Amendments to the Prevention of Corruption Act: Punishing Bribe Givers

In what might just be the biggest statutory shake-up since the Prevention of Corruption Act, 1988 [PC Act] came on the statute books, the Prevention of Corruption (Amendment) Bill 2018 was passed by the Rajya Sabha on July 19, and the Lok Sabha on July 24. That means it will become law unless the extremely  rare event of a President withholding assent occurs. News reports have posted bulletins, and some are ready with explainers as well, but there is naturally a lot that is left out by the media. In this multiple-part series, I take stock of what is likely to become the new regime for the regulation and prosecution of corruption offences in India. In this post, I take up the new Section 8 that punishes private persons for giving bribes.  

Punishing Bribe Givers: The Text

Many people subscribed to popular news outlets would have seen messages carrying the update about the amendments with punishment of bribe givers being the headline. There is good reason for this excitement: the existing mechanism under the PC Act did not create an offence of "bribe giving", and such conduct could only be indirectly punished. This was done through Section 12 of the PC Act, by alleging the private person aided or abetted the misconduct by the public servant. The only other kind of bribe giving punishable was under Section 8 which targeted the middleman acting as the conduit between the private person seeking the benefit, and the public servant amenable to corruption.

Not anymore. The recent amendments to the PC Act change Section 8, which will look like this:

Section 8: 

(1) Any person who gives or promises to give an undue advantage to another person or persons with intention - 

(i) to induce a public servant to perform improperly a public duty; or 

(ii) to reward such public servant for the improper performance of public duty; 

shall be punishable for a term which may extend to seven years ...

Provided that ... this section shall not apply where a person is compelled to give such undue advantage ... [and] shall report the matter to [law enforcement] within seven days from the date of giving such undue advantage. 

...

(2) Nothing in sub-section (1) shall apply to a person, if that person, after informing a law enforcement authority or investigating agency, gives or promises to give any undue advantage to another person ... to assist [law enforcement] in its investigation against the latter.

Section 8 also has an Explanation that says: (i) it doesn't matter if the bribe is given / promised to the person who is to perform / has performed the corrupt acts, and (ii) it doesn't matter if X gives / promises the bribes directly or through a third party. 

Understanding the Bribe Giving Offence

Let's break Section 8 up to see the conduct it seeks to prohibit, and the mental state it requires to be linked to that conduct for it to be labelled criminal. Section 8 punishes giving / promising to give an "undue advantage" to induce / reward a public servant to "perform improperly a public duty". Putting it crudely, Section 8 covers the giving / promising of bribes as inducement / rewards for corrupt acts by public servants. The giving / promising need not be done directly, as explained by the provision. It must be made to another person, and while this can certainly be the targeted public servant, it can be any other person as well.    

This conduct must be performed intentionally for it to be punished under Section 8. It means nothing short of the clearest case ought to go through, since intention is the highest standard for mental state in criminal law. One imagines the prosecution will need to show (i) a clear offer / promise / giving of a bribe, (ii) a link between X (private person) and Z (corrupt public servant), and (iii) some evidence of the particular corrupt act that X wants from Z / Z has committed. This is what the Illustration to Section 8 also suggests (not reproduced above): it says P (private person) is guilty of the offence where she gives S (public servant) a sum of Rs.10,000 to ensure P is granted a license over all other bidders. Note, though, that the text itself does not require that S must get whatever is given by P to "another person" for getting S to ensure the license is approved.

As important as the offence itself is the Proviso to Section 8(1) that carves out an important exception to protect persons who are "compelled" to give bribes. This is an acknowledgment of existing social realities where public servants exploit their position to demand undue favours for performing their duties. To trigger the benefit of the Proviso, the victim must go and file a report with the concerned authorities within a week. Another important exception to Section 8 is codified in the second Proviso, which protects the long-standing use of "entrapment" (called trap cases in the field) as a technique to nab corrupt public servants. So, persons who conduct a sting operation to assist investigations cannot be prosecuted either.   

Potential Problems
Few would argue that bribe giving should not be punished. But, it is worthwhile to ask ourselves how will the police catch bribe givers? Bribery is a covert transaction: I am not going to tell everyone that I bribed a public servant, which means either (a) the public servant goes to the police, or (b) other aggrieved persons go file complaints. Let's take both scenarios. If the idea is for public servants to report bribes, they also need protection from prosecution. But while there is an exception to protect a cooperating bribe giver, there is no exception for cooperating bribe takers in the new law.

