NEW DELHI: The drafting of a bill to amend the Prevention of Corruption Act has come under the criticism of the Law Commission which has held that the approach to "transplant" certain provisions from a foreign legislation is misconceived and will create further confusion.
The law panel, in its recommendations on the Prevention of Corruption Act (Amendment) Bill, 2013 pending in the Rajya Sabha, noted that a perusal of the proposed amendments make it clear that these "substantially replicate" the provisions of the UK Bribery Act 2010.
The bill was introduced by the erstwhile UPA government. "This creates certain problems because the Bribery Act was enacted to repeal the common law offence of bribery... More importantly, and this distinction is significant, the Bribery Act applies to any person and is not restricted to public servants, as in India," according to the 254th report of the Commission.
The panel said the UK Law Commission and the 2010 Act did not draw a distinction between public servants and the private sector in determining the limits of the bribery offence. But India's Prevention of Corruption Act, 1988 is, in contrast, applicable only to public servants or those expecting to be a public servant. "Thus, the approach of the 2013 Bill to transplant certain provisions from the UK Bribery Act, while well intended, is misconceived and will serve to create further confusion and ambiguity," it said.
Referring to the 2013 bill and a fresh bill prepared by the NDA government in 2014, the report said, "The proposed 2014 amendments seem to revert to the spirit of the 1988 formulation, without any clear explanation of the distinction attempted to be drawn, if any, between 'due' and 'undue' financial or other advantage."
Unlike the 2013 or 2014 formulations, 'gratification' has been defined in the 1988 Act to "expressly not [be] restricted to pecuniary gratifications or to gratifications estimable in money. For example, it clearly covers sexual favours as gratification in return for the public servant to do or refrain from doing a certain act," it said.
"However, other advantage in financial or other advantage being interpreted using ejusdem generis (rules of interpreting law), does not seem to cover sexual favours in return for the public servant's acts or omissions. Thus, the proposed amendment is actually narrowing the scope of corruption, instead of the stated intent of expanding it," the report said.