Institute of Legal and Management Studies

The Supreme Court today(August 5) extensively heard arguments on a writ petition challenging the constitutionality of some latest amendments in the Prevention of Corruption Act, 1988("PC Act"), introduced in 2018.

A bench comprising Justice BV Nagarathna and Justice KV Viswanathan heard a writ petition filed by the Centre for Public Interest Litigation, which is represented by Advocate Prashant Bhushan.

During the arguments, several issues were raised orally, such as what materials/factors are considered while granting a sanction to prosecute a public servant. Secondly, what are the safeguards in the legislation to protect honest officers who are not involved in the corrupt practices to prevent "policy paralysis". The Court orally remarked that the issues raised in the writ petition are more towards the realm of implementation of the provisions rather than the constitutionality part of it.

At the outset, Bhushan raised two contentions. First, on the newly introduced Section 17A, which provides that no investigation/inquiry/enquiry can be initiated by a police officer against any public servant in relation to the decision/recommendation made in discharge of his duty/functions without prior approval of the competent authority (Central/State Government).

Another challenge mentioned by Bhushan is the deletion of Section 13(1)(d)(ii), which made it an offence if a public servant abused his position to obtain for himself or any other person any valuable thing or pecuniary advantage.

On the first issue, he argued that in Vineet Narain's judgment, the validity of a single directive issued by the Government to the CBI, which required prior sanction of the designated authority, before initiating investigation against Government officers, PSUs, etc, was struck down. Bhushan stated that this requirement was reinstated in the Central Vigilance Commissioner Act, 2003. However, again, it was struck down in the Dr. Subramaniam Swamy case (2014).

Justice Nagarathna responded that it is not necessary that all decisions/recommendations of a public servant would amount to corruption. However, Bhushan argued that corruption is almost always done in relation to the decision/recommendation made in an official capacity.

Justice Viswanathan also voiced concern, stating that if there is no screening by the Government when allegations of corruption are made against a public servant, and if there is a registration of a first information report, it could lead to tremendous stigma. He said: "If you are objecting to the very screening..the reason why I am asking, Secretaries take a lot of decisions, some of which are taken in urgent situations...If there is no screening, an FIR by itself can cause tremendous stigma. That's the reality of the situation..On one line of the spectrum, where there are honest bureaucrats acting in the interest of the country.. there is a book called 'Journeys Through Babudom and Netaland: Governance in India' by T.S.R. Subramanian, where he says, he brought gold for India when there was an acute shortage, and they said, if you brought it later, it would be cheaper and an FIR was registered...There is fear among the bureaucrats who are honest, that look policy decisions falling short of criminality and is being abused..."

Justice Nagarathna also stated that if the objection is that it can't be left to the Government to give sanctions, it is in the "realm of implementation". She said: "If you find in the realm of the implementation, some prejudice or inaction, that is a matter that can be challenged, and the law will take its course. Merely because in implementation, a grievance according to you may arise, can you say the provision is bad?"

Bhushan responded that there is an inherent conflict of interest in this matter because the competent authority, which has to give previous approval for investigation, are members of executive only who may actually be involved in the decision-making which is sought to be investigated.

He said: "It is not correct to believe or think that only highest people in the Government, who may themselves be involved in the crime, for example if a Secretary takes a decision to give 2G/3G spectrum on first cum first-served basis, that decision is usually taken at the behest of the Minister.Therefore, one problem is conflict of interest that there is often a conflict of interest on whether the government should give sanctions even for investigation because the person who will be granting a sanction may be the person often involved in decision making especially when it comes to high-level officials."

Justice Nagarathna asked: "What about decisions taken day in and day out by the concerned officer in the course of discharge of duty. You can't say every decisions are tainted. There are honest officers also. There can't be a Damocles sword on the officers that if you take a decision/recommendation, there will be a police officer who is going to investigation. Honest officers have to be protested also."

Bhushan responded that there are already existing safeguards under the PC Act, such as Section 17, which provides that only a certain level officer can investigate into the allegations. Another safeguard is Section 19, which provides that no Court can take cognisance unless there is a sanction for prosecution from the competent authority. He suggested that additionally, another safeguard could be borrowed from the Lalita Kumari judgment, which is that a preliminary inquiry should be conducted and that the report of the same should be presented to either a local Court or Lokpal to initiate an investigation. But it can't be left to the Government.

Justice Nagarathna again reiterated that it is within the implementation. She said: "Ultimately, balance has to be struck; officers have to be protected from frivolous/vexatious complaints. Dishonest officers need not be protected...Honest officers are being made vulnerable because of vexatious complaints, they will not function at all. Then you will have policy paralysis. Dishonest officers are being protected by not giving approval sanction, but this is within the realm of policy...We should not go with an approach that every officer is honest and officer is dishonest."

She then asked if an executive makes a promise before the election and fails to fulfil it, would that amount to corruption? She said: "The political executive is there to ensure policy decision is being implemented. They would have made electoral promises, they want those promises to be implemented... You can't say if any for the implementation any decision or recommendation is made, you can't say its corruption."

Justice Viswanathan asked if, instead of throwing baby out of water, a guarantee of independence be read within the provisions to protect honest safeguard.

Solicitor General Tushar Mehta briefly argued. He stated that all decisions, including approval and grant of sanction for prosecution is amenable to Court's scrutiny. Justice Viswanathan had asked SG Mehta what materials the Government consider when granting sanction.

Case Details: CENTRE FOR PUBLIC INTEREST LITIGATION v UNION OF INDIA|W.P.(C) No. 1373/2018