The Prevention of Corruption Act 1988 (PC Act 1988) was amended by The Prevention of Corruption (Amendment) Act 2018 (Amendment Act of 2018) vide which the amendment to section 13 of the PC Act 1988 was introduced by substituting the text of Section 13(1) with a new definition for the offence of criminal misconduct. The amendment has taken away the rigour of criminal law by incorporating the guilty intention as a necessary ingredient to attract the offence of criminal misconduct as defined under section 13 of the PC Act 1988 as amended by the Amendment Act of 2018. The Statement of Objects and Reasons to The Prevention of Corruption Amendment Bill 2013 mentions that changes proposed to the aforesaid Act has been necessitated due to ratification of the United Nations Convention Against Corruption (UNCAC) in May, 2011 by our country; and Judicial pronouncements in corruption cases to fill in gaps in description and coverage of offence of bribery so as to bring it in line with the current international practice.
MISUSE OF PROVISION BY THE INVESTIGATING AGENCIES : MISCHIEF PREVAILED IN COUNTRY
HOW THE RIGOUR OF SECTION 13(1) IS MOLLIFIED
Under the un-amended law guilty intention of the public servant was not required to be proved for the offence of criminal misconduct , However under the ex-post facto law mens rea or guilty intention of on the part of public servant is a sine qua non for attracting the offence of criminal misconduct under section 13(1) PC Act 1988 as amended by the Amendment Act of 2018.
The additional requirement of proving guilty intention is the benefit which can be extended to the earlier cases. What is prohibited under Article 20(1) of the constitution is the retrospective operation of an ex-post facto law which brings a new offence or enhances the punishment for an offence. What is not prohibited under Article 20(1) is the retrospective operation of the ex-post facto law which mitigates the rigor of criminal law. A rigor of law would include the sentencing structure , standards or ingredients of definition of offence , or any other factor responsible for strictness of criminal law. For example the benefit of probation under The Probation of Offenders Act 1958 is not applicable to the offences under P C 1988 which enhances its rigor as compared to the offences wherein the benefit of probation can be granted.
AMENDMENTS THAT MOLLIFIES THE RIGOR OF CRIMINAL LAW CAN BE APPLIED IN EARLIER CASES.
EFFECT OF SUBSTITUTION
Another ground why the amendment in section 13(1) of PC Act 1988 can be applied retrospectively is that the amendment in Section 13(1) is by way of substitution. The legislature while making a amending legislation had advisedly used the word "substitution" in place of the word "addition" or "insertion". The object and purport of the subsequent amendment by the legislature was, thus, to grant the same benefit (benefit of guilty intention) which has been introduced by the amendment, to the public servants facing prosecution without there being any allegation of quid pro quo against them.
APPLICATION OF SECTION 6 GENERAL CLAUSES ACT, 1897 IS EXCLUDED
The different intention to exclude the application of section 6 of General Clauses Act is incorporated in the expression substitution itself especially when the reports of standing committee and select committee manifest that the intention of parliament was to destroy the provision of section 13(1)(d)(iii) PC Act 1988 (as it then existed) to protect the honest public servants against the frivolous prosecutions and also to remove apprehensions and fears in the mind of public servant. Further there is no saving clause to save the proceedings under the earlier law.
The issue whether the benefit of amendment in section 13 of the PC Act 1988 as amended by the Amendment Act of 2018 is receiving consideration before the Hon'ble High Court of Delhi. Even if the Amendment in Section 13 (1) of the PC Act 1988 is held to be prospective, still in view of the law laid down by the Supreme Court the benefit of amendment (i.e proof of guilty intention) should not be denied to the public servants facing the rigour of trial/prosecution without there being any allegation of quid pro quo. In cases, registered under section 13(1)d (as it then existed), wherein there is no allegation of quid pro quo or demand by the public servant the proceedings should be quashed qua section 13(1)d.
Anuj Chauhan Is A Delhi Based Advocate.The author's views are personal.
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