Section 7A: Taking an Undue Advantage to Influence a Public Servant

Section 7A, inserted in 2018, reaches the person who is not himself a public servant but who takes money to procure a result from one. It punishes whoever accepts or attempts to obtain an undue advantage from another person as a motive or reward to induce a public servant, by corrupt or illegal means or by the exercise of personal influence, to perform or to forbear from performing a public duty improperly or dishonestly. It replaces and combines the old Sections 8 and 9, and it is the provision under which the middleman, the fixer and the influence peddler are prosecuted.

1. The Ingredients

1. Any person. The accused need not be a public servant, and in the typical case he is not. A public servant who does the same thing is also within the section, and may additionally be within Section 7 in respect of his own duties.
2. Acceptance or attempt to obtain an undue advantage from another person, being the client who wants the result.
3. As a motive or reward to induce a public servant. The advantage must be connected with procuring action from an identified or identifiable public servant.
4. By corrupt or illegal means, or by the exercise of personal influence. These are the two alternative methods, and one of them must be alleged and proved.
5. To perform, or to forbear from performing, a public duty improperly or dishonestly. The object of the inducement is the same improper performance that Section 7 speaks of.

The punishment is imprisonment of not less than three years, extending to seven years, and fine, which is the same as under Section 7.

2. The Two Methods

• Corrupt or illegal means. The middleman proposes to procure the result by passing part of the money to the public servant, by threatening him, by producing a false document, or by any other unlawful method. The essence is that the route by which the result is to be obtained is itself unlawful.
• Exercise of personal influence. No unlawful method is proposed; the middleman relies on his relationship with the public servant, his standing, or his access. The section treats this as equally objectionable where the object is improper or dishonest performance, because the decision is then procured by a consideration extraneous to the merits.

3. Section 7 and Section 7A Compared

4. Section 7A and Abetment

Section 12, as substituted in 2018, punishes abetment of any offence punishable under the Act. The two provisions overlap and are not the same, and the difference should be stated carefully.

1. Abetment is derivative; Section 7A is not. An abettor is punished for instigating or aiding the offence of another, and the abetted offence must at least be attempted, though Section 12 expressly provides that the offence is punishable whether or not it is committed in consequence of the abetment. Section 7A creates a free-standing offence complete on the middleman's acceptance of the advantage, regardless of what the public servant does.
2. The middleman may have no contact with the official at all. A person who takes money claiming an ability to influence, and keeps it, is within Section 7A; whether he is an abettor depends on whether he did anything to instigate or aid the public servant.
3. The identified official. Abetment requires an offence by a public servant to which the abetment relates; Section 7A requires the object of inducing a public servant, which may be proved without establishing an offence by that official.
4. In practice both are charged, together with criminal conspiracy under the general penal law where the arrangement involved several persons.

5. Lobbying and Illegitimate Influence

There is no Indian statute regulating lobbying, and the line between legitimate advocacy and the offence under Section 7A has to be drawn from the section itself. Four questions separate them.

• What is the object? Presenting a case, supplying information or urging a particular policy is not within the section; procuring improper or dishonest performance is.
• What is the method? Argument, representation and published advocacy are lawful; corrupt or illegal means are not, and the exercise of personal influence is within the section only where it is directed at improper performance.
• Is the advantage connected with the outcome? A professional fee for preparing and presenting a case is not an undue advantage; a payment contingent on obtaining a favourable decision by influence is evidence that the object was not persuasion on the merits.
• Is the process transparent? A representation made on the record, to which the other side and the public have access, is very different from an approach made privately to the decision-maker.

6. Actual Influence and Attempt

The offence is complete on acceptance of the undue advantage, or on an attempt to obtain it. It is therefore immaterial whether the middleman ever approached the public servant, whether the public servant was influenced, whether the decision went the way the client wanted, or even whether the middleman had any real ability to influence anyone. A person who takes money on a false claim of influence commits the offence, and may in addition be guilty of cheating under the general penal law. The consequence for the prosecution is that its case turns on proving the acceptance and the representation that accompanied it, which is ordinarily done through the client, the record of the payment and any communication in which the promise was made.

7. Related Topics and Provisions