Perhaps the legislature thought - as many others might - that public servants are going to be an unlikely source of information and there is no need for an outright exception. The most likely source of initiating legal action is then the persons who suffer from corruption. Go back to the illustration, when P is awarded a license by S who was bribed. Many other bidders will be aggrieved on losing out, and it could be assumed that someone asks the police to investigate. There is an obvious problem but: in what is labelled a corrupt system, some aggrieved bidders will always smell foul play when they lose out, possibly giving rise to as many false cases as genuine ones. It is then incumbent on police to make sure that false cases are not carried through - not the kind of reassurance one wants in India where police distrust runs high.       

The problems continue when we consider the benevolent protection for oppressed bribe givers. Let's begin with the seven day reporting limit: What if police arrests a person for giving bribes before she files a complaint? Will it mean that no arrests for Section 8(1) offences can happen within seven days to avoid this scenario? Or will it mean, perhaps, that police will now find it easy to compel persons to cooperate in making cases against public servants by turning bribe givers into cooperators? Then there is the reporting itself. While the proviso calls for reporting the incident, it says nothing about what happens thereafter. How will police decide whom to believe in a potential swearing match between two purported victims - the allegedly oppressed bribe giver or the vexatiously prosecuted public servant? Will the alleged victims be required to make a statement on oath before a Magistrate, or file an affidavit?

And, finally, how to interpret "compelled", to identify when a person was compelled to pay bribes? There is no explanation in the proposed amendments, which means we must look elsewhere. The most famous interpretation of compulsion in India came from the Supreme Court in context of Article 20(3) of the Constitution, which says that "no person accused of an offence shall be compelled to be a witness against himself". There, in Kathi Kalu Oghad [1962 SCR (3) 10] a bench of Eleven Justices held compulsion meant physical duress: i.e., you needed objective physical acts to prove that you were forced to testify against your will. I imagine that this will not be the standard applied in context of the PC Act. But how broad a meaning of "compelled" will be appropriate, and what consequences might it have on the earlier interpretation arrived at in the context of Article 20(3) itself?

Conclusion and Next Post
The amended Section 8 of the PC Act creates a new offence that potentially opens a veritable flood of prosecutions in a country seemingly plagued by corruption.  The offence itself has been designed in a way to make prosecutions tougher though, as it requires proof that a person gave / promised an undue advantage intending it to be an inducement / reward for corrupt acts. The offence also carries a much-needed exception to protect against the unfair prosecution of persons who are victims of corruption. All of this will translate into several issues when the law comes into force, some of which I identified and discussed above. The few questions I raised confirm the beliefs that the new Section 8 is bound to be the site of significant litigation in the months and years to come. Another reason for that is the last proviso to Section 8(1), that was not reproduced in this post. This is not in the nature of an exception, but provides that commercial bodies can also be prosecuted for giving bribes, and will be the subject of the next post which will also take us to the amended Section 9.

(this post was updated on July 26, 2018, at 9:20 AM)

Special Offences: The Supreme Court on Section 7 and 13(1)(d) of the Corruption Act

[This is the fourth post in continuation of a stop-start series  discussing issues arising from the Prevention of Corruption Act, 1988. For earlier posts, see here,  here and here]

Although an instance of malum prohibitum (acts made criminal by virtue of statute but not otherwise offences), many argue that corruption jars the moral fabric of democratic society as harshly as any act that is mala in se (murder, for instance). The criminal justice system in India seems to support this view. The space and attention devoted to public discussions of corruption allegations are a testament to it. In this discussion, the pre-eminent position has often been accorded to the Supreme Court. Circumstances have made it don the mantle of a full-service corruption dousing machine. It oversees investigations, sets up special trials, and then eventually decides cases in appeal. 

Habitual readers of this Blog (if any) would be aware that it is rather skeptical of the efficacy and accuracy with which the Supreme Court dispenses its judicial functions in this era of its heightened importance. This post on the Court's interpretation of the primary offences under Sections 7 and 13(1(d) of the Prevention of Corruption Act, 1988 [PC Act] is of a similar vein. I argue that recent decisions of the Court have conflated the two already-similar offences while ignoring their text. The Court's interpretation casts unnecessary doubts over the position of law and is thus undesirable from the perspectives of both prosecution and defence.

