anti-graft-law-covers-deemed-universities

Context: The Supreme Court of India, in a significant ruling has held that bribery and corruption in a deemed university can be tried under the Prevention of Corruption Act

What SC said?

  • Individuals, authorities or officials connected to a deemed university, whatever be their role or designation, come under the definition of a ‘public servant’
  • Though not seen as public servants in the conventional sense, officials perform duties in the discharge of which the State, the public and the community at large have an interest
  • They can be tried and punished under the anti-corruption law. 
  • Deemed universities come within the ambit of the term ‘university’ in Section 2(c)(xi) of the Prevention of Corruption (PC) Act, 1988. 
  • A deemed institution under the University Grants Commission Act of 1956 has the same common public duty like a university to confer academic degrees, which are recognised in the society. 

Interpretation of PC Act by the SC:

  • The object of the PC Act was not only to prevent the social evil of bribery and corruption, but also to make the same applicable to individuals who might conventionally not be considered public servants. 
  • The purpose under the PC Act was to shift focus from those who are traditionally called public ocials, to those individuals who perform public duties. 

Keeping the same in mind, it cannot be stated that a deemed university and the officials therein, perform any less or any different a public duty. 

Prevention of Corruption Act 

The 1988 Act

Enacted by the parliament of India to combat corruption in government agencies and public sector businesses in India. It empowers the Central and the State Government to appoint Special Judges to try the following offences: 

  1. Punishable under this Act.
  2. Conspiracy to commit or any attempt to commit or any abetment of any of the offences specified under the Act. 

Powers of a Special Judge: While trying any offence punishable under the Act, a special judge shall exercise all powers and functions exercised by a District Judge under the Criminal Law Amendment Ordinance,1944.

Punishable offences under the PCA:

 

Offences

Punishment(if found guilty)

  1. Taking gratification other than legal remuneration in respect of an official act.
  1. Imprisonment - 6 months - 5 years and shall also be liable to fine.
  1. Taking gratification in order to influence a public servant, by corrupt or illegal means.

      2.   Imprisonment - 3 years - 7 years and             shall also be liable to fine

  1. Taking gratification for exercise of personal influence with a public servant.

        3.   Imprisonment - 6 months - 5 years and shall also be liable to fine.

  1. Any public servant, who commits criminal misconduct.

        4.   Imprisonment - 1 year -  7 years and shall also be liable to fine

 

Investigation:

The investigation under the act shall be done by a police officer not below the rank of:

  • In case of Delhi - an Inspector of Police.
  • In metropolitan areas - an Assistant Commissioner of Police.
  • Elsewhere - a Deputy Superintendent of Police or an officer of equivalent rank shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a magistrate of first class, or make any arrest therefore without a warrant.

The 2018 amendments to PCA

  • The introduction of Section 17 A (1) by which prior permission for investigation of corruption offences was required from the government.
  • The removal of Section 13 (1) (d) (ii) (criminal misconduct) from the Act. 
    • It had earlier made it an offence for a public servant to abuse his position to give pecuniary or other advantage to a third party.

Provisions of the PC(Amendment) Act, 2018:

  • Enhancement of punishment for bribe-taking: Now - 3 years(min) -  up to 7 years(max) with fine, from the earlier 6 months, with extension up to 3 years with fine.
  • Definition of Undue Advantage expanded: The earlier limited definition of undue advantage expanded to now include “anything other than legal remuneration”.
  • Gifts are graft now: Gifts received for established undue advantage/malafide motive are now considered an act of corruption.
  • Bribe giving a crime now: For the first time, the giving of bribe has now been made a direct offence on par with taking a bribe. At the same time, protection has been provided against coercive bribery, as long as the victim comes forward within 7 days.
  • Corporate bribery criminalised: Superiors to be held if employee/agent has bribed with their approval, for advancement of the organisation’s interests.
  • Immediate forfeiture: Law enforcement agencies are now empowered for immediate attachment & forfeiture of illegal property of a public servant, invoking provisions of the Prevention of Money Laundering Act (PMLA).
  • Time limit to conclude investigation: To conclude the investigation and trial within 2 years, extendable up to 4 yrs.

Concerns:

  • A prior sanction requirement: Such requirement already exists in law before proceeding for prosecuting a public servant i.e.,after investigations conclude. But the new law seeks a prior approval mechanism even before commencing investigations, which will make implementation of the act further difficult.
  • The distinction between coercive and collusive bribe giver is not clear.
  • May harass the commercial organizations: The Act provides that if a commercial organisation is found guilty of an offence, every ‘person in charge’ of the commercial organisation will also be liable to prosecution.

Source: The Hindu