This article addresses the legal debate surrounding the retrospective application of Section 13 of the Prevention of Corruption (Amendment) Act, 2018, in light of the Supreme Court's recent verdict, whilst acknowledging the polarity of decisions rendered in this respect across courts.

Introduction
Corruption in India remains to be a significant concern hindering the socio – economic advancement of the nation & littering its robust bureaucratic structure. The introduction of the Prevention of Corruption Act, 1988 ("PC Act") was a valiant effort on the part of the legislature to combat this issue.[i] The same was accountably supplemented with an amendment act introduced in 2018, in consequence of India's commitment to the United Nations Convention Against Corruption.[ii]

Whilst the amendments made to the original act has produced a bulwark structure against offences committed by public servants, a consequential query remains uncertain : Does Section 13, which characterizes "criminal misconduct", apply retrospectively in lieu of the amendments made?

An Overview of the Amendments
A comparison of the 1988 Act & the 2018 Amendment Act divulges that Section 13 has been amended to merely accommodate the offence of criminal misconduct committed by a public servant. Although the unamended section bore the same title, the provision also criminalised the offence of bribery. In contrast, the current act has clearly demarcated Sections 7 & 13, with the former being solely concerned with the bribery, and the latter with criminal misconduct. Consequently, Section 13(1)(d) has been omitted from the 2018 Act.

Additionally, the scope of the offence realised in the former Section 13(1)(e) was widened & inserted in the amended Section 13(1)(a), the contents of which also consist of the offence enumerated in the former Section 13(1)(c). In summation, Section 13(1)(a) – (d) is now enumerated as Section 13(1)(a) & (b), upon certain alterations having been made to the offences established in the provision.

The contents of Section 13(2) prescribe the minimal & maximum punishments for the offence. Whilst the unamended section established a term ranging from 1 – 7 years, the substituted provision increased the severity of the punishment, prescribing a range of 4 – 10 years of imprisonment.

The Dilemma:
The introduction of the amendment act has burdened courts across India with a pertinent question concerning pending proceedings : is the novel section applicable herein with retrospective effect, or, does the old provision continually apply?

The primary contention forwarded in favour of the forme is that the apparent omission of Sections 13(1)(c) & 13(1)(d) mollifies the rigours of the criminal law, thereby calling for the application of the amended statute retrospectively, as unequivocally laid down in the case of Rattan Lal v. State of Punjab.[iii] The principle of beneficial legislations is also emphasized herein, in cognizance of the settled proposition of law that courts must opt for an interpretation of a statute in the benefit of the oppressed when multitudinous constructions are practicable, in view of Article 20 of the Constitution.

Furthermore, the amendment act lacked a savings clause of its own, although the 1988 Act was equipped with the same. Conventionally, in the absence of a savings clause, Section 6 of the General Clauses Act ("GC Act") will be read into a statute to surmise the implications of a repeal.[iv]

However, in the instance herein, the modifications made are in the nature of substitutions & omissions rather than repeals, the distinction between which was undeniably established by a five-judge bench of the Hon'ble Supreme Court in the case of Rayala Corpn. (P) Ltd. v. Director of Enforcement.[v]

In contrast, contentions with respect to the application of the unamended statute have also been advanced across numerous courts. A preliminary argument substantiating the same is the simple fact that an offence being wiped out of a statute book is not synonymous with the act in itself not having occurred.

Furthermore, the amendment act is unmistakably devoid of a legal fiction and/or any other indication that suggests retrospectivity, thereby corroborating that the amendment act cannot be construed as such due to the crystalline lack of such manifest intention, as emphasised upon in the case of Assistant Excise Commissioner, Kottayam v. Esthappan Cherian.[vi] Additionally, Section 13, being a substantive & penal provision applies prospectively by principle.

Apropos the exercise of Section 6 of the General Clauses Act, the Kerala High Court acknowledged that the substitution of a provision of law has the effect of repealing the prior section and inserting a contemporary rule in its stead.[vii]

Thereby, Section 13(1)(c) cannot be deemed omitted and must instead be construed as repealed. Furthermore, while the offence encompassed within Section 13(1)(d) of the erstwhile enactment was eliminated from the amended Section 13, the same has been incorporated in Section 7 by way of the same amendment act, thereby not constituting a pure omission.

In addition to the contentions illustrated aboveherein, it is pertinent to bear in mind the intention of the legislature, in addition to the jurisprudential principle which establishes that a statute cannot be interpreted in a manner that permits the evasion of its dictum.

Chandrababu Naidu: An Answer to the Conundrum?

On January 16th, 2024, a division bench of the Hon'ble Supreme Court pronounced a verdict that seems to settle this dispute. The judicial proceedings were in respect of Former Telangana Chief Minister, Nara Chandrababu Naidu, and the corruption charges framed against him concerning an alleged scam shrouded by the cover of a Skill Development Corporation, worth Rs.370 Crores.[viii]

Although no final decision was rendered in light of the distinct opinions of the bench, both learned judges surmised that the application of Section 13 as is stood prior to the amendment is germane, with Justice A. Bose emphasising that the obliteration of a provision from a statute does not indicate that the act in itself is wiped away. Justice B. Trivedi alternatively considered the intention of the legislature and the effect of substitution, vis – a – vis the authority of the executive to investigate offences to deduce the same.

Conclusion
It is imperative that courts provide a clear and consistent interpretation of Section 13 to ensure effective enforcement of the PC Act, considering its intricate association with the transparency & accountability of public servants in the criminal justice system. The pronouncement made by the Supreme Court seems to be instrumental in settling the disputes that have arisen since the amendment was first made, thereby restoring the faith of the communal in the Indian bureaucratic structure & its commitment to discipline offenders.

End-Notes:

1. The Prevention of Corruption Act, 1988.
2. The Prevention of Corruption (Amendment) Act, 2018.
3. Rattan Lal v. State of Punjab, 1964 SCC OnLine 40.
4. Shree Sidhbali Steels Ltd. v. State of U.P., (2011) 3 SCC 193.
5. Rayala Corpn. (P) Ltd. v. Director of Enforcement, (1969) 2 SCC 412.
6. Excise Commr. v. Esthappan Cherian, (2021) 10 SCC 210.
7. K.R. Ramesh v. Central Bureau of Investigation, 2020 SCC OnLine Ker 2529.
8. Nara Chandrababu Naidu v. State of A.P., 2024 SCC OnLine SC 47.