Amendments to the Prevention of Corruption Act: Prosecuting Public Servants

The previous posts on this Blog discussed two new additions brought by the 2018 amendments to the Prevention of Corruption Act, 1988 [PC Act], namely a standalone offence punishing bribe givers, and a foundational change in how corporations can be prosecuted on corruption charges. In this post, I discuss changes made by the amendments that affect the traditional concern of Indian anticorruption legislation: prosecuting corrupt public servants.

The Existing Regime

Before moving on to the changes, it is worthwhile to spend a minute on the existing regime. The PC Act carried two main provisions to combat corruption: Sections 7 and 13. To avoid getting entangled in the technicalities, let's take a simpler version of how they worked, focusing only on the more important parts. There was Section 13(1)(e), which punished public servants caught in possession of assets disproportionate to their income. And then there was the muddling overlap between Sections 7 and 13(1)(d). The former targeted public servants accepting / obtaining anything beyond their salary (cash / property etc.) to do their job. Section 13(1)(d) only targeted them obtaining things, by corrupt means or abusing their position as a public official. The differences, then, were two: (i) according to several court decisions, Section 13(1)(d) needed a demand by public servants, and (ii) Section 13(1)(d) did not need the illegal transaction to revolve around performance of public functions. Totally different from this conundrum was the problem of Section 13(1)(d)(iii), which courts read as not requiring any demand or public function. It was seen as a strict liability offence, whose requirements were met as long as the public servant got any "valuable thing or pecuniary advantage" for another person without any public interest. 

2018 Amendments to Substantive Law: The Text

Very little of that existing regime has been left in place by the 2018 amendments. Section 13(1)(d)(iii) no longer exists. The rest of Section 13(1)(d) has been merged with Section 7 to form one composite offence. The new Section 13 only carries two offences - the erstwhile Sections 13(1)(c) and 13(1)(e). Since the bulk of changes are codified in the new Section 7, let's focus on that:

Section 7. Any public servant who, - 

(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of any public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or 

(b) [ditto], as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or by another public servant; or 

(c) performs or induces another perform to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, 

shall be punishable, with imprisonment ... not less than three years but which may extend to seven years ... 

Explanation 1. - ... obtaining, accepting, or attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

...

Explanation 2. - ... (i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a [public servant], obtains or accepts or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant, or by using his personal influence over another public servant; or by any other corrupt or illegal means; ... 

I spoke earlier of overlaps between Sections 7 and 13(1)(d) in the PC Act. The legislature has chosen to resolve that issue by deleting half of Section 13(1)(d), and clubbing those parts with the scope of Section 7. This has been done through Explanation 2 to Section 7, which carries forward large chunks of the old Section 13(1)(d) PC Act. What, then, is the conduct prohibited by Section 7 after the amendments? It punishes three kinds of transactions between public servants and others involving an "undue advantage" changing hands / about to change hands:

• Section 7(a) requires that the exchange be accompanied by the public servant intending to perform / cause performance /forbear performance of a public duty either improperly or dishonestly, be it her duty or that of another public servant;      
• Section 7(b) requires that the exchange to be as reward for improper or dishonest performance / forbear performance of a public duty in the past by a public servant;
• Section 7(c) requires the improper or dishonest performance / forbearance of public duty, or inducing such conduct in another public servant, in anticipation or in consequence of accepting an undue advantage.

Substantive Amendments: Hits and Misses

The deletion of Section 13(1)(d)(iii) from the PC Act marks the end of a long saga of a fight between the bureaucracy and the government. Ever since 2010, when the Delhi High Court ruled that the offence did not require proof of any associated mental state, it became possible to prosecute public servants simply for making a bad decision. For instance, if an official in a Public Sector Bank grants a loan to X, who then defaults, technically the public servant obtained a valuable thing or pecuniary advantage for another person without any public interest. Although the Delhi High Court's decision incorporated safeguards against such a broad reading, the bureaucrats were not convinced, and had been lobbying for change. The 2018 amendments mark their victory.

Creating a broad corruption offence and reducing overlaps and resulting confusion between Sections 7 and 13(1)(d) is a good idea. But unfortunately, it suffers from poor execution, as the new Section 7 is still plagued by unnecessarily confusing text, as I illustrate below. 