The Offences - Section 7 and 13

The PC Act was designed as an upgrade on its 1947 namesake by combining elements from the predecessor with a scheme of bribery-related offences previously contained in the Indian Penal Code.  Identical provisions can thus be found for most of the PC Act in these historical sources. Section 7 of the PC Act is strikingly similar to the now-repealed Section 161 of the IPC. Similarly, Section 13 is modelled on Section 5 of the 1947 Act. Section 13(1)(d) nearly identical to Section 5(1)(d).

The headnote for Section 7 reads "Public servant taking gratification other than legal remuneration in respect of an official act". The headnote for Section 13 - it criminalises various types of conduct - reads "Criminal misconduct by public servant". The scope for overlap is apparent, as taking illegal gratification falls within the larger, general, field of misconduct. The text of the provisions, Sections 7 and 13(1)(d) parts (i) and (ii) that is, make the possibility of overlaps a clear probability:

Section 13(1)(d): [A public servant is said to commit the offence of criminal misconduct] if he: (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; ...

Section 7: Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever,  other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, ... shall be punishable with imprisonment ... 

Imagine the two offences as concentric circles. The Section 7 offence can be very nearly subsumed within the broader offence created by Section 13(1)(d). Nearly and not completely subsumed, for there is one crucial difference in the preliminary conduct requirements of the two offences. Section 7 criminalises accepting or obtaining illegal gratification in a particular manner. Section 13(1)(d) only speaks of obtaining. Beyond this, the particular manner in which the illegal gratification is accepted under Section 7 can easily be classified as corrupt means and fall under Section 13(1)(d)(i).

Accepting, Obtaining, and the Supreme Court

Is there a difference between accepting and obtaining in the context so described? This question has arisen before the Supreme Court in context of the PC Act as well as the old 1947 Act and IPC regime. In Ram Kishan & Anr. v. State of Delhi [AIR 1956 SC 476] the Court while reading Section 5(1)(d) of the 1947 Act held that 'obtain' "does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver." Such sophistry was shed for clearer dictum by the Court in C.K. Damodaran Nair v. Government of India [(1997) 9 SCC 477], again a decision under the old regime. Implicitly building on Ram Kishan, the Court held that acceptance need not involve an element of demand, but obtaining necessarily involved demand on part of the public servant. Thus, demand was necessary for an offence under Section 5(1)(d) - now 13(1)(d) - whereas it was not necessary for an offence under Section 161 IPC and correspondingly an offence under Section 7 of the PC Act. This reading of the text was upheld in the context of the PC Act by the Supreme Court in A. Subair v. State of Kerala [(2009) 6 SCC 587].

Soon after, though, things begin to get interesting. After Subair, a spate of decisions emerged which hold that demand is the sine qua non for an offence under Section 7, and none of these cited C.K. Damodaran Nair. The list includes C.M. Girish Babu v. CBI [(2009) 3 SCC 779], C.M. Sharma v. State of A.P. [(2010) 15 SCC 1], and B. Jayaraj v. State of Andhra Pradesh [(2014) 13 SCC 55]. Importantly, in all these cases the Appellants were alleged to have committed offences under Section 7 as well as Section 13(1)(d) based on the same underlying transaction. The cases were also factually similar - a trap was sprung to catch the public servant red-handed while taking illegal gratification, with the Accused arguing that the gratification must have been demanded for it to be an offence. Reading these decisions together with the view in Ram Kishan and C.K. Damodaran Nair makes it clear that the Court is wrong to hold that demand is a sine qua non for offences under Section 7. It is certainly necessary, though, for an offence under Section 13(1)(d). [As an aside, it is interesting that the charges against the Accused were under Section 13(1)(d)(ii) in two cases and 13(1)(d)(i) in one.] 

All these cases were decided by co-ordinate benches of two judges. A bench of three judges decided P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh [(2015) 10 SCC 152], yet another trap case involving allegations under Sections 7 and 13(1)(d)(i) & (ii). The three judges cited previous decisions noted above to conclusively opine that "the proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail." Very recently in April 2016, the Supreme Court in V. Sejappa v. The State by Police Inspector, Lokayukta [Crl. Appeal No. 747/2008, decided on 12.04.2016] used an opportunity to present these decisions - excluding Subiar - as an impenetrable facade for the proposition that demand is the sine qua non for an offence under Section 7. Notably, this case also concerned allegations under both Sections 7 and 13(1)(d).

