Sunday, November 29, 2015

Call for Papers - NLSIU Indian Journal of Law & Technology

Call for Papers: NLSIU’s Indian Journal of Law & Technology: Submit by January 31st, 2016

About the Journal:
The Indian Journal of Law and Technology (IJLT) is a student-edited, peer-reviewed, completely open access law journal published annually by the National Law School of India University, Bangalore. The IJLT is the first and only law journal in India devoted exclusively to the study of the interface between law and technology.

The journal carries scholarship in the areas of intellectual property rights, internet governance, information communication technologies, access to medicines, privacy rights, digital freedoms, openness, telecommunications policy, media law, innovation etc. along with focusing on perspectives on contemporary issues involving the intersection of law, technology, industry and policy.
The previous issues of the IJLT have featured scholarly writings by renowned authors such as William Patry, Justice Michael Kirby, Yochai Benkler, Jonathan Zittrain, Donald S. Chisum, Justice S. Muralidhar, Benjamin Edelman, Gavin Sutter, Raymond T. Nimmer, John Frow, Christoph Antons, Lawrence Liang and Shamnad Basheer.

The Journal is also now indexed on research databases such as WestLaw, HeinOnline, the Legal Information Institute of India and Manupatra. Following the policy of open access, all the articles from previous issues are available on our website:

IJLT is now accepting submissions under the following categories:
1.      Articles (5000-12000 words).
2.      Essays (3000-5000 words).
3.      Case Notes, Legislative Comments, Book/Article Reviews (2000-6000 words).
The above limits are exclusive of footnotes. Substantive footnoting is allowed.

1.   All submissions must be accompanied by a cover letter stating the name(s) of the authors, their institution/affiliation, the title of the submission and contact details.
2.      An abstract (not more than 250 words) must be submitted.
3.      Co-authorship (up to a maximum of 3 authors) is permitted.
4.      The body of the paper shall be in Times New Roman, font size 12, 1.5 line spacing. Footnotes should be in Times New Roman, size 10 single line spacing.
5.      Kindly follow Bluebook (19th edition) style of citation.

Format of Submission:
Please send in your submissions in MS/Open Word (*.doc OR *.docx OR *.odt), along with the following information:
  • Full Name of the Author
  • Contact Details of the Author
Deadline: All submissions must be made on or before 11:59 p.m., January 31, 2016. Please send original, unpublished papers to both and
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Friday, November 20, 2015

Special Offences - the Corruption Act and Cognizance

A feature common to many special offences created by statutes in India is the requirement to obtain sanction to prosecute the offender before proceeding to trial. Sanction in context of public servants means permission to prosecute them given by their superiors in office. The prosecution presents them a request for sanction outlining the allegations, and the sanctioning authority applies its mind to grant or deny sanction. Conventionally, this is seen as a step to prevent frivolous cases, and allows the executive to remain the best judge of how to handle issues. For if sanction is refused, no trial would follow. The Prevention of Corruption Act, 1988 contains such a requirement in Section 19.

This post considers the following questions: is sanction to prosecute mandatory to proceed against public servants on corruption charges? Is there a need for fresh sanction in case the allegations take a different colour during trial? If the allegations consist of corruption charges as well as other statutory offences which have independent sanction clauses, would multiple sanctions be needed? What is the effect of not obtaining sanction?

Is sanction really mandatory?
If you wish to proceed under the Prevention of Corruption Act, the answer is yes. Section 19 makes it clear that "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" without there being prior sanction. The absolute nature of this requirement was repeatedly criticised because it allowed for further corruption, in that a department could shield one of its own by refusing sanction. To combat this, the provision was amended in 2014 in light of the Lokpal and Lokayuktas Act, 2013. This subsequent statute allows for a prosecution despite absence of sanction, if it is launched by the Lokpal/Lokayukta Office as the case may be.

