Prior Sanction in Cases of Corruption

Introduction- Recently, two-judge Bench of the Supreme Court of India, comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan, delivered a split verdict

on the challenge to the constitutional validity of Section 17A of the Prevention of Corruption (PC) Act, 1988, in the Centre for Public Interest Litigation (CPIL) vs Union of India.

What is Section 17A of the Prevention of Corruption (PC) Act, 1988?

Section 17A effectively provided that no police officer would conduct any inquiry or investigation into any offence alleged to have been committed by a public servant regarding any recommendation made or decision taken in the discharge of official functions, without the prior sanction of the appropriate government.

What are the arguments in favour of Section 17A of the PCA 1988?

1. Protection of Honest Public Servants- Section 17A safeguards bona fide decision-making by honest officers. Public servants often take complex policy or administrative decisions involving discretion.

• Without protection, they may be subjected to vexatious or motivated complaints merely because a decision displeased someone.

2. Prevents Harassment and Witch-Hunting- Before Section 17A, investigations could be initiated at the mere registration of an FIR, leading to harassment even when no prima facie case existed. The requirement of prior approval acts as a filter against frivolous or malicious investigations.
3. Encourages Fearless and Efficient Administration- The provision reduces “decision-making paralysis”. Fear of investigation had made officers risk-averse, leading to delays and administrative inertia.

• Section 17A encourages officials to take timely and bold decisions in public interest without fear of retrospective scrutiny.

4. Balances Anti-Corruption with Administrative Fairness- While combating corruption is essential, unchecked investigative power can itself become oppressive. Section 17A strikes a balance by ensuring that only cases with prima facie merit proceed to investigation.
5. Upholds Constitutional Values- The provision aligns with Article 14 and Article 21, protecting public servants from arbitrary state action and ensuring procedural fairness. It also respects the separation of powers, preventing investigative agencies from encroaching into executive decision-making without oversight.

What are the arguments against Section 17A of the PCA 1988?

1. Chances of rise in collusive corruption cases- Corruption is anathema to rule of law. Vesting the government with the power to stall corruption investigations (where it may have a vested interest) would allow corruption to go uninvestigated and unchecked.
2. Encroachment of Domain Investigative agencies- SC in the Vineet Narain vs Union of India, held that the final opinion whether to investigate or not has to be made by the CBI. The executive on its own cannot foreclose inquiry into any allegation of corruption as that would be entering the domain of the investigative agency.
3. Existence of Criminal Nexus that breeds corruption- N.N. Vohra Committee (1993) presented the frightening criminal nexus between highly-placed politicians, high-ranking bureaucrats, and criminal elements.
4. Insulation of investigative agencies- The Supreme Court has held that equality before the law under Article 14 and the rule of law itself could only be preserved if investigative agencies are insulated from political, executive and bureaucratic interference.
5. Contrary to the supreme court judgment- Section 17A runs contrary to the dictum in Lalita Kumari vs Government of Uttar Pradesh & Ors(2014), which mandated registration of a first information report and consequent investigation on the disclosure of a cognisable offence.

Where did the Judges differ on Section 17A, PCA 1988?

I. Opinion of Justice B.V. Nagarathna (Holding Section 17A Unconstitutional)

1. Contrary to the Object of the PCA- Section 17A undermines the core objective of the Prevention of Corruption Act. The requirement of prior sanction forestalls inquiry at the threshold, thereby substantively protecting corrupt public servants.
2. Revival of Impermissible Protection- The provision revives protections earlier struck down in Vineet Narain v. Union of India and Subramaniam Swamy v. Manmohan Singh. It creates a protected class of public servants, which is constitutionally impermissible.
3. Conflict of Interest- The sanctioning authority is part of the same government or department as the officer under investigation. Ministers and officers may share a meeting of minds regarding impugned decisions, some of which may amount to corruption.
4. Institutional Bias and Lack of Neutrality- Officials tasked with granting sanction may suffer from policy bias. They lack neutrality when assessing investigations into decisions taken within their own departments.
5. Impediment to Anti-Corruption Investigations- Section 17A may impede or block investigations against corrupt officials. Instead of accountability, corrupt officers may receive institutional protection, enabling unchecked corruption.
6. Opinion of Justice K.V. Viswanathan (Conditional Constitutional Validity)
7. Agreement on Core Concern- Justice Viswanathan agreed that vesting the power of approval solely with the government renders the provision unconstitutional.
8. Validity of Prior Sanction in Principle- He found no constitutional infirmity in the requirement of prior sanction per se. The defect lies in who grants the sanction, not in the concept of prior approval itself.
9. Need for an Independent Sanctioning Authority- The grant or refusal of approval should rest with an independent body, not the government. Such approval should precede the government’s decision.
10. Avoidance of Policy Paralysis- Striking down Section 17A entirely could lead to policy paralysis. Honest public servants need insulation from frivolous and mala fide investigations.
11. Role of the Lokpal- The Lokpal, as an independent anti-corruption authority, is best suited to perform this screening function. Its recommendations should be binding on the government.

Conclusion

Both judges agree that Section 17A would be unconstitutional if- The power to grant sanction for investigation remains with the government itself, due to risk of bias and executive control.

One judge holds that Prior approval is not inherently unconstitutional if an independent body (such as the Lokpal) grants approval. The other judge holds the prior approval itself as unconstitutional. Due to the unresolved constitutional disagreement, the matter has been referred to the Chief Justice of India and a larger Bench will be constituted to decide the issue conclusively

Question for Practice

“Section 17A of the Prevention of Corruption Act, 1988 seeks to protect honest decision-making by public servants, but has been criticised for weakening the anti-corruption framework.” Critically examine the constitutional validity and practical implications of Section 17A.

Source- The Hindu