Cutting through the Rhetoric

I've been at pains to highlight the factual likeness of all the decisions mentioned above. A failure to adequately do so by the Supreme Court in these decisions is what today risks incorrectly conflating both offences. The Supreme Court, most notably in the three-judge bench decision of Satyanarayana Murthy, egregiously speaks in highly-general terms of demand being a necessary element for offences under Section 7 despite this being clearly unsupported by the text of that provision. In fact, the basic difference between the scope of offences under Section 7 and Section 13(1)(d) is the former possibly covers situations where there is no demand. 

Restricting the effect of these cases by considering their facts allows us to limit the extent of damage. Although facts are pithily discussed in the reported decisions, it is clear that the prosecution hinged its case every time on the existence of a demand and acceptance of a bribe for securing a conviction under both offences. By levelling both sets of allegations, the prosecution necessarily only argues that the Accused obtains the gratification - as Section 13(1)(d) excludes mere acceptance. Once the prosecution argues that the Accused obtains a bribe for purposes of Section 13(1)(d) it cannot also argue, on the same set of facts, that the Accused merely accepted the bribe to secure a conviction under Section 7. In this very limited context of trap cases where allegations are levelled under both Sections 7 and 13(1)(d) one can support the logic of the Supreme Court, though nothing can support the unnecessarily grandiose rhetoric.   

Conclusion

Why then, one might ask, are prosecutors insistent on levelling allegations under both sets of offences  in corruption cases despite the onerous requirements of Section 13(1)(d) - establishing both demand and acceptance? Or well, if you persist in levelling allegations for Section 13(1)(d) why must Section 7 also be added? There are reasons, of course. Prosecutors insist on Section 13(1)(d) because it carries a higher sentence - ten years, as against the seven years of Section 7. They continue on adding Section 7, however, because of evidentiary benefits that it entails at the trial. Section 20 of the PC Act contains a reverse-onus clause that applies in trials for Section 7 offences but not 13(1)(d). 

This framework is not likely to be amended anytime soon. Thus, the jurisprudence on corruption laws in India is bound to see several more cases involving laying of a trap to catch offenders red-handed, with prosecutors then levelling charges under both Sections 7 and 13(1)(d). But there will also be several more cases not involving these scenarios, with only allegations of an offence under Section 7. It is imperative that the Court appreciate the distinctions, rendered ever-so thin by its rhetoric. If not, Section 7 would then collapse completely within Section 13(1)(d) and be rendered redundant. 

Of Entrapment and Agent Provocateurs - Part II

In the previous post, we discussed India's treatment of an Agent Provocateur: "one who entices another to commit an express breach of law which he would not have otherwise committed and then proceeds or informs against him in respect of such offence". Here, I consider the position of the person tempted, enticed and induced into committing the offence. Few would refuse to admit that a person who ordinarily harboured an intention to commit an offence, is placed differently from one who is egged on to commit the offence. The devil, as they say, lies in the detail. It is here that the fact of public versus private agents can matter: for some, the situation be more opprobrium-worthy if the Police were behind such manufacturing of crime, as opposed to some journalist. As we will see, it is a detail which matters.

The Tempted

Two broad questions are raised in respect of our Eve, (i) how does the law treat the fact of Entrapment when considering guilt or innocence, and (ii) how should the law treat this fact. [Caveat: unlike most posts, this does not solely consider the Indian position, for there is a near-absolute dearth of discussion on the point. English and American experiences are drawn from, and those interested in reading further may also consider Canada's treatment of the point.]

Entrapment: How it is Today 

In India, Chapter IV of the IPC contains 'General Defences'. Entrapment is not one of them, nor is it recognised as a defence in any special statutes on criminal law. The situation is England is similar, where no Entrapment defence is recognised statutorily, or at the common law. Both countries do, however, have procedural laws that prevent any abuse of process [Section 482, Cr.P.C. 1973; Section 78, Police and Criminal Evidence (PACE) Act 1984]. While we haven't yet courts label such police action as an abuse of process in India, we did see in the previous post that such police practices are deprecated. In England a stay of proceedings has been granted on grounds of Entrapment by the police in R v. Loosely [2001 UKHL 53].

