With the amendments to the Prevention of Corruption Act (PCA) approved by the Lok Sabha earlier this year, the law came into effect in July, after President Ram Nath Kovind’s assent. In a recent development, a senior government official said that asking for or accepting sexual favours would also be considered as bribe under the revamped law.
Explaining that the Prevention of Corruption (Amendment) Act 2018 included the phrase “undue advantage”, which includes gratification apart from legal remuneration, the government official said that asking for sexual favours would also be included in this, along with things like expensive club memberships and hospitality.
The meaning of the word “gratification”, under the amendment, has also been expanded to include non-monetary gratification.
However, inclusion of asking for sexual favours under bribe may not work out in the best manner, say lawyers.
Asking for sexual favours is sexual harassment
Bindu N Doddahatti, an advocate working with the Alternative Law Forum in Bengaluru argues that asking for sexual favours is sexual harassment, plain and simple. “We already have provisions to deal with it like section 354A of the IPC (sexual harassment) and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013,” she points out.
She explains that there are two kinds of sexual harassment: quid pro quo where a person in power asks someone for a sexual favour for advancement or under threat, and creating a hostile work environment for the woman. “Asking for sexual favours easily gets covered in the former,” Bindu argues.
Bindu adds that unlike bribes, sexual harassment is not quantifiable, and considering it a bribe does not add up. “It’s a diversion from the act of sexual harassment itself,” she states.
However, Akila RS, ad advocate practicing at the Madras High Court points out that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 usually only applies when the perpetrator and victim are both employees of the same place. “It usually only goes up to a disciplinary proceeding within the organisation,” she says.
In that sense, Akila appreciates that the ambit of the Prevention of Corruption Act is being expanded with the understanding that not all bribes are monetary in nature. “The anti-graft aw that way criminalises the act of public servant asking for a sexual favour, even if the other person has not been compelled to give the sexual favour,” she says.
Penalising bribe givers puts victims at disadvantage
One of the salient features of the amended anti-graft law is that it penalises bribe givers as well, who can be imprisoned for up to seven years. Experts have pointed out how unlike the original Prevention of Corruption Act 1988 which criminalised colluding bribe givers as abettors, the amendment did not make a distinction between the colluders and the ones who are coerced into giving bribes.
The exception is made only when a coerced bribe giver reports the matter to an enforcement authority or investigating agency within seven days of the act.
“Including sexual favours as bribes is fine, because it is an acknowledgement of different kinds of corrupt practices. However, it is this provision of penalising bribe givers that is worrisome in this context,” Akila says.
“We need to think of the unintended consequences of this section for the victim when it comes to sexual favours. If you are enforcing this provision of penalising bribe givers on a woman, you’re going to be putting her at a tremendous disadvantage,” she explains.
“When you are making bribe giving a crime, you are disincentivizing reportage of the bribe. If a person has been compelled to give a sexual favour, they have to inform the police within a week to be able to be protected under this law, which is a very small window. This creates a huge disability in terms of effective, fear-free reportage,” she adds.
Comparing a bribe taker to a sexual criminal
Bindu also argues that comparing a person who takes a bribe to a potential molester or rapist is also problematic. “The crimes are not equitable and quantifying sexual harassment and sexual trauma that way is problematic,” she says.
However, Akila says that intellectualizing it in terms of how wrong each of the crimes is, is a different matter. “The Prevention of Corruption Act is a very serious act. That way if you see the IPC section 354 (outraging a woman’s modesty) carries a punishment of six months, whereas under the anti-graft law, a public servant will face a much more severe punishment for asking for a sexual favour. The Act will not supersede other legislations, but will be applied in concurrence,” she states.