Unfolding the net: Comprehending the terms ‘Public Servant’ and “Public Duty” under the prevention of Corruption Act. 1988.
By: Mudasir Khan
It has rightly been said byHon’ble Justice N.V. Ramana that, “Corruption is the malignant manifestation of a malady menacing the morality of men.”
India ratified the United Nations Convention against Corruption (UNCAC) and the United Nations Convention against Transnational Organised Crime (UNTOC) in the year 2011. However, much before the ratification, there was already an anti-corruption law in place called the Prevention of Corruption Act, 1988 (amended 2018). The present Act of 1988 envisages widening of the scope of the definition of the expression “public servant”, which was brought in force to uphold the international standards & to achieve the purpose of punishing and curbing corruption among public servants.
Section 2 (c) of the Prevention of the Corruption Act, provides a comprehensive definition of “Public Servant” under clauses (i-xii).
Section 2 (c) (viii) of the 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. “
Further Public Duty is defined in section 2 (b) of the aforesaid Act as “a duty in the discharge of which the State, the public or the community at large has an interest.
Relevant/important case laws:
In ‘State of M.P V/s. Ram Singh’ reported as (2000) 5 SCC 88, the apex court held: …“In construing the definition of “public servant” in clause (c) of Section 2 of the 1988 Act, the court is required to adopt a purposive approach as would give effect to the intention of the legislature. In that view the Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken assistance of. It gives the background in which the legislation was enacted. The present Act, with a much wider definition of “public servant”, was brought in force to purify public administration. When the legislature has used such a comprehensive definition of “public servant” to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of “public servant”, therefore, deserves a wide construction.
In Subramanian Swamy V/s. Manmohan Singh, (2012) 3 SCC 64, apex court observed:
Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end.
Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption.That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.
Apex court in another Judgment (2016) 3 SCC 788 Central Bureau of Investigation V/s. Ramesh Gelli&Ors., observed and held as under:- “ The enactment of the PC Act with the clear intent to widen the definition of ‘public servant’ cannot be allowed to have the opposite effect by expressing judicial helplessness to rectify or fill up what is a clear omission in Section 46A of the BR Act. The omission to continue to extend the deeming provisions in Section 46A of the BR Act to the offences under Sections 7 to 12 of the PC Act must be understood to be clearly unintended and hence capable of admitting a judicial exercise to fill up the same. The unequivocal legislative intent to widen the definition of “public servant” by enacting the PC Act cannot be allowed to be defeated by interpreting and understanding the omission in Section 46A of the BR Act to be incapable of being filled up by the court.”
The unequivocal legislative intent to widen the definition of “public servant” by enacting the PC Act cannot be allowed to be defeated by interpreting and understanding the omission in Section 46A of the BR Act to be incapable of being filled up by the court.”
In State of Gujarat V/sMansukhbhaiKanjibhai Shah. 27/04/2020, Criminal Appeal No. 989 of 2018, supreme court observed:
“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. “
While interpreting the above definition apex court held that 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. 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.
The Hon’ble Apex Court while dealing and interpreting the definition of the term ‘Public Servant’ in several cases, has made the following observations:
“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.”
Recently the issue once again came up for consideration before the Honourable High of Jammu & Kashmir &Ladakh in a petition, titled: Sheikh Abdul Majeed S/o Late Ghula Ahmad Sheikh Mohammad &anr. V/s. U.T of J&K through Senior Superintendent of Police, Police Station Anti CorruptionBureau Srinagar. (CRM(M) No. 464/2023 CrlM No. 1105/202).
Through a medium of the aforesaid petition, petitioners approached the Honourable High Court of Jammu & Kashmir &Ladakh thereby sought quashing of the FIR No. 16/2023 dated August 18-2023, registered against them in police station Anti-corruption Bureau Srinagar under sec 7 & 7 A of the Prevention of Corruption Act 1988 primarily on the ground that the FIR had been registered beyond jurisdiction and it amounts process of abuse of law.
The moot question which came up for consideration in the aforesaid petition are as under:- (a) Whether the petitioners fall within the ambit of ‘public servant’ as defined under Section 2(c) of the Act and whether the petitioners are performing ‘public duty’ as defined under Section 2(b) of the definition clause of the Act.
(b) If the allegations are taken at face value, whether the ingredients of Section 7 and 7A have been made out in the instant case with a view to proceed against the petitioners under Prevention of Corruption Act.
Observations:
“The court while dismissing the petition held that both the petitioners fall within the ambit of ‘public servant’ as defined under Section 2 ( c) of the act,” and further elaborated that: ..When the legislature has introduced a comprehensive definition of “public servant” to achieve the purpose of punishing and curbing the growing menace of corruption in the society imparting public duty, it would be apposite not to limit the contents of the definition clause by construction which would be against the spirit of the statute.
Further it was observed that “From a bare reading of the definition of the word ‘public servant’ as defined in the PC Act, it is emphatically clear that a person who holds the office by virtue of which he is authorised or required to perform any public duty and any person or employee of any institution, receiving or having received any financial assistance from the Central government or State government or local or other public authority, should be considered as a public servant,”
The explanation to Section 2(c) of P.C. Act would further go to show that such a person may be appointed by the Government or not, therefore, a ‘public servant’ needs not be a Government / civil servant, but a Government / civil servant is always a public servant. The High Court further ruled that offences under the Prevention of Corruption (PC) Act could be invoked not only against a public servant but also against a person, who by virtue of his office is discharging “public duty”.
Emphasising the need for eradication of corruption, Justice Nargal, observed: “This court is of the firm view that a zero tolerance towards corruption should be the top-notch priority for ensuring system-based and policy-driven, transparent, and responsive governance. Corruption cannot be annihilated but strategically be dwindled by reducing monopoly and enabling transparency in decision making. However, fortification of social and moral fabric must be an integral component of long-term policy for nation building to accomplish corruption free society.
Besides, the issue before the court was “whether the ingredients of Section 7 and 7A have been made out in the instant case to proceed against the petitioners under the PC Act”. The court held that:
“Even if a person is not a public servant but by virtue of his office, however, if he is discharging a public duty then they are covered under the ambit of the PC Act,” the court said. “
Pertinently in Special Leave petition (SLP) preferred by the petitioners against the judgement of the J&K High Court, apex upheld the verdict of J&K High Court with the following observations:
“We do not find any reason to interfere with the order impugned in this petition,” a division bench of the Supreme Court comprising Justice Aniruddha Bose and Justice Bela M Trivedi said while dismissing a Special Leave Petition against the High Court judgment.”
Conclusion:
The above discussed judgements makes a decisive contribution to expand the scope and coverage of anti-graft legislation so as to eradicate the menace of corruption from all the spheres of Public administration. Further the principles laid down by the above discussed judgments of apex court & High Court are indicative of the judicial mind to give effect to the spirit and intent of the Prevention of Corruption Act and not to let the legislature’s inadvertent lapse prevent a broad interpretation to the term “ Public Servant “ under the prevention of corruption Act..
The writer is Law Officer, Department Of Law, Justice& Parliamentary Affairs U.T of J&K.
