Should corruption charges need prior sanction? | Explained

The story so far: A two-judge Bench of the Supreme Court has delivered a split verdict on the constitutional validity of Section 17A of the Prevention of Corruption Act, 1988 (PCA, 1988) that requires prior approval from the appropriate government before investigation into any offence alleged to have been committed by a public servant in discharge of official functions.

What is the PCA, 1988?

The Central government had constituted a committee on prevention of corruption under the chairmanship of K. Santhanam in 1962. The Santhanam committee submitted its report in 1964. It resulted in the strengthening of laws dealing with bribery and criminal misconduct. Finally, a comprehensive act was enacted to consolidate the law relating to prevention of corruption in the form of PCA, 1988.

The PCA, 1988 provides for punishment with respect to offences committed by public servants while performing public duties. ‘Public servant’ includes any government or local authority employee, any Judge, any person who holds an office by virtue of which he is required to perform a public duty etc. ‘Public duty’ means a duty in the discharge of which the government, the public or the community at large has an interest. The type of offences punishable under the PCA, 1988 include bribery, undue advantage without consideration, criminal misconduct etc.

What is Section 17A?

Section 19 of the PCA, 1988 requires prior sanction from the appropriate government before prosecution of a public servant in a court of law. However, it was felt that there needs to be a distinction in dealing between intentional corruption and decisions taken in good-faith that could potentially go wrong. Officers become reluctant to take bold and timely decisions because of fear of wrongful prosecution. In order to address this issue, the Parliament inserted Section 17A through an amendment of the PCA in the year 2018.

This section requires prior approval from the appropriate government for initiating an inquiry or investigation into any alleged offence committed by a public servant which is relatable to any recommendation made or decision taken by a public servant in discharge of official function or duties.

What were earlier rulings?

In Vineet Narain versus Union of India (1998), the Supreme Court struck down an executive order, referred to as ‘Single Directive’, issued to the Central Bureau of Investigation (CBI), that required prior sanction of the designated authority before initiating investigation against certain categories of public servants. Subsequently, in 2003, Parliament amended the Delhi Special Police Establishment Act (DSPE Act), that governs the functioning of the CBI. Section 6A was added to this Act that required prior approval of the Central government to initiate any investigation against officers at the rank of Joint Secretary or above. This was also struck down by the SC in Dr Subramaniam Swamy versus Director, CBI (2014) as violative of Article 14 of the Constitution that guarantees equality before law.

What is the current split verdict?

The current verdict of a division Bench of the Supreme Court is on a Public Interest Litigation (PIL) filed by the Centre for Public Interest Litigation (CPIL) against the Union of India. Justice K. V. Viswanathan held that the requirement of obtaining prior approval before initiating investigation was necessary in order to protect honest officers from vexatious and frivolous complaints. His judgment cautioned that a ‘play-it-safe syndrome’ may set in the bureaucracy if such a protection was not available. However, he held that the constitutional validity of Section 17A would be sustained only if the approval is provided by an independent agency and not by the government itself. His order read Section 17A in conjunction with Lokpal and Lokayuktas Act, 2013 and held that the approval should be provided by the appropriate government based on a binding opinion given by Lokpal and Lokayuktas in respect of Central and State government employees respectively.

Justice B. V. Nagarathna on the other hand held that Section 17A was unconstitutional and tantamount to ‘Old wine in new bottle’ that was struck down in earlier cases by the court. She held that Article 14 requires intelligible differentia and rational nexus to the legislative object, and that Section 17A fails on both counts. She held that adequate protection for honest officers in the form of prior sanction from the government before prosecution by a court is already available under Section 19 of the PCA.

This matter will now be heard by a larger Bench for a conclusive decision. Meanwhile, there are two systemic reforms that are warranted. First, there must be swift disposal of cases and handing over punishments for guilty public servants that would act as a deterrent against corruption. Second, penalty may be imposed for false and malicious complaints. This would act as a deterrent against habitual and vexatious complaints.

Rangarajan. R is a former IAS officer and author of ‘Courseware on Polity Simplified.’ He currently trains at Officers IAS academy. Views expressed are personal.