporated where decisions are taken and laws are enacted to favour particular
group of people against the constitutional values in the hope of deriving intangible
benefits in future. Therefore act of parliament should also be recommended to be
incorporated in the list of offences if it goes against the basic structure of the
constitution as the sole purpose of such act is generally to incur personal benefit to the
decision makers at the cost of larger public interests.
168
Maneka Gandhi v. UOI 1978 AIR 597
111
For this purpose the definition of Transparency International “Use of public office for
private gain”, can be incorporated for wider connotation of corruption.
Definition of public servant is illustrated u/s 2(c) of the Act which is exhaustive but
does not cover corruption in private sector which is the centre of economic activities
and has major impact on the country’s economy. However, in U.K section 2(1) of The
Bribery Act covers the corrupt acts of “any person” which extends to private sector as
well.
Under the provision of Section 14(f) of the Lokpal and Lokayukt Act, consent of
concerned state government is required for inquiry and prosecution which may curtail
the process of inquiry and prosecution. Section 23(2) of this Act also illustrate about
the mandatory requirement of prior sanction for prosecution, however, Lokpal itself
has power to grant sanction under section 23(1) of which jurisdiction can be extended
up to the state and special protection under section 14(f) can be repealed for an
uninterrupted inquiry and prosecution.
Section 53, of Lok Pal Act 2013 which imposes limitation clause of 7 years from the
time of offence committed and makes the prosecution of corrupt public servant near
impossible; however it is noted that even after closure of the bank account,
transaction of the account is saved in the bank for ten years for the purpose of
tracking the record. When government changes, political equation takes U-turn then
only the high ranking politically patronized officials or ministers come down on their
knees and facilitates right time for prosecution of the offender. But sometimes, it
takes years and putting seven years limitation clause169
for their prosecution drives
away this opportunity from the hands of investigating agencies and also defeats the
very beautiful system of maintaining the checks and balance over monopoly as well
as arbitrary exercise of official power. Similarly, through other various provisions
like Section 14(1)(a) which gives protection to the Prime Minister when he is dealing
with internal/ external security, international relation, public order and, atomic energy
and space, but the section does not specify the extent up to which this protection can
be extended in that particular field. Does it extend up to taking commission in
weapon deals or bipartite treaty with a country at the cost of national interest? Section
14(1)(f) of Lok Pal Act is another example of implied protection granted to the
169
Section 53, The Lok Pal Act 2013
112
corrupt public servant which makes the intentions of the lawmakers very clear. It
seems that they do not want to lose their elitism against the crowd of common man.
If an efficient person remains silent who is capable to influence the course of
corruption, he can be held equally guilty in terms of passive abetment to the offence.
When a subordinate officer is involved in corrupt practices and senior officer
appointed over him is aware about his involvement in such act but does nothing to
prevent it, however in normal course he is capable of influencing the course of action
of the “subordinate”, in such case he can be held equally guilty of abetment defined
under section 10 of PCA, 1988. Maintaining all the above argument illustrated above,
it can be said that the application of element of mens rea is not uniform throughout
the Act. It has different connotation under different sections of PCA, 1988, in some
offence it is applicable and in some offence it is not.
There lies difficulty in finding out who is public servant in cases where the
functioning body is quasi-judicial. Nevertheless, there has been tendency as we have
seen in the preceding section to list out the official who are public servant. Therein
lies the fundamental flaw as to determine who can be deemed to be a public servant if
he is discharging some duties which has colour of official duty or someone inferior
has been delegated some duties which are official duties but then the person holding
the post doesn’t fall in the list enumerated for the public servants. Hence, the idea to
identify someone as public servant should be the duties discharged in addition to the
post being held. As the public servants are duty bound and legally expected to
discharge their duty in good faith, the aberrations in form of corruption should be
dealt heavily and it should not become the question whether the person qualifies as
public servant so as to prosecute further. The emphasis should be on the official duty
discharged rather than the post being held and like in U.K private body/ corporate
whether funded or not funded by the government and private persons are covered in
the Act for the purpose of corruption trial.
Provision of sanction for prosecution of public servants is enacted by the legislature to
provide safeguard to them against vexatious, malafide and false prosecution for the act
done in performance of duties170
. The intention is not to put a wall around the public
servant but to enable them to perform their duties fearlessly. They owe responsibility to
170
Supra note 124
113
the society as they discharge public duty and vexatious, malafied and false prosecution
will harm the smooth functioning of the office and may cause disruption in the
discharge of public duty. Therefore, the provision of sanction is not against the public
interest; however the legal definition of corruption is required to be readdressed.
114
BIBLIOGRAPHY
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115
STATUTES
14. The Prevention of Corruption Act, 1988
15. The Prevention of Corruption Bill, 2013
16. The Code of Criminal Procedure, 1973
17. The Indian Penal Code, 1860
18. The Corrupt Public Servants (Forfeiture of Property) Bill, 1999
19. The Right to Information Act, 2005
20. The Central Vigilance Commission Act, 2003
21. The Lokpal Act, 2013
REPORTS
22. Vohra Committee Report, 9 July 1993
23. 254th
Law Commission of India Report No. 254, 2015
24. World Bank Report, 1997
25. Human Development Index, 2014 avl at hdr.undp.org/en/content/human-
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Aldersopt, Brookfield, vt., USA Avebury,1990
116
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NEWS PAPER
35. G. Reddy, Ramachandra, How effective are our laws to combat corruption?,
The Hindu, 3 Oct.2000, available at
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accessed 03/06/2015
