Supreme Court To Hear Plea Challenging Section 17A Prevention Of Corruption Act & 2018 PC Act Amendments On Nov 20

The Supreme Court will hear a PIL, on November 20, challenging the constitutionality of the some of the latest amendments in the Prevention of Corruption Act, 1988 (Act) on the ground that they violate fundamental rights guaranteed under the Article 14 (Equality before law) and 21 (Protection of life and personal liberty) of the Indian Constitution. The mentioned amendments were brought out by The Prevention of Corruption (Amendment) Act, 2018.

The matter was listed before the Bench comprising Justices BV Nagarathna and Ujjwal Bhuyan. The petition was filed by the Centre for Public Interest Litigation, which was represented by Advocate Prashant Bhushan. On the other hand, ASG Aishwarya Bhati appeared for the Union of Government.

Primarily, the challenge was two-folds. The petition stated that the impugned amendments have rendered the Act almost ineffective by completely diluting the scope of some of the original provisions, by deleting some of the earlier offences and also by introducing new provision, which in effect would protect corrupt officials and exponentially increase level of corruption.

Inter-alia, the petitioner has also assailed Section 12 of the Amendment Act that had introduced Section 17A (1) under the Act. The later provision provides that no investigation/inquiry/enquiry can be initiated against any public servant in relation to the offences under the Act without prior approval from the appointing government.

One of the main grievances of the petitioner is that the Court, in Vineet Narain’s case, has already had struck down the validity of a Single Directive issued by the Government which required prior sanction of the designated authority to initiate the investigation against officers of the Government and the Public Sector Undertakings (PSUs), nationalised banks above a certain level. The Single Directive was a consolidated set of instructions issued to the CBI by the various Ministries/Departments in this behalf. It was first issued in 1969 and thereafter amended on many occasions. (Vineet Narain & Others vs. Union of India & Another, 1 SCC 226).

It is also important to note that the Central Vigilance Commissioner Act, 2003, reinstated this requirement. However, this directive was again struck down by the Supreme Court in the course of another judgment in 2014 on the basis that it violated the right to equality guaranteed by the Constitution. (Dr. Subramanian Swamy v. Director, CBI and Ors. WP (C) No. 38 of 1997)

Apart from that, Section 7 of the Amendment Act, 2018 has also been challenged. Pertinently, this provision substituted sub-section (1) of Section 13 and thereby, deleted old provision under Section 13 (1) (d) (ii) of the Act. It has been contended that the deletion of Section 13 (i) (d) (ii) of the Act has substantially diluted the scope of the Act and would make it a very weak law.

Section 13(1)(d)(ii) of the unamended Act made it an offence if a public servant abused his position to obtain for himself or for any other person any valuable thing or pecuniary advantage. This was irrespective of whether the public servant obtained or attempted to obtain a bribe/gratification or undue advantage. As per the petition:

“It is the provision of section 13 (1)(d)(ii) that is the very essence of saving the country from the evil of corruption and realization of Preambular ideals on equality and economic justice. It is the heart of the Prevention of Corruption Act.”

The petition continues to argue that “although abuse of position has now been included in the amended section 7 of the Act as part of Explanation 2 of the clause, it is pertinent to note that section 7 defines offences relating to public servant being bribed. The marginal heading of section 7 states ‘Offence relating to public servant being bribed’ ”.

Notwithstanding the same, the inclusion of abuse of position as an explanation within Section 7 which deals with offences relating to public servant being bribed, makes it clear that abuse of position by a public servant resulting in pecuniary advantage for any Person (including himself), would not by itself constitute an offence under the Act unless the element of bribery is necessarily established.

Thus, it has been pleaded that the amendment has effectively omitted from within the ambit of the Act, the offence of abuse of position by a public servant to benefit any person (including himself), unless the element of bribery is established.

Case Title: Centre For Public Interest Litigation v. Union Of India W.P.(C) No. 1373/2018 PIL-W