The USA though, does recognise a defence of entrapment where Law Enforcement agents act as Agent Provocateurs, but not private entrapment. The Supreme Court of the United States [SCOTUS] in Casey v. United States [276 U.S. 413 (1928)] declined to discuss the point, but it placed itself squarely for consideration in Sorrells v. United States [287 U.S. 435 (1932)]. The Court unanimously affirmed the defence, but schisms appeared concerning its understanding. The Court [in an opinion by Hughes J.] believed the Defendant's 'predisposition' to commit the offence was relevant to determine if any entrapment occurred. Merely affording an opportunity for committing the offence is insufficient; the seeds must be planted by the Police. In a separate opinion, Roberts J. believed the focus ought not to be on this predisposition, but rather on the role played by the Police allowing for a more objective analysis. Jacobson v. United States [503 U.S. 542 (1992)] was the first time since Sorrells that the Court did not raise the debate [previously raised in Sherman v. United States, 356 U.S. 369 (1958); United States v. Russell, 411 U.S. 423 (1973)], suggesting the point has become moot.  

Entrapment: How should it be?

This question has varied treatment across jurisdictions: while the USA has debates over the nature and scope of the existing defence, the UK can yet consider a wider set of ideas given the current absence of any defence. 

Not everyone has been satisfied with the rather subjective nature of enquiries in the USA: the line of thought fronted by Roberts J. has found some academic support. The bigger debate today though is on 'Private Entrapment': operations by journalists and other private persons to expose truths [see, Gideon Yaffe "'The Government Beguiled Me': The Entrapment Defense and the Problem of Private Entrapment", 1(1) Journal of Ethics & Social Philosophy (2005); Richard McAdams "The Political Economy of Entrapment" 96(1) Journal of Criminal Law & Criminology 107 (2005)]. State participation in the operation has been central in SCOTUS applying the defence, although one may argue that the subjective test in fact allows an extension to private operations as well by focusing on the tempted and not the tempter. 

Since Loosely (2001), the UK can be seen as recognising some protection in cases of entrapment. Writing prior to this remains important to consider what other approaches may be followed through Section 78 of PACE which allows a variety of remedies through the 'abuse of process clause' [see, Andrew Choo "A Defence of Entrapment", 53(4) Modern Law Review 453 (1990)]. The focus in Section 78 is on the conduct of the police or prosecuting authority, which makes its extension to Private Entrapment difficult. Thus, while the private nature of entrapment did not prevent a stay in R v. Hardwicke [(2001) Crim L.R. 220], it became the reason to refuse reliefs under Section 78 in R v. Shannon [(2001) 1 WLR 51].

India and Entrapment

Since India has a clean slate to work on, the law potentially can develop in several directions. We already have one protection to persons who have been entrapped: evidence of the Agent Provocateur must be corroborated for it to be relied upon. What about an Entrapment defence? Traditional defences are premised upon either excusing certain acts from liability [say, insanity], or justifying acts to not impose any liability on the actor [say, self-defence]. Entrapment, as academics note, cannot be placed in either bracket without problems. What's more, I think that a defence in the conventional form would fail to adequately address the problem society faces when dealing with entrapment. In case of the Police entrapping individuals, it is an abuse of process. The law is supposed to preventing crime, not manufacturing it [see, Rumpole and the Alternative Society (1978)]. 

Private Entrapment is again an abuse of process but for different reasons. It questions the basic notions of privacy we are accustomed to in a liberal society, and constitutional encouragement by Indian courts is a cause for concern no matter what the case may be. Persisting with such encouragement of lies and deception only fosters easy reliance on these means, as opposed to conducting a thorough inquiry. Thankfully, the Supreme Court in Rajat Prasad [see previous post] recognised this and asks for a completely remote person to conduct the operation. The fear of attendant liability should deter those with an ax to grind, but only time will tell how effective it is.

I would like to acknowledge Ms. Deekshitha Ganesan [IV Year, B.A.LL.B. (Hons.)] for her help with these posts.

Of Entrapment and Agent Provocateurs - Part I

Few things capture the public's imagination like a Sting Operation. X goes undercover and acquires the target's confidence, after which the target is induced to commit illegal acts or confess to the occurrence of alleged improprieties. If X is a police officer, then an arrest usually follows. If X is a journalist, then the footage is broadcast through news items labelled The Truth [about so and so]. A fiery debate rages on TV about the veracity of these claims and the propriety of such inducements. The society's moral dilemmas in accepting such sting operations is reflected in the criminal law as well, where for several years jurisdictions have debated how Eve and the Snake should be treated for biting the forbidden fruit [a reference used by the House of Lords in R v. Sang, [1980] AC 402]. The Indian experience is discussed here

The Snake

Our temptress, the Biblical Snake, is evocatively labelled an Agent Provocateur in the criminal law [so evocative, that perhaps for the first time the law shares names with lingerie]. I won't press the Biblical reference for long though, as the Madras High Court painstakingly illustrated in Re Ambujam Ammal [AIR 1954 Mad 326] that these agents of deception were well-embraced by historical texts in India. For removal of doubts, I make it clear that my idea of an Agent Provocateur is as defined by the Royal Commission on Police Powers & Procedure (1929): "one who entices another to commit an express breach of law which he would not have otherwise committed and then proceeds or informs against him in respect of such offence."