Fresh Sanction if charges altered?
Some background to criminal procedure would help understand this better. Today, upon completing the investigation the prosecuting agency [CBI in most corruption cases] files what is conventionally called a chargesheet. This proposes that the accused be charged and tried for the specified offences, or that no offences are made out. The judge after hearing arguments on charge decides whether or not the accused should be charged with any offence and may then proceed to trial. The judge may frame charges for offences other than those proposed by the prosecution.

When we have a need for obtaining sanction before a court can take cognizance, this means that the prosecution must obtain that sanction before filing of the Chargesheet. Otherwise the judge would be barred from taking cognizance of the allegations itself. This sanction would naturally be relating to particular allegations made in the Chargesheet - a permission that a prosecution may be allowed against the specified accused for the specified offences. As the judge can differ from this view of the prosecution and frame different charges to those proposed, would that mean the prosecution would first need fresh sanction for the new offences before the actual charge can be framed?

Logically, the answer should be in the affirmative. The sanctioning authority applies its mind to whatever allegations are placed before it by the prosecution. If new allegations are brought forth, it would only be proper for the authority to re-evaluate its stance as well. I say this also because the contrary position could lead to great indiscretion at the hands of miscreant prosecutors. Cases might be brought under the relatively open ended Section 11 [receiving favour generally] or the attempts clause in Section 15, only for the prosecution to later argue its differently and seek the more meaty charges for offences under Sections 7 and 13. As I write, I am currently looking for decisions on this issue, and comments would be welcome.

Dual/Multiple Sanctions?
An example would help here as well. Consider a situation where a private citizen is accused of bribing the public servant. The prosecution decides to charge them together for conspiring to commit offences under the Corruption Act, and independently charge the public servant. Entering into a conspiracy is a separate offence punishable under Section 120-B the IPC, where to prosecute public servants prior sanction is needed under Section 197, Cr.P.C. Would we need sanction under both, if the public servant was to be tried for entering a conspiracy to indulge in his corrupt activities? 

Here's where it gets interesting. Section 197 Cr.P.C. differs remarkably from Section 19 of the Corruption Act. Section 19 applies without discrimination to each case to take cognizance of offences under the Corruption Act. Sanction under Section 197 is only required if the alleged offence was committed "in the discharge or purported discharge of his official duty" [it would take an entire post to discuss the meaning of this phrase]. The scope of Section 197 is wider in one sense though: it applies to retired officers, which Section 19 does not. Given these differences between the two sanction provisions, it seems plausible to argue that they serve different purposes. The Supreme Court has indicated this view has merit [see e.g., Romesh Lal Jain v. Naginder Singh Rana, (2006) 1 SCC 294].

But go back to Section 3 of the Act and you find Special Judges competent to try any offence under the Act as well as any conspiracy/attempt/abetment relating to the offences.  So would we still need separate sanctions in our fact situation, of trying a conspiracy to commit offences? In Romesh Lal Jain the Court wasn't dealing with a charge of conspiracy, so that decision would not apply here. Conspiracy charges were involved in Neera Yadav v. CBI [Allahabad High Court (Full Bench) Decided on 25.01.2006], where this issue was specifically considered. The Full Bench held no separate sanction under the Cr.P.C. would be needed to prosecute the public servant. What is left unclear then, is whether this view holds good only where 120-B is the only IPC offence, or where there is a composite conspiracy to commit other IPC offences along with those under the Corruption Act. The issue hasn't been specifically considered by the Apex Court, mostly because of an increasingly rigid view of the official duty test under Section 197, Cr.P.C.*

What if there is no sanction?
The answer is not a straight one. It depends on many factors: was there no sanction throughout trial, or just a delay in obtaining it? When was the challenge of sanction raised by the accused? It does appear by looking to Section 19(3) of the Act that the Legislature sought to minimise the influence lack of sanction might have on the trial. Very recently, the Supreme Court considered the result of no sanction in Nanjappa v. State of Karnataka [Crl. Appeal No. 1867/2012 decided on 24.07.2015]. The conclusions arrived at by the two judges indicate that the importance of sanction can be seen from a two-tiered perspective. Tier 1 being the trial before the Special Judge, and Tier 2 being the Appellate/Revisional Court hearings. No sanction before cognizance at Tier 1 means the Court is not one of competent jurisdiction and the trial is bad in law. What's more, this argument can be raised at any time during trial, even final arguments. It is good grounds for discharge as well. At Tier 2 though, the importance is markedly reduced, as seen from the restrictions in Section 19(3).**

Sanction is a crucial issue in corruption cases, and this post tried to raise some interesting issues in the field that are currently being considered by courts across the country. Next time, continuing with Section 19, we specifically look at Section 19(3)(c) of the Act.