• First, the confusion with 7(c). It targets two kinds of scenarios: (i) a public servant does her job dishonestly / improperly expecting to get an undue advantage for doing so, (ii) a public servant does her job dishonestly / improperly having accepted an undue advantage for doing so. Scenario (i) can easily be described as the public servant being rewarded for doing her job dishonestly / improperly - which is exactly what Section 7(b) targets. Scenario (ii) can be seen as a public servant intentionally accepting an undue advantage to do her job dishonestly / improperly - which is part of what Section 7(a) covers. Thus, arguably Section 7(c) is not really covering any extra ground. 
• Second, consider Explanation 1, which effectively says that the Section 7 offence is complete as long as a public servant gets an undue advantage, without a need for improper performance of duty. But we already knew this, since Section 7 uses the words improperly or dishonestly to describe the conduct of public servants. Why add an unnecessary explanation? 
• Lastly, consider Explanation 2(i), which makes explicit the links between the new Section 7 and the old Section 13(1)(d). Perhaps this is useful to make it clear to the police and courts that this offence also deals with what the old Section 13(1)(d) covered. But, this is simply not the case. Even though some language is carried forward, the old Section 13(1)(d) does not survive. I say this, because all that the old offence required was a public servant obtaining an undue advantage without any need to draw links between this transaction and the performance of a public duty. Basically, it criminalised a public servant extorting persons into giving bribes. But all three clauses in Section 7 hinge around the performance of a public duty, besides exchange of an undue advantage. Ultimately, Explanation 2(i) is unnecessary: since the means by which a public servant obtains the undue advantage are irrelevant for the offence, why talk about it?      

2018 Amendments to Procedural Law  

Section 19 of the PC Act creates a need for prior sanction to prosecute public servants on corruption charges; i.e., prior government approval before judicial proceedings can begin. This provision has a cousin in the general law on criminal procedure - Section 197 of the Criminal Procedure Code 1973 [Cr.P.C.]. There used to be two points of difference between these provisions. First, Section 19 PC Act only applied to active public servants, while Section 197 Cr.P.C. covered both active and retired public servants. Second, Section 19 PC Act applied in almost all cases under that law, while Section 197 Cr.P.C. applied to all kinds of cases, but only if the allegations concerned acts / omissions of the public servant in discharge / purported discharge of official duties [for a discussion of the judicial treatment of this test, see here]. The 2018 amendments to Section 19 PC Act have eliminated the first distinction; now sanction to prosecute cases under the PC Act will also apply to public servants employed "at the time of commission of the alleged offence". Section 19 PC Act will now also carry different rules on sanction in cases that are not instituted by law enforcement, giving public servants more opportunities to stop proceedings at the outset. While the amendments codify Supreme Court directions for a 3 month time-limit on sanction, there is no rule that failure to comply with that limit will result in sanction being deemed to have been granted.      

Far more significant than this expansion, though, is the insertion of Section 17-A into the PC Act. This provides that investigations regarding "any recommendation made or decision taken by [a] public servant in discharge of his official functions or duties" also need prior government sanction. Thus, police cannot even start corruption investigations without prior approval, a process that can take up to three months, although there is an exception for cases where a public servant is caught red-handed while obtaining / accepting an undue advantage [Provisos to Section 17-A]. Note, though, that while Section 17-A applies to PC Act offences, its structure is akin to Section 197 Cr.P.C. - prior sanction is needed only if allegations concern any recommendation / decision in discharge of official functions or duties. 

Section 17-A And Sanction: Old Wine in New Bottles

While prior sanction for investigations are not as common as prior sanction for prosecution, there is a legacy of laws protecting public servants against investigations too. The most famous being Section 6-A of the Delhi Special Police Establishment Act, 1946 [DSPE], which only shielded senior bureaucrats in cases pursued by the CBI, and was struck down as unconstitutional in 2014 primarily because of this selectivity in scope. In the years since, there have been selective attempts to revive that protection, most recently in the State of Rajasthan. Section 17-A marks a re-introduction of such protections at the federal level, this time without any rank-based logic. Though one suspects that it will be more common for this protections to be claimed in allegations against senior bureaucrats who occupy decision-making roles.

