This article is written by Chitrangada Singh and Pratyush Jain, graduates from Government Law College, Mumbai and are working as Associates in the Dispute Resolution team and General Corporate team, respectively, in different law firms in Mumbai.
Table of Contents
Genesis of today’s corruption law in India
The Prevention of Corruption Act, 1988 (see here), is an offspring of the Prevention of Corruption Act, 1947 (“Repealed Act”). The shortcomings and limitations of the Repealed Act led to the genesis of the present Prevention of Corruption Act, 1988 (“PC Act”). Amongst several important provisions that were absent in the Repealed Act, certain important terms and provisions were introduced and augmented under the PC Act by including the definition of ’Public Duty’ and ’Public Servant’.
The Repealed Act with its limited scope defined a ‘Public Servant’ as someone who falls in the description list of Section 21 of the Indian Penal Code, 1860 (see here). However, with the enactment of the PC Act, the scope and applicability of the law relating to prevention of corruption in India was intended to be extended to all such acts which were in the nature of ‘Public Duty’. Pursuant to the same, a comprehensive list of persons who shall be classified as Public Servant was introduced under Section 2(c) of the PC Act.
Widened scope of definitions
The term ‘Public Duty’ is defined in Section 2(b) of the PC Act, “as a duty in the discharge of which the State, the public or the community at large has an interest”. Further, Section 2 (c)(viii) of the PC Act envisages a public servant to include, “any person who holds an office by virtue of which he is authorised or required to perform any public duty”. In view thereof, it can be inferred that to designate a person as a Public Servant and to thereby hold such person liable under the PC Act, the emphasis lies upon the nature of duty i.e. public duty carried out by such person and not the position held by him or her.
To reiterate, Section 2(c) of the PC Act in order to define the term ‘Public Servant’ now lists down the categories of individuals under sub-clauses (i) to (xii) who shall be classified as a ‘Public Servant’. The first explanation to the said provision also clarifies that persons falling under the said sub-clauses shall be deemed to be public servants irrespective of their appointing authority. The second explanation further expands the ambit to include every person who de facto discharges the functions of a public servant, and that he should not be prevented from being brought under the ambit of ‘Public Servant’ due to any legal infirmities or technicalities.
Are you a Public Servant?
It has been settled by the Hon’ble Apex Court that, once the nature of the performance of duties gets crystallized in terms of Section 2(c), no doubt remains as to who would come within the ambit of the PC Act. While determining the question of whether a certain individual or a person is a ‘Public Servant’, one of the aspects is to see whether he holds office under an authority which is ‘State’ within the meaning of Article 12 of the Constitution of India. This aspect is in addition to the context of the definition of ‘Public Servant’ under the PC Act.
The Hon’ble Apex Court while dealing and interpreting the definition of the term ‘Public Servant’ in several cases, has made following observations and conclusions:
- In a situation where the cumulative value of the redeemable and non-redeemable shares subscribed by the Central Government in the National Cooperative Consumers Federation of India Limited (“NCCF’) constitutes almost 85% of its share-capital, the same ought to fall within the meaning and scope of the expression “aided” as appearing in Section 2(c) (iii) of the PC Act. Therefore, the ‘Assistant Manager’ in the NCCF is a ‘Public Servant’ as required Under Section 2(c) of the PC Act.
- Provision of a statute assigning work to licensed surveyors, relating to discharge of statutory duties controlled by the Survey Department of the State Government, fall within the ambit of Section 2(c) clause (i) and (viii) of the PC Act. These licensed surveyors performed duty that was previously discharged by the surveyors of the Survey Department appointed by the State Government and were different from the private surveyors who had no license from the State Government.
- While dealing with the question of whether the Chairman, Directors and Officers of a private bank before its amalgamation, can be said to be public servants for the purposes of offences punishable under PC Act, it was held that it is the definition of ‘Public Servant’ given in the PC Act, read with Section 46A of Banking Regulation Act, 1949 which actually holds the field for the purposes of offences under the PC Act. In fact, Section 46A of Banking Regulation Act, 1949 as amended, designated the Managing Director and Executive Director of a Banking Company operating under licence issued by Reserve Bank of India as public servants. Thus, the Chairman, Directors and Officers of the private bank were held to be public servants for the purposes of the PC Act.
- Any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would constitute as an aid since the term ‘aid’ has not been defined in the PC Act. A sprinkle of aid to the society will also bring an employee within the definition of ‘Public Servant’.
