Theme: Government

Can I be punished under the anti-corruption law even if I was not successful in committing the crime?

Yes, if you as a public servant try to steal or sell property given to you as part of your work or take gifts or money unlawfully, you can be punished. It does not matter that you did not succeed. You can be sent to jail for a period of 3 to 7 years and can also be asked to pay a fine.

Example: Mukesh is a police officer. His superior officer has given him gold jewelry for safekeeping, which was returned by a thief during police questioning. Mukesh tries to sell it to Ravi, but the senior officer sees them and stops him. Even though Mukesh failed he is still breaking this law.

Public Servant

You are a public servant if you are:

  • Working for the government
  • Your salary is paid by the government
  • The work you do is a public duty

You can also be considered a public servant if you are:

  • Working for and are being paid by a local authority like a municipality or panchayat.
  • Employed in educational or cultural institutes which get money from the central, state or local government (like the panchayat).
  • A co-operative society engaged in agriculture, industry, trade or banking, and the co-operative society is receiving money from:
    • the government, or
    • a company created by laws passed by the government, or
    • a company that is owned or controlled by the government or aided by the government, or
    • a company in which the government is the majority shareholder.
  • Employed by and being paid by:
    • a company established under central or state laws (for example, the Life Insurance Corporation), or
    • a company which is aided by, owned or controlled by the government, or
    • a company where the government is the majority shareholder (for example, the Air India Limited).

Meaning of Sedition

When anyone tries to bring hatred or contempt or excites disaffection towards the government, they have committed an act of sedition. An act of sedition has to be done through one of the following ways:

  • Words (spoken or written).
  • Visual representation such as signs, videos, pictures or cartoons.

The result of an act of sedition should be violence or public disorder or an attempt to cause violence/public disorder.(( Kedar Nath v. State of Bihar, A.I.R. 1962 S.C. 955.))

The Supreme Court has held in various judgments that the law of sedition is only applicable where:

  • A person causes violence, or
  • A person encourages people to create violence.(( Section 124A, Indian Penal Code, 1860.))

For example, Shri Rampal, the leader of a village, gives a speech where he asks the people to rebel against the Government so that they can secede from India. This leads to a lot of hatred against the Government along with public disorder and riots. Shri Rampal would be held liable for an act of sedition.

Army Control of a Disturbed Area

When it appears to the government that a dangerous situation has developed in a certain area of the country and it requires the armed forces to take control of that area, such an area is declared as a disturbed area. The provisions of AFSPA apply in such disturbed areas.

To declare an area as a ‘disturbed area’ there must exist a grave situation of law and order on the basis of which the Governor/Administrator can form an opinion that the area is in such a disturbed or dangerous condition that the use of armed forces is necessary.

Such a declaration has to be for a limited duration and there should be a periodical review of the declaration before the expiry of six months.

The government has to do this declaration through a notification in the Official Gazette, which is a periodical publication which contains public or legal notices.

Example: The Government of India declared Jammu and Kashmir as a disturbed area in 1990. It was declared a disturbed area because of the rise in insurgency and militancy during that time.

What are unlawful activities?

An unlawful activity can be through actions, words (spoken or written), signs or visible representations, etc. An “unlawful activity” under this law can include((  Section 2(o), Unlawful Activities (Prevention) Act, 1967.)):

  • Anything done to bring about the surrender of Indian territory. For example, staging a coup to take over Delhi from the Government’s control.
  • Any action that supports the withdrawal of a part of Indian territory from the larger Union of India. For example, conspiring to make an Indian state an independent territory which is no longer a part of India.
  • Actions that question or disrupt the sovereignty and territorial integrity of our country. For example, working with foreign agents to overthrow the government.
  • Any action which causes (or wants to cause) discontent against India. For example, publishing a book spreading misinformation and falsely discrediting the Government to incite rebellion.

Public Servants Accepting Bribes

Corruption is the abuse of power by people in power for their own gain in a dishonest or unethical way. In India, it is illegal for public servants to accept money/gifts over and above their salary, in return for doing their duty, favoring a person or for not doing their duty. Any person helping the public servant commit these crimes can also be punished.

Public servants in India are not allowed to:

  • Accept money/gifts other than the salary provided as part of their job;
  • Ask for or get money/gifts, in addition to their salary, in return for doing their official duty;
  • Ask for or get money/gifts, in addition to their salary, in return for not doing their official duty;
  • Be partial to someone who has paid them money or give them gifts;
  • Do any special favours for someone who has offered them money or gifts;
  • You can be sent to jail for a period of 3 to 7 years and be asked to pay a fine for doing any of the above.

A public servant breaks the law by accepting any gift or benefit, not just money. You are breaking the law if you, as a public servant, accept something of value from a person without paying for the gift/service and with whom you have a business or official relationship. You can be sent to jail for a period of 6 months to 5 years and may also have to pay a fine.

Example: You are a public servant working in the Public Works Department and are in-charge of approving tender for road construction. You accept a car from Ravi without paying him any money. You know that his company will apply to your department for approval of a contract to build a highway. If Ravi is given the approval, accepting the car would be considered as accepting a bribe.

Sedition and Dissatisfaction towards the Government

An act is seditious if your act results in people feeling hatred or contempt towards the Government. A person commits sedition if they use either spoken or written words or gestures, aimed at encouraging people to(( Section 124A, Indian Penal Code, 1860.)):

  1. Disobey the authority of the Government, or
  2. Resist the authority of the Government.

These actions should lead people to resort to violence and create public disorder. An attempt to make people disobey or resist the Government through acts of public disorder or violence may also be an act of sedition.(( Nazir Khan v. State of Delhi, 2003 (8) S.C.C. 461.))

Special Powers of the Armed Forces

The Armed Forces (Special Powers) Act, 1958 (AFSPA) grants certain ‘special powers’ to the members of the armed forces in disturbed areas. This law extends to the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Jammu and Kashmir. Jammu and Kashmir has a separate AFSPA enacted in 1990 which is similar to the AFSPA, 1958, except for a few provisions.

Under AFSPA the Military is considered to be “armed forces”. When the Air Forces operate on the ground, then they are also known as “armed forces” and have the special powers and duties under AFSPA. Other armed forces of the central government such as Border Security Force (BSF) are also included under AFSPA. However, the Navy is not included under “armed forces”.

There are certain officers of these armed forces who have been granted special powers i.e. power to shoot and use force, destroy shelters/storage, arrest without a warrant, enter and search. These band of officers include:

  • Commissioned officers,
  • Non-Commissioned Officers,
  • Warrant Officers.