Seeking ‘sex favour’ is corruption under proposed law

Seeking ‘sexual favour’ can be considered as bribe and people can be penalised for it under a new law proposed by a Parliamentary Committee.

In its report on new anti-corruption bill, the Select Committee of Rajya Sabha has endorsed Law Commission's report and recommended inclusion of "undue advantage" in a relevant provision of the proposed legislation to cover "any gratification other than legal remuneration", including sexual favours, to explain offence relating to public servant being bribed.

In a first, the Parliamentary Committee has recommended criminalising private sector bribery by bringing in corporates and their executives in the ambit of proposed anti-corruption law and recommended jail term of upto seven years along with fine. Besides, it has suggested punishment for bribe givers too.

The instances of graft are covered under Prevention of Corruption Act, 1988. To enlarge the definition of taking bribe and cover private sector bribery, the government has decided to introduce Prevention of Corruption (Amendment) Bill, 2013, which is pending. The term used in the bill to define bribery related offences was "financial or other advantage".

In November last year, some official amendments were moved to replace the term "financial or other advantage" with "undue advantage" to make "any gratification other than legal remuneration" punishable. The Select Committee of the Upper House examined the bill and submitted its report recently.

"Members of the Committee also felt that the purport of the words 'undue advantage' used in the proposed amendments includes all forms of pecuniary and non-pecuniary gratifications and appears to be wide enough to be misused by the enforcement agencies," the report said.

The Committee, apprehends that the enforcement or probe agencies may misuse the expression to harass public servant as well as members of civil society in corruption cases and advises that adequate precautions be taken in this regard, it said. "The Committee, however, notes that the Law Commission of India in it Two Hundred Fifty-fourth Report (February, 2015) has suggested to use the expressions 'undue advantage' in the PC Act. The Committee endorses the aforesaid amendments proposed to Section 2 of the PC Act, 1988 under the clause," it reads.

The Law Commission had in its report said "financial or other advantage" as mentioned formulation was narrower than the proposed changes to cover "any gratification whatever, other than legal remuneration".

"For example, it clearly covers sexual favours as 'gratification' in return for the public servant to do/refrain from doing a certain act. However, "other advantage" in "financial or other advantage" being interpreted using ejusdem generis (of or as the same kind) 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," it said, recommending use of "undue advantage" in the proposed bill.

The report said some stakeholders were of the view that there is need to provide an explanation to the terms 'non-pecuniary benefit' (being considered as an offence under corruption) as there is every possibility of filing of malicious and false complaints against public servants.

"Further, it was also suggested that casual exchange of hospitality like presenting traditional gift, souvenir or memento subject to a certain monetary limit and courtesy lunch, dinner during meeting or official visit may not be brought under the purview of 'undue advantage'," the Select Committee report said.

The panel apprehended that the probe agencies may misuse the proposed clause to harass public servant as well as members of civil society in corruption 'and advised that adequate precautions be taken in this regard.