Supreme Court delivers split verdict on prior approval clause in anti-graft law

The judge said that “the object of preventing frivolous and vexatious complaints against honest public servants is sub-served by Section 17A,” and “the only aspect missing expressly from the statute is the provision for an independent screening mechanism.”

The Supreme Court Monday delivered a split verdict on the Constitutional validity of Section 17A of the Prevention of Corruption Act, 1988, which mandates prior approval by the competent authority for investigating public servants in the discharge of their official functions and duties.

Presiding over a two-judge bench, Justice B V Nagarathna held the section as “unconstitutional”, and one that “protects the corrupt”. The other judge, Justice K V Viswanathan, said it “is Constitutionally valid, subject to the condition that grant or refusal of the approval by the competent authority… will depend on the recommendation of the Lokpal/ Lokayukta…”. After the split verdict, the matter was directed to be placed before the CJI for reference to an appropriate bench to decide afresh.

The controversial provision was introduced in the Act through an amendment in 2018 and was challenged before the top court by the NGO Centre for Public Interest Litigation (CPIL).

Justice Nagarathna expressed the view that “Section 17A of the Act is to grant protection to corrupt public servants”. “If an enquiry or investigation is to be made against a public servant lacking integrity, then the requirement of seeking a prior approval would, in fact, be a hurdle for carrying out any such investigation and consequently, any act which is an offence within the meaning of the Act would be covered up and would remain under wraps,” she said.

“…if approval is not granted to even make a preliminary enquiry, the truth and genuineness of the complaint would not be known and the matter would be hanging in suspense. In the absence of there being any threshold enquiry on the genuineness of the complaint, greater damage and harm would be caused to the reputation of a public servant who is sincere and honest,” she said. On the argument that the provision’s objective was to help public servants take decisions without fear and avoid “policy paralysis,” Justice Nagarathna said. “…Section 17A would embolden public servants to make vitiated recommendations or take mala fide decisions which would be offences under the provisions of the Act, simply because prior to any inquiry or investigation being made by a police officer, approval has to be taken.”

“…in my view, the requirement of prior approval… is contrary to the object and purpose of the Act, inasmuch as it forestalls an enquiry and thereby in substance protects the corrupt rather than seeking to protect the honest and those with integrity, who really do not require any such protection.” Justice Nagarathna said though “the protection of prior approval is extended to all classes of public servants in substance, it extends only to those public servants who take decisions and make recommendations in the discharge of their official duties”.

“Such protection is, therefore, extended to the higher officers only. Hence, the provision is once again ‘narrowly tailored’ in order to protect a select class of public servants in respect of whom prior approval has to be taken before a police officer seeks to make an inquiry, enquiry or investigation. This… is in violation of Article 14 of the Constitution as it creates a classification having no nexus to the object sought to be achieved and is therefore not permissible.”

Justice Viswanathan, however, expressed the view that “the object of incorporating Section 17A of the Act was certainly not to condone official acts done for improper purposes or for extraneous considerations. The singular object is to protect bona fide recommendations and decisions taken by officials and bureaucrats.” The judge said that “the object of preventing frivolous and vexatious complaints against honest public servants is sub-served by Section 17A,” and “the only aspect missing expressly from the statute is the provision for an independent screening mechanism.”

For this, he suggested that the complaint be looked into by an “independent agency”. “The Lokpal/ Lokayukta may, if it finds the information frivolous, recommend for reasons to be recorded in writing that the government reject the approval. If the Lokpal finds that the complaint calls for an inquiry it may order an inquiry by the Inquiry Wing,” he said.