This Article discusses the recent decision of a three Judge Bench of the Supreme Court of India in State of Gujarat v. Mansukhbhai Kanjibhai Shah (‘Mansukbhai case‘) dated 27 April 2020 wherein in a landmark judgment, the Supreme Court has brought ‘Deemed Universities’ under the purview of the provisions of the Prevention of Corruption Act, 1988 (‘PC Act’).
Needless to mention, the PC Act is a dynamic legislation. The dimension of the PC Act has undergone several changes over the past years widening the spectrum of the statute for better and effective enforcement of its purpose. The year 2018 can be said to be an iconic year for introducing an array of major amendments in the PC Act vide Prevention of Corruption (Amendment) Act, 2018. These are broadly, inter alia, (a) insertion of definition of ‘undue advantage‘ in Section 2(d) of the PC Act; (b) substitution of Section 7 (Offences related to public servant being bribed); (c) Substitution of Section 8 (effectively introducing offences relating to bribing of a public servant); (d) Substitution of Section 9 (effectively introducing offences relating to bribing a public servant by a commercial organization; (e) extending the term of punishment for abetment under Section 12; (f) expanding the term of punishment for habitual offenders under Section 14; (g) insertion of Section18A (Chapter IVA – attachment and forfeiture of property); and (h) extending the requirement of sanction to former public officials (Section 19) and many others.
This case approached the Supreme Court by way of a criminal appeal against order dated 2 February 2018 passed by the Gujarat High Court in a criminal revision application wherein the High Court held that a Deemed University is not a regular university getting a Government grant and therefore a trustee of a charitable trust (‘Trustee’) which sponsored and established the said Deemed University cannot be said to be a ‘public servant‘ for the purpose of the PC Act.
The expression of ‘public servant‘ (Section 2(c) of the PC Act) and ‘public duty‘ (Section 2(b) of the PC Act) have constantly attracted judicial attention in the past years. Constricting the present discussion to the decision in the Mansukhbai case, the pivotal question which fell for consideration was whether the Trustee was to be covered under the definition of a ‘public servant‘ under Section 2(c) of the PC Act. The Supreme Court dissected this question into two limbs being firstly, whether a ‘Deemed University’ is covered under the provisions of the PC Act and secondly, whether the Trustee can be termed as a ‘public servant‘ under the provisions of the PC Act.
It would be apposite to have a look at sub subsection (xi) of Section 2(c) of the PC Act which sets out the categories of a public servant:
“any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any their teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations”
The interpretative necessity arose before the Supreme Court owing to the fact that ‘any University‘ under Section 2(c)(xi) does not provide in clear terms which gives rise to an ambiguity as to whether a ‘any University‘ includes a Deemed University.
Summarily, the Appellant State’s submissions were two fold. Firstly, private universities may also perform public function. Secondly, University under Section 2(c)(xi) has to be purposively interpreted and has to include a Deemed University considering the tone and tenor of the PC Act.
On the other hand, summarily, the Respondent Trustee’s submissions were two fold. Firstly, interpretation of a criminal statute has to be in stricto sensu. In cases of two possible interpretations, the Court should lean towards the construction which exempts penalty rather than the one which imposes the same. Secondly, the definition of ‘university‘ does not include a Deemed University. Under the University Grants Commission Act, 1956 (‘UGC Act’), a Deemed University (Section 3) is different from a university (Section 2(f)). The term ‘university‘ has to be read in accordance with the UGC Act and only those universities under section 2(f) of the UGC Act can be covered under the PC Act. Hence, the Trustee of a Deemed University cannot be said to be a ‘public servant‘ under the PC Act.
The Supreme Court while reversing the decision of the Gujarat High Court, held that a Deemed University is not excluded from the ambit of the term ‘University‘ under Section 2(c)(xi) of the PC Act and that the Trustee on the board of the Deemed University is a ‘public servant‘ under Section 2(c) of the PC Act. The findings of the Supreme Court were based on (a) a primary focus on the objects and reasons of the PC Act; and (b) basic principles of cannons of interpretation. Broadly, those are as under:
Judiciary has always been very progressive towards expanding the coverage of the PC Act. In this regard, the landmark judgment in Ramesh Gelli and Ors. v. Central Bureau of Investigation reported in (2016) 3 SCC 788 is an easy recollection wherein the Chairman/ Managing Director or Executive Director of a private bank operating under the license issued by RBI under Banking Regulation Act, 1949 was held to public servants performing public duties for the purposes of the PC Act.
Legislative debates prior to the enactment of the PC Act reveal that the purpose of preventing corruption in educational institutions have always been emphasized. The decision in the Mansukhbhai case goes a step further to give effect to the unequivocal legislative intent which is to widen the amplitude and scope of the provisions of the PC Act.
Contributed by: Nitesh Jain, Partner; Adrish Majumder, Associate
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