* Judges have repeatedly observed that it could never be part of an officers duty to commit offences under the IPC therefore sanction under Section 197 Cr.P.C. would not be needed. This, I think, puts the cart before the horse. By assuming that the officer committed the offence while considering the point of sanction the court unconsciously (or very consciously) precludes itself from ever concluding that the act was in the course of duty. The Court also ignores the use of 'purported' in the provision.

** In Nanjappa, the Trial Court acquitted the accused on merits, despite also observing the lack of sanction. The High Court overturned the decision considering the merits, and on sanction observed that the argument ought to have been raised at the outset. The Apex Court reversed the decision purely on the sanction issue in a Criminal Appeal. This is seemingly in clear violation of 19(3)(a): "no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision ...". The decision therefore impliedly suggests that the Supreme Court is not a Court of Appeal for purposes of Section 19. 

Wednesday, November 18, 2015

Special Offences - The Prevention of Corruption Act (Part I)

Today if one opens the newspaper, corruption seems to rank right up there with bodily offences in terms of crime that newspapers sell to the public. The Central Bureau of Investigation seemingly unearths one new conspiracy every day of public servants robbing the public of tax-payer monies. Debates rage over how effective our laws are to deal with this 'menace'. In all this, very little space is devoted to actually explaining what exactly this apparently inept law is all about. Over the next few posts, I hope to fill that space by (hopefully) providing some basic understanding of the Prevention of Corruption Act, 1988. Readers might find an earlier guest post on the blog discussing the CBI useful while reading these posts.

Who can Investigate/try Offences?
Section 17 restricts the scope of officers competent to investigate offences under the Act without prior permission from a Metropolitan Magistrate/Judicial Magistrate First Class. A Police Officer in Bombay, Calcutta, Madras Ahmedabad and other metropolitan area notified under the Criminal Procedure Code, 1973 [Cr.P.C.] must be the Assistant Commissioner of Police or an officer of higher rank. Elsewhere, that officer must be the Deputy Superintendent of Police or higher rank. In case its the CBI, the investigating officer can be an Inspector of Police or anyone of higher rank.

Similarly, for trial of offences the Act creates a 'Special Judge'; a Sessions Judge/Assistant Sessions Judge/Additional Sessions Judge appointed by the Central Government or State Government by notification [Section 3]. Importantly, though these are Sessions level officers, Section 5 prescribes that the case shall follow procedure for trial of warrant cases by Magistrates. Offences punishable under the Act can only be tried by these judges [Section 4(1)]. However, this does not mean that these judges can only try Corruption Act offences - Section 4(3) enables them to prosecute all other offences with which the accused is charged at the same trial [This was recently in issue before the Supreme Court in Essar Teleholdings Ltd. v. CBI (decided on 29.09.2015)].

Who can be Prosecuted? 
The Prevention of Corruption Act creates offences under Sections 7 to 15 (including inchoate crimes such as attempts). Every offence is not capable of being committed by any person. Certain offences can only be committed by public servants, and others by everybody else. Sections 7, 10, 11, and 13 begin with "whoever, being a public servant", or "a public servant is said to commit the offence". As against this, we have Sections 8, 9 and 12, which begin simply with "whoever". There is no overlap either, as the content of Sections 8, 9, 10 and 12 clearly shows the two sets are mutually exclusive.

