Public Servant in Corruption Law

Introduction

The term corruption has been seen as an unethical and immoral act undertaken by a person having an authority in order to acquire illicit benefit or abuse their power in order to achieve private gain. Corruption is definitely the biggest challenge in front of any government because the system itself becomes handicapped as its own employees are slaves of another. As per my understanding the problems which are faced by our country is due to the increasing rate of corruption in the country. From the government administration to the normal human being everyone is corrupted in their own way. Corruption plays an important role in making the problems even bigger than the actual. In India today also the prime reason for poverty is corruption. There are also other problems such as unemployment, illiteracy, pollution, external threats, underdevelopment etc. are posed in front of the Indian government and due to that the corruption came in power.

Corruption is an offence which is punishable under various legislations. In India, the law relating to corruption is broadly governed by the Indian Penal Code, 1860 (IPC) and the Prevention of Corruption Act, 1988 (POCA). Under IPC from Section 161 to Section 165A defines various activities such as taking bribes, influencing a public servant through corrupt and illegal means, and public servants accepting valuables from accepting gifts are all punishable criminal offences if committed by a person. Another act, The Prevention of Corruption Act, 1988 was enacted by an Indian parliament in order to curb corrupt practices in government department and public sector undertaking. It also deals with all the laws relating to the offences by public servants dealing in the act of corruption and criminalizes the person involved with that particular offence. The Prevention of Corruption Act, 1988 (POCA) has been amended in 2018 and introduce several changes to the former act such as before as 1988 act only the bribe taker would be liable but from the amendment act the bribe giver would equally be liable, commercial organizations are liable to be prosecuted after the amendment act and many other changes have been brought which would be explained later. But now I would like to explain the meaning of the term ‘public servant’ laid down under Prevention of Corruption Act, 1988.

Meaning of the term ‘public servant’ under POCA

The term public servant defined under the prevention of corruption act 1988 which states that who can be called as a public servant. Public servant can be:

  1. Any person who is performing public duty and getting paid by the Government or remunerated by the Government by fees or commission.
  2. Any person in the service or pay of a local authority
  3. 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
  4. 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
  5. Any person authorized 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.
  6. Any arbitrator or other person to whom any cause or matter has been referred for decision or report by court of justice or by a competent public authority.
  7. 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.
  8. Any person who holds an office by virtue of which he is authorized or required to perform any public duty.
  9. 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.
  10. 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.
  11. 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.
  12. 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.

Offences and Punishment of Public Servant under Corruption Law

According to Chapter 3 of POCA the offences related to any form of corruption by a public servant is defined and also the punishment for the same. The Section 7, 8 9 and 10  of POCA criminalized various corrupt acts of public servants and middlemen seeking to influence public servants per se while excluding the bribe giver as well as private entities -taking bribes but after  the supreme court stand on the case of Central Bureau of Investigation, Bank Securities & Fraud Cell v. Ramesh Gelli & Ors.[1] held that now private entities would also be included in that and the chairman and directors of a private bank would also be ‘public servants’ for the purpose of POCA.

  • Section 7Public servant taking gratification other than legal remuneration in respect of an official act-  In this section whoever being a public servant accept or obtains from any person for himself or for any other person any gratification (not limited to being pecuniary in nature or estimable in money) other than a legal remuneration in a form of motive or reward for doing or forbearing to do any official act in the exercise of public duty shall be punishable with imprisonment which shall be not less than three years but which may extend to  seven years and shall also be liable to fine.
  • Section 8Taking gratification, in order, by corrupt or illegal means, to influence public servant- This section deals with whoever accepts or obtains or agrees to accept, or makes an attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, to influence any public servant, shall be punishable with imprisonment for a term which shall be not less than three years but which may extend to seven years and shall also be liable to fine.
  • Section 9- Taking gratification, for exercise of personal influence with a public servant. — According to this section whoever accepts or agrees to accept from any person, for himself or for any other person any gratification whatever, as a motive or reward for inducing, by the exercise of personal influence with any public servant shall be punishable with imprisonment for a term which shall be not less than three years but which may extend to seven years and shall also be liable to fine.
  • Section 10- Punishment for abetment by public servant of offences defined in Section 8 or 9. – By being a public servant, the offences defined under Section 8 or section 9 are committed and abetment to the offence shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

Changes after POCA Amendment Act

POCA amendment was introduced in parliament in 2013 and after 5 long years wait it was passé in Lok Sabha and then in Rajya Sabha in 2018. Finally the President gave his assent on July 26, 2018 and the POCA Amendment Act came to be enacted. Some key changes which are introduced by this amendment are-

  1. Bribe giver is also liable to be prosecuted– As per the old act only the taker of bribe is liable but after the amendment act the bribe giver shall also be equally liable. Such offence would be punishable with the maximum imprisonment for a period of seven years and/or fine.
  2. Commercial organizations liable to be prosecuted– Now the commercial organization if consent to give bribe to public servant would also be liable. If any director, manager, secretary or other officer of the concerned commercial organization is proven to have consented and / or connived to commit the said offence, such officer would be punishable with imprisonment for a term not less than three years and extendable to seven years and also liable to fine.
  3. Prior permission to be sought before initiating investigation- Due to the sensitive nature of a public servant’s role, POCA Amendment Act makes it mandatory for police officers to seek prior approval before conducting an enquiry into any offence committed by incumbent and retired public servants. The approval would have to be sought from the relevant union or state government in whose employment the accused ‘public servant’ committed the offence in discharge of his official functions and duties.

Conclusion

Corruption is a virus that is eating the root of the society; it not only degrades an individual’s growth but also the risk of growth of the entire country. It is the biggest problem which the country is facing right now. In the administrative department itself the corruption is in that level that one cannot imagine and due this factor the growth and many problems the country is facing. Due to all this legislation the Prevention of Corruption Act, 1988 (POCA) was enacted so that the corruption in government departments can be controlled. This act has its own power and a very stringent law which punishes the public servant if found guilty in any act of taking or giving bribe. The POCA despite this lacunae is a very powerful Act which needs proper implementation in order to curb corruption from grass root-level. This act is technically drafted in a beautiful way, but it has not effectively come to the aid of the government to curb corruption the reason for this might be simple punishment to the violators, so the punishment prescribed in the Act shall be much stricter to deter the intending violators

Questions

  1. What are the legislations related to corruption law?
  2. What is the aim of the ‘public servant’ under POCA?
  3. What changes have been brought in POCA after its amendment act?
  4. What are the punishments for public servants if involved in corrupt practices?

[1] Central Bureau of Investigation, Bank Securities & Fraud Cell v. Ramesh Gelli & Ors., Crl. App. 1077-1081 of 2013 decided on February 23, 2016.

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