Supreme Court hears challenge to Section 17A of the Prevention of Corruption Act, raising concerns over misuse. Justice Nagarathna warns: “It can protect honest officers — or dishonest ones.”
New Delhi: On August 5, the Supreme Court of India heard a very important petition filed by the Centre for Public Interest Litigation (CPIL) challenging the 2018 amendments made to the Prevention of Corruption Act, 1988.
This case is being heard by a bench of Justice B.V. Nagarathna and Justice K.V. Viswanathan. The petitioner is represented by senior advocate Prashant Bhushan, while Solicitor General Tushar Mehta is appearing on behalf of the Union government.
The challenge is mainly against Section 17A (inserted in 2018) and some changes made to Section 13 of the Act.
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The Bench remarked,
“Secretaries take a lot of decisions. Sometimes, the decision has to be taken in an emergency situation. If there is no screening, then an FIR by itself can cause stigma,”
The Court further emphasized that not every government action should automatically be suspected, stating,
“Ultimately, the balance has to be struck. Honest officers must be protected from frivolous or vexatious complaints. Second, dishonest officers need not be protected. So, what is the balance to be struck? If honest officers are made subject to frivolous cases, they will not act at all.”
Section 17A now says that no police officer can start an investigation against a public servant for anything done during their official duty unless they first get approval from the Central or State government.
Prashant Bhushan argued that this section creates a serious obstacle in tackling corruption because it prevents even filing an FIR without government permission.
He said,
“Section 17A restricts police from investigating any offence allegedly committed by a public servant in the course of official duties unless prior approval is obtained from the Central or State government.”
Justice Viswanathan responded that secretaries and officers take many urgent decisions, and even an FIR can create a negative image.
The Court said,
“Section 17A uses the phrase ‘discharge of official duty’ but committing a criminal offence can’t be considered part of one’s official duty.”
Bhushan replied,
“That’s exactly what the investigating officer needs to determine whether the act falls within official duty or not.”
The bench noted that
“Unlike Section 197 Section 17A applies only to recommendations made or decisions taken not all actions.”
Bhushan raised a strong point,
“But what if you are making a decision and also taking a bribe for that very decision?”
He continued,
“Suppose someone takes a decision and also takes a bribe for it we are challenging the part of Section 13 that was removed which earlier covered abuse of authority to benefit someone else even without personal gain. We haven’t challenged the part dealing with personal benefit.”
To this, SG Mehta responded,
“It’s not deleted it’s now included under Section 7.”
Bhushan disagreed and stated,
“But the amended section doesn’t mention abusing position to benefit a third party. It only talks about misappropriation for personal use.”
Justice Nagarathna asked Bhushan,
“You tell us what is your grounds of challenging the constitutional validity?”
Bhushan replied,
“Yes I was trying to tell that but then your lordships put up a mirage of questions so I was trying to answer that first.”
As Bhushan started referring to case laws, Justice Nagarathna reminded the court,
“We should not go with an approach that every officer is honest or dishonest.”
Bhushan said,
“The SC said that CBI is specialised agency who can decide if prima facie the decision is honest or dishonest. The court has said that you cannot arrest a person just because there is an allegation.”
SG Mehta raised a question:
“How much is this in consonance with the ground reality.”
Bhushan replied,
“These agencies relatively independent. It is the executive who is misusing.”
The Court observed,
“A political government is elected to implement certain policies often based on promises made during elections. Fulfilling those promises cannot automatically be labelled as corruption.”
Bhushan stressed the importance of agency independence,
“The only way forward is to ensure CBI’s independence. Many lateral entries are being made into CBI and even into the environment ministry agencies meant to regulate government projects. If the government controls deputations it compromises independence. Courts already have the power to stop investigations or quash FIRs.”
Justice Nagarathna asked,
“But approvals may be denied in some cases and granted easily in others. What’s your solution?”
Bhushan suggested,
“Investigations should be done by senior officers and courts can step in if FIRs are filed with mala fide intent.”
He added,
“We have seen so many cases of the ED particularly 23 out of 25 cases when they joined the ruling party the ED dropped the cases.”
Justice Nagarathna reminded him,
“Let’s stick to public servant.”
Bhushan agreed and said,
“Yes then adequate safeguards need to be put in place. There are so many cases of the ED as well.”
SG Mehta noted,
“The reality is that every decision taken some group will be unsatisfied. My hands will shake if I will take a decision and afterwards someone will go and file a case through NGO. This has been discussed in the parliament.”
The court asked for clarification:
“When you say by Government which authority do you mean?”
SG replied,
“The competent authority whom Parliament has entrusted with the task. This isn’t a question of constitutionality or desirability. The Prevention of Corruption Act applies nationwide. There’s a separation of powers. Based on the rank of the officer involved, a senior officer will assess the case and the final decision is always open to judicial review.”
The Bench questioned further,
“If approval is granted the officer concerned can challenge it. If approval is denied that too can be questioned through a PIL?”
SG replied,
“Yes and a private complaint can also be filed.”
The Court said,
“Parliament’s intent was to safeguard honest officers performing their duties lawfully. Viewed that way, the provision is protective. But if dishonest officers are shielded from action then the issue lies in how it’s implemented.”
Bhushan suggested a solution:
“One possible solution can be showing the result preliminary enquiry to a magistrate or a Lokpal or Lokayukt and they grant the permission to register an FIR. I don’t know if court will be in their power to suggest these but if they can it will be very good. Even in the present statute there are multiple safeguards.”