Status of ‘Deemed University’ under the PC Act
Recently, the Hon’ble Apex Court in the matter of State of Gujarat v. Mansukhbhai Kanjibhai Shah, Criminal Appeal No. 989 of 2018 (see here) (supra) delivered a significant judgement as to the applicability of the PC Act to ‘Deemed Universities’. The salient facts of the case were such that a complaint was filed by the mother of an MBBS student of a ‘Deemed University’ inter alia against the Respondent, who was the Trustee of a trust that established and sponsored the said ‘Deemed University’. The complainant made the allegation that despite full payment of fees for the said MBBS Course, her daughter was asked to make an additional payment of Rupees Twenty Lakhs to be able to take the examination. The charges were framed against the Respondent Trustee and the charge sheet was duly filed. The Respondent Trustee filed an application under section 227 of the Code of Criminal Procedure, 1973 (“CrPC”) (see here) for discharge, before the District and Sessions Court, however the same was rejected. Being aggrieved, the Respondent Trustee filed a criminal revision application before the Hon’ble High Court of Gujarat, at Ahmedabad, which was allowed and the Respondent Trustee was thereby discharged. Hence, the state of Gujarat filed appeal before the Hon’ble Apex Court challenging the said order of the Hon’ble High Court of Gujarat allowing discharge of the Respondent Trustee.
In view of the facts and circumstances of the case, two issues arose for consideration being i) whether a ‘Deemed University’ is covered under the provisions of the PC Act? and ii) whether the Respondent who is the trustee, of a trust which established and sponsors the Deemed University, can be termed as Public Servant under Section 2(c)(xi) of the PC Act?
Upon hearing arguments in detail by the Counsels of both the parties and relying upon the principles laid down and settled under various precedents, the Hon’ble Court answered the above issues in the following manner:
By invoking the doctrine of pari materia, the Hon’ble Court rejected the contention of the Respondent that the term “University” needs to be read in accordance with the University Grants Commission Act, 1956 (“UGC Act”) (see here), wherein only those Universities covered under the Section 2(f) of the UGC Act are covered under the PC Act. Thereby, held that, “such an interpretation, by importing the technical definition under a different Act may not be feasible herein. It is a settled law that technical definitions under one statute should not be imported to another statute which is not in pari materia with the first. The UGC Act and the PC Act are enactments which are completely distinct in their purpose, operation and object”.
Further delving into the dictionary meaning of the term ‘University’, to derive an independent meaning to the same as occurring under the PC Act, the Hon’ble Court concluded that a ‘Deemed University’ and the officials therein, do not perform any less or any different a public duty than those performed by a University simpliciter and the officials therein. Therefore, for all the above reasons, “Deemed University” under Section 3 of the UGC Act was held to be within the ambit of the term “University” under Section 2(c) (xi) of the PC Act.
In determining the answer to the second issue, the Hon’ble Court opined that in order to appreciate the amplitude of the word ‘Public Servant’, the relevance of the term ‘Public Duty’ could not be disregarded. The language of Section 2(b) of the PC Act indicates that any duty discharged wherein the State, the public or community at large has any interest is called a public duty.
In the particular facts and circumstances of the case, it was undisputed that imparting education to the public is a welfare activity done for public good wherein the public and the community at large has interest, and therefore the Hon’ble Court noted that, it was quite apparent that the Respondent was the final authority with regard to the grant of admission, collection of fees and donation amount and the charge sheet made serious allegations against him for collection of extra amount over the prescribed fees. However, since the matter before the Hon’ble Court came up pursuant to allowing of the Discharge Application under Section 227 of CrPC by the Hon’ble High Court of Gujarat, in favour of the Respondent Trustee holding that he was not a Public Servant under the PC Act. In view whereof, the Hon’ble Court felt a need to properly analyse the connection between the trust and the University as well as the relationship of the Respondent with the University, which required detailed appreciation of evidence by the trial court. For the aforesaid reasons the Hon’ble Court held that, in the said case it was not appropriate for the High Court of Gujarat to have exercised the power under Section 227 CrPC to discharge the Respondent Trustee and ordered that the trial against him for the charges framed ought to be proceeded with, before the concerned court of jurisdiction.
Thus, the Hon’ble Court while amplifying the ambit of the term ‘University’ under the PC Act to include a ‘Deemed University’, observed that it is important to determine the relationship of an accused with the authority or institution recognised under Section 2(c) to incriminate and/or hold him liable under the provisions of the PC Act. Determining the status of a person as a Public Servant under the PC Act may differ from case to case basis the facts and circumstances of the same.
Conclusion
The PC Act, as its predecessor i.e. the Repealed Act, was brought into force with the avowed purpose of effective prevention of bribery and corruption. Thus, a comprehensive definition of ‘Public Servant’ was introduced to achieve the goal of punishing and curbing the growing menace of corruption in the society imparting public duty. It has rightly been said by Hon’ble Justice N.V. Ramana, “that Corruption is the malignant manifestation of a malady menacing the morality of men”. As the concept of donation and other grants has become rampant in the country to get admission in many private universities having a status of ‘Deemed University’, time has come that they shall now be considered as ‘University’ for the limited purposes of the PC Act. The recent judgment in the supra, Mansukhbhai Kanjibhai Shah, brings a relief to many parents and aspiring students, as collection of any additional amount other than the prescribed fee shall give them the right to drag such matters to the appropriate forums under the now widened scope of the PC Act. The PC Act as it stands today provides for, different paths to liability, some of which are especially suited to but by no means confined to, those who hold public office.
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