Are such protections for public servants legal? The Supreme Court considered the constitutionality of Section 197 Cr.P.C. in 1956, when one Matajog Dobey argued that this violated the equal protection clause of Article 14. Why, Dobey argued, should public servants not be taken to court like the rest of us? The Court disagreed, finding merit in the colonial logic that public servants needed this rule to protect them against vexatious litigation. As I mentioned above, the Supreme Court took up the issue of requiring prior sanctions for investigations in 2014 when it considered the legality of Section 6-A of the DSPE Act. But it did not rule that such protections from investigations were bad per se, and instead chose to tackle the arbitrariness of only protecting certain kinds of public servants and not the entire set. That is where the law stands today: public servants are certainly in a different class, but the extent of their privileges remains unsettled.

While discussing amendments passed by the State of Rajasthan in 2017 here, which introduced very similar rules for that state, I suggested that this temerity of the Supreme Court might render it difficult for any court to now turn around and say that requiring prior sanction for investigation, when applied to all public servants, is unconstitutional. In that post, I also described how, rather than condemn the idea of sanction outright, the judiciary used the "official duties" language in Section 197 Cr.P.C. to regulate what kinds of conduct could require prior sanction (An entire monograph can be dedicated to the unprincipled way in which it has done this). Since 1997, when the judiciary went beyond mere regulation to hold an earlier avatar of Section 6-A of the DSPE was unconstitutional, there has been a constant tussle between judiciary and executive. Courts would nullify protections from investigations, only for governments to reinstate it in new ways. Section 17-A appears to be the central government's response to the judicial nullification of Section 6-A of the DSPE Act. I suspect that the cyclical trend will send the ball back to the judiciary, as the legality of Section 17-A will certainly be challenged before the Supreme Court. Once and for all, the Court can then set the record straight and tell us what it thinks about laws shielding public servants from investigations, putting them truly in a class of their own above the rest of us plebeians.  

Conclusions and Next Post

As this post discussed, not only do the 2018 amendments to the PC Act introduce brand new areas to the law, they also make substantial changes to the core concern of Indian anticorruption legislation: the prosecution of corrupt public servants. By streamlining the substantive offences, the amendments have taken a step in the right direction. Sadly, these progressive steps suffer from familiar flaws in terms of poor legal drafting. But equally important, if not more, are the changes brought about to the law on requiring prior sanctions to prosecute public servants for corruption. Not only have existing shields against prosecutions been fortified, but an entirely new protection against investigations has been introduced. This provision cements just how big a shift has been made from the old regime: not only did is Section 13(1)(d)(iii) deleted from the PC Act, but conduct which was earlier a basis for prosecution is now the subject of additional protections through the amendments. Perhaps because of this, it is difficult to avoid a sense that the PC Act will now carry lesser bite while going after public servants. In the next and final post of this series, I will look at the addition of a forfeiture regime to the PC Act, an area where more bite has seemingly been added to the law. 

The IPC and Conspiracy II: A Problem of Excess

Criminal conspiracy was something I briefly introduced on this Blog recently. There were several threads to develop, and in this rather philosophically-titled post I want to bring out an old skeleton/argument from the conspiracy closet: the offence of conspiracy must be restricted to situations where the conspiracy remains unfulfilled. When the conspiracy results in realisation of the intended/known consequences i.e. an offence, there remains no reason to separately punish the conspiracy to commit that crime. 

The Prosecutor's Darling

Conspiracy is an inchoate offence, which means that it covers incomplete acts and makes them criminal due to particular harms they present. The particular harm has been elaborated upon by courts, which have noted that there is something very dangerous about people sitting together and thinking of plans to go against the state and its laws, meriting this behaviour be deterred through penalisation [Pinkerton v United States, 328 U.S. 640 (1946)]. Now, if we agree that a conspiracy offence intends to cover the inchoate liability of people agreeing to commit offences, why do prosecutors insist upon levying conspiracy charges in cases where persons do manage to commit offences pursuant to the conspiracy? 

I argue that there are two main reasons for this, at least. The first, is the procedural benefit conferred by a conspiracy charge: a golden-lasso like quality that allows the prosecutor to rope in disparate offences and offenders in a single trial where normally they would have to be tried separately. Section 218(1) of the Criminal Procedure Code 1973 creates the rule that there must be separate charges for every distinct offence, and each charge shall be tried separately. Section 220(1) creates the exception, providing that more offences than one may be tried together if they form part of the same transaction. A conspiracy is perhaps the easiest way to create one transaction out of a variety of offences committed across space and time. While there is not much writing on this in India, there has been some commentary in England over time on this rolled-up charge of conspiracy [See references in David Ormerod 'Making Sense of Mens Rea in Statutory Conspiracies' 59(1) Current Legal Problems 185 (2006)].

