New Delhi, Jan 13 (PTI) The Supreme Court on Tuesday delivered a split verdict on the constitutional validity of a 2018 provision of the anti-graft law which mandates prior sanction for initiating a probe
against a government servant in a corruption case.
While Justice B V Nagarathna said Section 17A of the Prevention of Corruption Act is unconstitutional and needs to be struck down, Justice K V Viswanathan held the provision as constitutional while adding that sanction must be decided by an independent authority like the Lokpal or the Lokayukta.
Section 17A of the Prevention of Corruption Act, 1988, introduced in July 2018, bars any “enquiry or inquiry or investigation” against a public servant for recommendations made in discharge of official duties without prior approval from the competent authority.
The case will now be placed before Chief Justice of India Surya Kant for forming a larger bench to hear the matter for a final decision.
"Having regard to the divergent opinions expressed by us, we direct the Registry to place this matter before the Chief Justice of India for constituting an appropriate bench to consider the issues which arise in this matter afresh," the bench said.
The top court's judgement came on a PIL filed by NGO 'Centre for Public Interest Litigation' (CPIL) against the validity of amended section 17A of the Prevention of Corruption Act.
In her 147-page separate verdict, Justice Nagarathna said requirement of prior sanction is contrary to the Prevention of Corruption Act as it forecloses inquiry and protects corrupt.
Observing the provision is arbitrary as there are inherent deficiencies in the working of Section 17A of the Act, Justice Nagarathna said there should have been an independent body which is not controlled by the government to consider a case for grant of prior approval to conduct an inquiry/enquiry/investigation by a police officer.
The judge opined that section 17A of the Act is, in fact, grants 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 wrote.
Justice Nagarathna said section 17A protects the public servants who are in fact offenders under the provisions of the Act.
"Section 17A of the Act is struck down as it is in violation of Article 14 of the Constitution inasmuch as it seeks to protect only those public servants who have the responsibility of making a recommendation or taking a decision in the discharge of their official duties which are limited to the officers above a particular level whether in the Union or state governments or any other authority," Justice Nagarathna said.
Writing his 124-page judgement, Justice Viswanathan said striking down section 17A will be akin to throwing the baby out with the bath water and the “cure will be worse than the disease”.
"If honest public servants are not given a basic assurance that decisions taken by them will not be subjected to frivolous complaints, it is the nation that will suffer. Public servants will resort to a play it safe syndrome and that will result in policy paralysis. The panacea of striking down will turn out to be worse than the disease," Justice Viswanathan said.
The top court judge held that the object of incorporating Section 17A of the Act was not to condone official acts done for improper purposes or for extraneous considerations but to protect bona fide recommendations and decisions taken by officials and bureaucrats.
"With the extent of public gaze prevalent today, propelled by social media, arrest and the consequential parading in court of a honest person itself causes incalculable harm to the fair name and goodwill of the individual and the family.
"Even a subsequent exoneration in the investigation cannot redeem the permanent damage done to the integrity and reputation of the individual," he said.
Justice Viswanathan held that a fine balance has to be maintained between the need to protect a public servant against mala fide prosecution and the object of upholding the probity in public life in prosecuting him against whom prima facie material exists.
"Section 17A of the Prevention of Corruption Act, 1988 inserted by virtue of Section 12 of the Prevention of Corruption (Amendment) Act, 2018 is constitutionally valid, subject to the condition that grant or refusal of the approval by the competent authority mentioned therein will depend on the recommendation of the Lokpal/Lokayukta (in case of states) respectively in accordance with the reasoning set out in the body of the judgment," the judge said.
The judge said the Centre, state governments and the competent authorities will, on receipt of the information under Section 17A, immediately forward the information to the Lokpal/Lokayukta and they may have an inquiry on the information in accordance with the provisions of the Lokpal/Lokayukta statutes and forward it to the appropriate authority. PTI PKS PKS KVK
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