Supreme Court’s Split Verdict on Prior Approval for Corruption Investigations
Context
Recently, a Division Bench of the Supreme Court delivered a split verdict on the constitutional validity of Section 17A of the Prevention of Corruption Act, 1988, which mandates prior approval before investigating public servants.
Background of India’s Anti-Corruption Framework
Origins (Committee-Based Reform):
In 1962, the Union Government constituted a Committee on Prevention of Corruption chaired by K. Santhanam, which submitted its report in 1964.
Core Recommendations:
Strengthening anti-bribery provisions, creating institutional vigilance mechanisms, and ensuring higher accountability of public officials.
Legislative Consolidation:
These recommendations led to the enactment of the Prevention of Corruption Act, 1988, consolidating earlier anti-corruption laws.
Objective of the Act:
To penalise corruption-related offences committed by public servants during the discharge of official duties.
Definition of Public Servant:
Includes government and local authority employees, judges, and persons entrusted with public responsibilities.
Public Duty Explained:
Any function in which the State, the public, or the community at large has a direct interest.
Offences Covered:
Bribery, illegal gratification, abuse of official position, criminal misconduct, and possession of disproportionate assets.
Section 17A: Rationale and Legal Design
Existing Protection (Section 19):
Requires prior government sanction before a public servant can be prosecuted in a court of law.
Administrative Challenge:
Absence of differentiation between mala fide corruption and bona fide decision-making led to risk-averse governance.
2018 Legislative Amendment:
To address this concern, Section 17A was inserted into the PCA.
Core Requirement:
Prior approval of the appropriate government is mandatory before initiating any inquiry or investigation.
Applicability:
Limited to allegations arising from official decisions or recommendations taken in the course of duty.
Judicial Precedents on Prior Sanction
Vineet Narain Case (1998):
The Supreme Court invalidated the executive “Single Directive” requiring prior approval before investigation.
DSPE Act Amendment (2003):
Insertion of Section 6A mandating prior approval to investigate senior officers.
Subramanian Swamy Judgment (2014):
Section 6A was struck down as violative of Article 14, reaffirming equality before law in corruption investigations.
Present Case and Divergent Judicial Views
Petitioner:
A Public Interest Litigation filed by the Centre for Public Interest Litigation (CPIL).
Key Constitutional Question:
Whether Section 17A creates an unconstitutional barrier to investigation of public servants.
Judicial Outcome:
The disagreement between the two judges resulted in a reference to a larger Bench.
View of Justice K. V. Viswanathan
Holding:
Section 17A is constitutionally valid, subject to institutional safeguards.
Reasoning:
Prior approval protects honest officials from harassment through frivolous or motivated complaints.
Governance Impact:
Absence of protection may lead to excessive caution and delayed decision-making.
Safeguard Proposed:
Approval must not be politically influenced.
Institutional Mechanism:
Government approval should be based on a binding opinion of:
- Lokpal (for Central government officials)
- Lokayuktas (for State government officials)
View of Justice B. V. Nagarathna
Holding:
Section 17A is unconstitutional.
Constitutional Reasoning:
Fails the Article 14 test of reasonable classification and rational nexus.
Redundancy Argument:
Existing protection under Section 19 is sufficient, rendering Section 17A excessive.
Judicial Concern:
Provision effectively reintroduces safeguards earlier struck down by the Court.
Way Ahead
Speedy Resolution of Cases:
Time-bound investigation and trial of corruption cases are essential for effective deterrence.
Curbing Abuse of Process:
Imposition of penalties for false and malicious complaints can balance accountability with officer protection.
Source : The Hindu