India is a large country with a population of 125 crores. It is the second-most populous country after China. After independence in the year 1947, India has developed a lot. Despite the development, the challenges like illiteracy, poverty, casteism, corruption, etc. loom over its horizon. Out of all the problems, corruption is the biggest challenge as it poses a serious threat to India’s economic development.
To remove corruption from the roots of Indian society is a challenge. In the pre-independence period, there was no separate law to deal with the corruption cases in India. However, there was only a separate chapter entailed in IPC titled “offence by public servants”. Section 161 to 165 IPC contained the provisions to prosecute the corrupt public servants.
Position after World War II
After World War II, a need for the separate piece of legislation was felt given the scenario of prevalent corruption. It was felt that during World War II, there was a considerate rise in the corruption and the existing laws were proving to be insufficient to deal with the problem.
To prosecute the corrupt public servants in order to curb the ever-growing corruption, the Bill for separate legislation was moved. The said Bill concentrated on the stringent dealing of the cases related to bribery and corruption of the public servants under the Criminal Law and to save innocents from being falsely implicated in corruption cases. This bill was passed and the Prevention of Corruption Act, 1947 came into being.
Today, Corruption Cases in India are dealt with under the Prevention of Corruption Act 1947. Since the coming of the Prevention of Corruption Act, Corruption cases have become a major field of litigation. From the Point of View (POV) of an advocate, the legislation is quite realistic and logical. Nonetheless, a case of corruption demands quite a judicious approach.
Salient features of Prevention of Corruption Act, 1947
This act came into force in the year 1947 but it couldn’t produce the desired results. It neither redefined nor expanded the definition of offences related to corruption which already existed in the IPC. Section 8 of the Act stated that a statement by the bribe giver will not make him liable to be prosecuted. Which means that this section gave immunity to the bribe giver. This act also added the offence of criminal misconduct by a public servant under section 5. Some amendments were also made to this act of 1947 in the year 1964. Still, it couldn’t fulfil the purpose of combating corruption.
Amendment Act of 1988
To the Act of 1947, certain amends were made and the Government of India passed the Prevention of Corruption Act, 1988 with certain modifications. This amended Act combined the provisions of Prevention of Corruption Act, 1947, the Criminal law Amendment Act, 1952 and Section 161-165- A IPC with few alterations. The Prevention of Corruption Act, 1988 widened the scope of the expression “Public Servant” by entailing its definition and also prescribes punishment for a person who helps the public servant in the commission of the offence of bribery and corruption. The scope of the Act has widened and has become more effective.
Definition of a Public Servant:
The definition of a Public servant is given under Section 2 (c) of the Act. Basically, a Public Servant is a person who:
- Gets remunerated by the government.
- The Judge or any other person who is appointed by the court of law to perform any duty, in connection with the administration of justice such as an arbitrator.
- is a chairman or a member of any state commission or board.
- is vice-chancellor of any governing body.
It includes 12 categories of persons within the ambit of Public Servants. The said Section reads as follows:
“2(c) “public servant” means —
- 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;
- (any person in the service or pay of a local authority;
- 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;
- 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;
- 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;
- 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;
- 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;
- any person who holds an officer by virtue of which he is authorised or required to perform any public duty;
- 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 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; 2
- 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;
- 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;
- 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.”
Special features of the Act of 1988
- The Act was passed in the year 1988 to prevent corruption in government offices.
- The Act has 5 chapters spread across 31 sections. The scope of this Act extends to the whole of India except to the State of J&K.
- This Act defines public servant and covers 12 categories of persons.
- This Act empowers the central and state governments to appoint special judges by releasing an official notification in the official gazette of India.
- The appointed judge should be or should have been a session’s judge or an additional session’s judge under the Code of Criminal Procedure, 1973. The hearing of the case shall be on a daily basis. The special judge is also empowered to try any offence other than those punishable under this act.
- The Act also lays down the offences for which a public servant can be prosecuted. These include- taking of gratification other than legal remuneration in doing of an official act. It also included taking possession of something from the person for whom they work.
Supreme Court on the position of Politicians holding public offices (MP’s & MLA’s)
the ambit of the definition of Public Servant clearly sets out that any person who is holding a public office and performing public duties and is remunerated by the Government shall be a public servant. This position has been also clarified vide various landmark cases such as
- Habibulla Khan v. the State of Orissa, (1995) 2 SCC 437 and
- V. Narasimha Rao v. State. (1998) 4 SCC 626
In these cases, the Hon’ble Supreme Court has observed that MP’s and MLA’s are under the ambit of the definition of a public servant under this act. They also hold offices and perform public duty.
In State of West Bengal vs. Manmal Bhutoria, (1977) 3 SCC 440 it was held by the Hon’ble Supreme Court that the crucial date for the purpose of attracting the provisions of the Prevention of Corruption Act is the date of the commission of the offence. When the person arraigned must be “Public Servant”. Retirement, resignation, dismissal or removal of a ‘public servant’ would not wideout the offence which was committed while in service. For any offence committed by a public servant during his tenure, he can be prosecuted even post-retirement.
Investigation of a corruption case:
Section 17 of this Act provides for the person who is competent to investigate. No police officer below the rank of a Deputy Superintendent can investigate the case.
Malicious litigation is a possibility which one cannot ignore in a country where corruption is prevalent. It can truly be a battle of life and death for an innocent who is falsely implicated. A team of legal experts – lawyers, researchers and seasoned advocates who maintain a deep understanding of jurisprudence is a need, to begin with. The team needs to have a thorough knowledge of the law of evidence, legalities of sting operations and legal procedure. The best advocates for corruption cases in Chandigarh have many times come across innocents who take a burn of departmental politics, jealousies and hateful vengeance. Be it any battle, it requires a tough and dedicated army. If an innocent has to come out a winner from a false corruption case made against him, it will take more than prayers. Prayer can come of use, later.