Important questions emerge. Should these persons be tried for abetting an offence, or lauded for their covert investigation? Should the evidence be regarded circumspect, or enough to secure convictions? Does the identity of the person - private or state agent - matter?

In that order, we proceed.

Finding Crime or Abetting its Creation?

The judicial treatment of this issue depicts a curious state of affairs. In 1917, Aiyar J. of the Madras High Court in Re Lakshminarayana Aiyar [42 Ind Cas 989] unequivocally held that an Agent Provocateur could be guilty of abetment, while laudable motives may prompt the State to withdraw the case. Nearly a century later the Delhi High Court faced a similar issue in Aniruddha Bahal v. State [2010 172 DLT 269], where those who offered bribes to ministers to catch them in the act were chargesheeted. The Single Judge regarded exposing corruption as part of Fundamental duties under the Constitution. More importantly, he held that "in order to expose corruption at higher level and to show to what extent the State managers are corrupt, acting as agent provocateurs does not amount to committing a crime". 

But in 2014, the Supreme Court appeared to have reversed this dictum in Rajat Prasad v. CBI [(2014) 6 SCC 495]. The case was nearly identical to Aniruddha Bahal: a minister was caught on tape accepting bribes by journalists who were then accused as abettors [nearly, for in Aniruddha Bahal the journalists were accused as principals with no complaint against the ministers]. The Court held that whether journalists could be liable was a question for trial, and no blanket rule could be imposed in such cases. However, the Court said that "a journalist, or any other citizen who has no connection, even remotely, with the favour that is allegedly sought in exchange for the bribe offered, cannot be imputed with the necessary intent to commit the offence of abetment". It remains to be seen in what circumstances would this test of 'no remote connection' will be satisfied.

Questionable Accomplice or Star Witness? 

Less confusion prevails here. The testimony of an Agent Provocateur is admissible and can be relied upon, but Courts have differed in their treatment of such evidence. Nor would such persons be considered accomplices and thus their testimony is not affected by the presumption against such evidence under Section 114 of the Evidence Act 1872. But the Supreme Court in Major E.G. Barsay v. State of Bombay [AIR 1961 SC 1762] held that such witnesses were nevertheless interested and thus their testimony requires corroboration. Like any other question of evidence, treatment of such evidence also remains highly contingent on the facts and circumstances of the case.

Public or Private Agents

The Supreme Court in Rajat Prasad observed that operations akin to sting operations by state agents were "yet to be experimented and tested in India legal acceptance thereof by our legal system is yet to be answered". This, I'm afraid, is blatantly incorrect. The Police have engaged in these measures for the longest time, and Courts have been unequivocal in expressing their disapproval of such practices. In 1954, the Supreme Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [AIR 1954 SC 322] condemned the police for supplying bribe money and a magistrate for participating as a witness for a trap. Subsequently, in 1956 the same Court decided Ramnajam Singh v. State of Bihar [AIR 1956 SC 643] and its observations warrant reproduction in full: 

"However regrettable the necessity of employing agents provocateurs may be (and we realise to the full that this is unfortunately often inevitable if corruption is to be detected and bribery stamped out), it is one thing to tempt a suspected offender to overt action when he is doing all he can to commit a crime and has every intention of carrying through his nefarious purpose from start to finish, and quite another to egg him on to do that which it has been finally and firmly decided shall not be done.

The very best of men have moments of weakness and temptation, and even the worst, times when they repent of an evil thought and are given an inner strength to set Satan behind them; and if they do, whether it is because of caution, or because of their better instincts, or because some other has shown them either the futility or the wickedness of wrongdoing, it behoves society and the State to protect them and help them in their good resolve : not to place further temptation in their way and start afresh a train of criminal thought which had been finally set aside."

This issue of the Agent Provocateur being a State agent also bears importance for the next post, where we discuss the position of Eve, the tempted.