Justice Nagarathna added,
“A provision cannot be just looked from every perspectives. It can be said that it protects dishonest officers but you can also say that it protects honest officers.”
Bhushan replied,
“They have various other safeguards. Whenever a public servant abuses his authority it is related to some decision or recommendation taken by him.” He added, “Suppose a contract is awarded to a single bidder despite rules against it and it was previously given at half the price. If the officer says ignore the rule and go ahead that’s still a decision in discharge of duty.”
Justice Nagarathna reminded,
“But in emergencies like floods or COVID-19 such decisions can’t automatically be labelled as corrupt. Governance must function.”
Bhushan answered,
“I am not saying there can’t be any exceptions. It depends on the specific facts and context.”
He further submitted,
“Under Article 142 the Court can frame guidelines mandating a preliminary inquiry in corruption cases before seeking FIR sanction from a local court or Lokpal. Leaving this power with the govt is risky. If safeguards for honest officers are needed the Court can lay them down.”
Justice Nagarathna recalled,
“Section 6A was struck down solely because it was discriminatory lacking any intelligible differentia.”
Bhushan added,
“Not just that the judgment also held that Article 14 includes the rule of law and requiring prior sanction for senior officials violates that principle.”
He concluded,
“Corruption is an important aspect of rule of law and thus to uphold rule of law corruption should be fought against. A public servant’s power to do corruption vests in his power to make decisions and giving recommendations or the power he exercises.”
Justice Nagarathna mentioned,
“Disproportionate assets are gained over time.”
Bhushan replied,
“Since it’s the Prevention of Corruption Act every offence under it stems from corruption. For example in a disproportionate assets case the assets are accumulated through corrupt means.”
Justice Nagarathna said,
“Every complaint can’t be opening floodgates. We are not shielding corrupt people but….”
Bhushan responded,
“So let us read what they say.”
He added,
“They are saying even if they give the protection to only decision makers even if it’s is violative of article 14. The issue is whether this amounts to corruption or not. In Vineet Narain they said that CBI should have experts to decide that.”
The Court asked,
“Even if we assume Section 17A is valid how does the government determine if there’s enough material to proceed?”
SG explained,
“The authority simply checks if the act was done in the course of official duty and whether it prima facie indicates an offence it’s a basic threshold check to see if an investigation is warranted.”
The Court noted,
“But extraneous factors may not be obvious the government must have some advisory mechanism in place.”
Bhushan raised a concern,
“The higher officers are unlikely to grant sanction if they are likely to be investigated themselves. In any major case the file travels all the way to the top. Now the decision can be a corrupt decision.”
The Bench pointed out,
“If someone loses a contract due to corruption they are likely to challenge it.”
SG replied,
“In our experience such challenges usually come through NGOs.”
Bhushan shot back,
“That will not address the Corruption.”
The Court said,
“We do not support corrupt officers but if government officials are constantly under threat of prosecution they may become hesitant to act and that would hinder governance.”
Bhushan firmly responded,
“Then in that case we can write off the prevention of corruption act. If we think that no honest officer can ever be investigated. No high level officer will ever be investigated in that case. They might be if the ruling party changes.”
Justice Nagarathna noted, “Even that will be for malicious purposes.” Bhushan added, “Yes it can be.”
As the arguments became heated, Bhushan started reading the Subramanian Swamy judgment. SG Mehta interrupted, “Let me read.”
Bhushan said, “No you can read later.” SG jokingly added, “He is selectively reading.” Bhushan responded,
“I will read what I want to read, you read what you want to.”
Justice Nagarathna said to SG,
“You read in your own time.”
Bhushan clarified that Section 7 does not clearly cover cases where an officer grants unfair advantage to others. He said,
“I have no objection if the lordships think that this covers….”
He also said,
“Bhushan points out that while a denial of prosecution sanction can be contested the refusal to permit an investigation often goes unnoticed by the public.”
He cited international conventions:
“Bhushan takes the court through the UN Convention against corruption which India has ratified and points out how through various judgements SC has said that all the international treaties which are ratified has to be read in the law of the country unless contrary to constitution and law of the land.”
Bhushan concluded his arguments by referring to the Lalita Kumari judgment.
SG Mehta replied,
“We all agree corruption is a serious issue, but the challenge is avoiding policy paralysis. Unlike the earlier Section 6A struck down in Subramanian Swamy, Section 17A is narrowly framed ensuring action against the guilty while protecting honest officers.”
He added,
“There’s a common belief that politicians bureaucrats and even state institutions are corrupt but if we make rules assuming that we’ll get nowhere. Good governance is also part of rule of law. When we have three organs all three connected with rule of law. Independence of judiciary is also a part of rule of law.”
Finally, the Bench asked,
“What material is considered for granting investigation approval? Just the complaint?”
SG clarified,
“The decision complaint and relevant file are reviewed. No finding of guilt is needed only a basic prima facie assessment. The threshold under Section 17A is not high. Approval must come from the authority competent to remove the officer.”
Justice Nagarathna questioned,
“But what if that authority is involved in the decision? Where is the safeguard?”
Justice Viswanathan added,
“That’s the concern the lack of protection when the approving authority may be compromised.”
Case Title:
CENTRE FOR PUBLIC INTEREST LITIGATION Versus UNION OF INDIA W.P.(C) No. 1373/2018
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