Is 'Nepotism' An Offence Under Prevention Of Corruption Act? Delhi High Court Stays Proceedings Against DCW Chairperson Swati Maliwal

The Delhi High Court on Friday stayed till July 26 the proceedings initiated against Chairperson of Delhi Commission for Women (DCW) Swati Maliwal over corruption allegations for allegedly abusing the official position by illegally appointing various acquaintances, including Aam Aadmi Party (AAP) workers, in the women rights body between August 6, 2015 to August 1, 2016.

Justice Anup Jairam Bhambhani said prima facie the essential ingredient of offence under Section 13(1)(d)(2) of the Prevention of Corruption Act, namely 'obtaining of any valuable thing or pecuniary advantage' is missing from the chargesheet, order on charge against Maliwal; which accordingly requires closer consideration. Thus, he stayed the trial court proceedings till next date, i.e., July 26.

The bench was hearing Maliwal's plea against a trial court order framing corruption charges.

Justice Bhambhani asked whether "nepotism" is an offence under the Prevention of Corruption Act. This was after Maliwal's counsel Senior Advocate Rebecca John submitted that there is no allegation in the chargesheet that Maliwal received any valuable thing or pecuniary advantage in lieu of appointments under the scanner.

"Section 13(1)(d)(2) has two broad elements- 'abuse of position' for 'pecuniary advantage'. Now, even nepotism could be abuse. But what about (element of) pecuniary advantage? Is there any such allegation? Mere abuse of a position, is that an offence under PCA?" the bench asked Standing Counsel Sanjay Lao.

The respondents have been asked to file a status report in 6 weeks.

John submitted that merely because some appointees have previously worked with Maliwal, does not mean they are close. Moreover, nothing is on record to show that Maliwal benefitted from such appointments. She argued that only competent persons with relevant experience were appointed on "short term" basis to meet the emergent situations. She submitted that the DCW is the creation of a statute and is an autonomous body. In this regard, she relied on notings of the Finance Department as per which administrative and financial powers will be exercised by Member Secretary of DCW. This would include making appointments, without approval from Delhi govt, John argued. She added that even the audit and annual reports of DCW are placed before the legislative body for approval.

John submitted that even as per the DCW Act, the Commission may appoint committees for dealing with special issues and co-opt such number of persons as it may deem fit. Such persons will be granted allowances, as prescribed. In this case, she pointed it is not even the case of prosecution that the persons appointed, allegedly close to Maliwal, received remunerations without working. "I can understand that if the case was they obtained salary without a dot of work. It's not that they were sitting at home, doing nothing, receiving cheques. These are qualified people. Lawyers with long standing who monitor rape cases," she said.

One of the appointees had contested elections for AAP. In this regard John argued merely because a person is a member of a political party, appointing him/her is not a criminal misconduct. "Everybody has connections...Tomorrow they’ll say you voted for a party so you’re connected...Members of ruling part are being appointed to various boards and PSUs."

John further submitted that the complainant is the previous chairperson of DCW, associated with a different political party. Thus, the complaint is malafide.

John further argued that no rules or procedure were violated in making the alleged appointments. Even if it is assumed that there were violations, she submitted there are precedents which say it may lead to departmental inquiry but not criminal action.

In December last year, a trial court observed that a "strong suspicion" arise against Maliwal, and three others namely Promila Gupta, Sarika Chaudhary and Farheen Malick, adding that the facts disclose "prima facie sufficient material" to frame charges against them.

The court had framed charges against them for criminal conspiracy under section 120B of Indian Penal Code and for other offences under sections 13(1)(d), 13(1)(2) and 13(2) of Prevention or Corruption Act.

It had said that merely because DCW had been pursuing the Delhi Government to fill up the vacant posts, which was not timely complied with by the State, did not give any right to the women rights body to make arbitrary appointments.

It was alleged by the prosecution that AAP workers and acquaintances were appointed to different posts of DCW without following the due process. It has alleged that legitimate right of deserving candidates was violated "to favour a particular class of persons."

The prosecution had claimed that 87 appointments were made in DCW between August 6, 2015 to August 1, 2016, out of which 71 persons were appointed on contractual basis and 16 persons were appointed for 'Dial 181'. During investigation, out of the 87 persons appointees, at least 20 persons were directly found to be associated with AAP.

The case was registered after a complaint was filed by BJP leader Barkha Shukla Singh, the former chairperson of DCW, with the Anti Corruption Branch (ACB) in 2016. On the basis of the said complaint, a preliminary inquiry was initially conducted and later FIR was registered. 

Case Title: Swati Maliwal v. State

Citation: 2023 LiveLaw (Del) 220