The second benefit is the evidentiary relaxation provided in cases of conspiracy. In a case where Z is being tried for having committed a robbery, a statement by X that she heard Y tell her that Z was going to commit a robbery, has no value. Whatever X says is hearsay, a short term for basically saying that there is a sensory gap between X and the actual event that X is talking about - Z committing a robbery. Now flip the coin and take a case where X, Y and Z are stated to be conspirators, who committed a robbery. Suddenly, the same statement has great value. It is specifically made relevant under Section 10 of the Indian Evidence Act 1872. Having a conspiracy charge potentially allows the prosecutor to rely upon previously inadmissible evidence, naturally making it appealing. 

The Problem of Excess

The prosecutor's darling is getting overworked, sadly. Conspiracy charges are being employed ever more routinely without there being a great deal of thought, leading to unsustainable cases and easy defences. This led to courts recognising that there can be multiple conspiracies as opposed to one broad conspiracy, which would then require separate trials nonetheless. The net, thus, cannot be strung too far and wide either it would seem. Today though, there are new problems emerging particularly in the context of statutory offences, which do not require any mental element for commission of offences. Traditionally, one may recall, a crime must have an act/omission, and an accompanying mental element that makes this act/omission criminal. If I took your pen knowing its yours, its very different from me taking it absentmindedly thinking that it is mine. But as know, several offences today do not require any mental element to make conduct criminal. The circumstances and consequences hold the key. Today, for instance, Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988, simply proscribes the obtaining for any person any valuable thing or pecuniary advantage without any public interest. The Delhi High Court interpreted this clause as not requiring a mens rea requirement. There is no need for you to intentionally or knowingly have obtained that valuable thing or advantage without public interest. Your conduct is criminal as long as the circumstance - of it being without any public interest - is established.

Now, can there be a conspiracy to commit such offences which the prosecution alleges occurred without any intention or knowledge on part of the offender, but only because the circumstances were found to exist? For example, consider the case against Dr. Manmohan Singh in the coal-allocation scam. The prosecution may allege that he intentionally acted/omitted to act in a manner to obtain for other persons a pecuniary advantage without any public interest. But it is also an offence, if it can be shown that other persons benefited from the acts/omissions of Dr. Singh and this was without public interest, regardless of whether or not these acts/omissions were known/intended. Can there be a conspiracy charge in the latter? A conspiracy is premised on parties agreeing on a course of conduct with the intention or knowledge that this conduct upon completion would or would result in the commission of an offence. It would, therefore, be rather absurd to charge a person for a conspiracy where the entire case is based on the non-existence of a mental element to commit crime. The English House of Lords in R v Saik [2006 UKHL 18] and the U.K. Law Commission have considered this problem of conspiring to commit statutory offences in some detail. We remain without any comparative assessment of the problem in India.

Alternatives

These problems remain a symptom of a deeper malaise: an insistence to employ conspiracy charges where they are not meant to be. As mentioned at the outset, conspiracy is an inchoate crime. The rationale behind criminalising conspiracies is particularly attuned to its inchoate nature. If offences are eventually committed, the fact of persons having conspired to commit them remains more suited to consideration as yet another fact to appreciate the gravity of that conduct and punish appropriately, rather than insist on treating the initial agreement separately as conduct amounting to an offence.

Are there alternatives? Well, yes. It is not necessary for a prosecutor to employ conspiracy charges to round up various offences and offenders. If the allegation is that an offence is committed pursuant to the same, then there is the route of abetment by conspiracy, under Section 107 IPC. It recognises the notion that conspiracy is only facilitating the commission of other offences. If there is involvement in the commission of the offences itself - say X, Y and Z were robbing the bank together - then there is the route of group liability under Section 34 of the IPC. The procedural advantages would be retained to cover various associate offences (suppose, forging keycards to gain entry to the bank) committed in furtherance of the main offence. The fact remains though, that today employing conspiracy charges is deeply embedded in the fabric of prosecutions that this question is considered mostly academic to only be shoved under the carpet. Until these problems are faced in some high-profile cases or repeatedly seen in a particular set of offences (as happened in England for conspiracy in money laundering offences), we are unlikely to receive the thorough re-appraisal of conspiracy law that is needed today.