There are two things of note here. One, is that the restriction of offences to only public servants can be misleading.This does not mean the act is really narrow in scope. 'Public servant' is defined under Section 2(c) of the Act, and is a very expansive definition as can be seen simply from Section 2(c)(viii): "any person who holds an office by virtue of which he is authorised or required to perform any public duty.". ['Public duty' is again expansively defined under Section 2(b) as "a duty in the discharge of which the State, the public or the community at large has an interest]. So, say a private hospital is found overcharging patients in times of medical emergencies such as swine flu. Could that not lead to corruption charges against concerned officials?

Two, these offences by definition exclude certain people participating in the corruption process from being prosecuted. The corrupt officer giving favours is roped in [Sections 7, 10, 11 and 13], and so is the middle man [Sections 8 and 9]. But the bribe-giver remains untouched by the scheme of offences, and is in fact protected from prosecution upon becoming a witness [Section 24]. These persons can at best be roped in via an additional abetment or conspiracy charge, but cannot be prosecuted directly under the Corruption Act. This creates unnecessary problems for the prosecution as more facts must be proved to secure convictions.*

Second we have corporations, and the issue of organised corruption. The massive fines imposed on Alstom last week show how rampant corporate-sponsored corruption really is. Today, corporations are prosecuted under the Prevention of Corruption Act much like individuals, i.e. by making them co-conspirators. But to establish presence of a guilty mind the corporation would be imputed with the acts/omissions of someone in the company. This makes the prosecution job rather hard, and its not like alternative models of corporate criminal liability don't exist [see, The Corporate Homicide and Manslaughter Act, 2007]. Prosecuting that person for being a person of authority is not possible today because the Corruption Act doesn't have the statutory provisions allowing it. Given the kind of influence corporations have on business and investment, not having a statutory basis to make them accountable seems a pretty big loophole. Conspiracy theorists might suggest that the very fact of statutes not addressing this problem is the product of corruption driven by these corporations. The Prevention of Corruption (Amendment) Bill 2013 considered introducing offences which adequately curb the bribe-givers; both individual and corporate. Their viability was considered by the Law Commission recently in its 254th Report. The Bill has not been passed.

The Trial and Evidence
Before proceeding to trial, there must be a sanction to prosecute as required by Section 19. I won't dwell too much on sanction here, as the issue will be treated exclusively later on. Sanction under this Act is required before taking cognizance of offences. A sanction order is therefore usually filed with the chargesheet. One would assume, therefore, that if the Judge finds that further offences of the Corruption Act are made out in a chargesheet than the ones mentioned, he would have to defer prosecution till requisite sanction is received.

This sanction is mandatory for prosecuting currently serving officers for any offence under this Act: there is no additional test of the act being done in the course of duty etc. Interesting issues of dual sanction arise in context of cases where a person is charged with offences under the IPC as well as the Corruption Act. If the Special Judge can prosecute all offences for which the person accused is jointly charged at the same trial, should not sanction under Section 19 suffice? Or is sanction under Section 197, Cr.P.C. required due to the different legal standards employed by that provision and Section 19? Several decisions of the Supreme Court have dealt with this. We'll look at these later.

At the trial itself, the existence of a reverse-onus clause in Section 20 makes things interesting. It requires the prosecution to establish the fact of accepting/obtaining illegal gratification to trigger a presumption that the same was done with a view to commit offences under Sections 7 or 13, as the case may be. As the section specifically uses the words "proved" when referring to what is required of the prosecution to shift the burden, it can be reasonably assumed that the prosecution must satisfy the court beyond reasonable doubt on its part.

Subsequent Post(s)
The idea behind this introductory post was to serve as a Corruption Act 101, to build on and discuss more technical issues later .The next post will address the issue of sanction, before moving on to the final post in this series on the Prevention of Corruption Act that compares the two principal offences under Section 7 and Section 13.

*{This extension to cover private via abetment charges is partly statutory: Section 12 only prosecutes abetment of offences committed under Sections 7 and 11. Abetting Section 13 offences came through from the Supreme Court's decision in Nallammal [(1999) 6 SCC 559]. The Court held the general IPC provisions on abetment [Section 107-119 IPC] would apply even for offences under Section 13.}