Mandating Prior Approval For Investigation Not Appropriate : Justice Ujjal Bhuyan On S 17A Prevention Of Corruption Act

Supreme Court Judge Justice Ujjal Bhuyan recently made critical remarks against Section 17A of the Prevention of Corruption Act, which mandates that there must be prior approval from the concerned authority of the Government before initiating investigation against a public servant for an offence of corrption.

Justice Bhuyan said that mandating such prior approval "may not be appropriate" as it would amount to a veto of an impending investigation.

Justice Bhuyan was speaking at a panel discussion on the topic "The Changing Landscape of White-Collar Crime Investigations" as part of the International Legal Conference organised by the Supreme Court Advocates on Record Association at Panjim, Goa, on January 25.

During the session, Justice Bhuyan referred to the recent split verdict delivered by a bench comprising Justice BV Nagarathna and Justice KV Viswanathan on the constitutionality of Section 17A. While Justice Nagarathna struck down Section 17A as unconstitutional on the ground that it protected corrupt officers, Justice Viswanathan read it down to hold that prior approval must be decided by the Lokpal or the LokAyuktha instead of the Government.

Regarding this, Justice Bhuyan said, "Prima facie, I am of the view, as a student of law, that seeking the prior approval of the competent authority, before you want to investigate itself, may not be appropriate. This will virtually amount to vetoing an impending investigation. We will end up going after the small fish and letting the big players out of the net."

Justice Bhuyan also said that there was a need for a social audit of the Prevention of Corruption Act to ascertain whether it has achieved its objectives.

PMLA should not be misused

During the discussion, Justice Bhuyan also cautioned against the misuse of the Prevention of Money Laundering Act. He recalled the comments made by him in 2024 during a book launch that there has to be proper discretion in the application of PMLA and that it should not be arbitrarily applied in every case. Justice Bhuyan recalled that he had reminded that the "investigative agencies, under the PMLA, must be very fair" and that "people must not get the feeling that instead of targeting money laundering, the objective is something else."

Justice Bhuyan noted that after the verdict in the Vijay Madanlal Choudhary case, the PMLA has severe consequences, including asset attachment and arrest. While acknowledging that money laundering offences pose a grave threat to the country's economic sovereignty, Justice Bhuyan said that the Act however should not be routinely applied in ordinary cases.

"In case of economic offences, they must be prosecuted. But while prosecuting them, we cannot deviate from established constitutional principles. My concern is that," he said.

On bail under the PMLA

Commenting on the stringent bail conditions udner the PMLA, Justice Bhuyan said :

"Unfortunately, what is happening in the country is that, like the layman, even the investigative agencies, and some of the law officers as well, they tend to react as if the grant of bail amounts to acquittal. In PMLA cases, the maximum conviction is seven years. If you keep a person in jail for three or four years without bail, and the conviction rate is less than 6%, only for them to be acquitted at the end, how do you justify that prolonged incarceration?So, the Supreme Court repeatedly held that, yes Section 45 exists, but then, after a particular point of time, it must eventually give way to the higher constitutional principle of Article 21."

Justice Ujjal Bhuyan reminded that there was a distinction between the validity of an arrest and the necessity of an arrest. An arrest may fulfill legal grounds, but the power to arrest does not mean you must arrest. "In the Arvind Kejriwal case, I held that the arrest was illegal. He was on the cusp of release in the ED case when the CBI stepped in to arrest him for a complaint lodged two years prior; I found this practice wholly illegal," Justice Bhuyan said.

Investigation must not be selective

Justice Bhuyan said that the investigation under special laws like PMLA and PC Act must not appear to be selective or targeted. Cases should not be dropped merely because the accused "shifted sides" at the right moment, he commented.

"These are serious offences and they must be investigated and prosecuted. But it should not appear that the investigation is selective or targeted. If that happens, then the very purpose of having the special legislation is lost. People will give lot many examples. They have their own record, that for various reasons, though somebody is accused in a serious white collar offence, he is not being prosecuted because at the right moment, he has shifted sides. This is a serious thing that everyone needs to look at. Can the agencies be permitted to be selective? This issue will have to be dealt with by the Court."

On polvyvocality in the Supreme Court

Commenting on the issue of polyvocality in the Supreme Court, Justice Bhuyan noted that former Chief Justice of India DY Chandrachud had welcomed it as a sign of diversity in the country. At the same time, Justice Bhuyan noted that there are critics, such as Justice (Retired) RV Raveendran, who saw this as a trend which undermines the credibility of the Court.

Justice Bhuyan, noting that the Supreme Court sits in 14 or 15 benches, said that "if each bench is guided only by its own views of right and wrong, we end up with conflicting judgments, which sends a wrong signal to high courts and trial courts."

"It will be a sad day for the Indian judiciary and by extension our democracy if the verdict in a case becomes a foregone conclusion the moment it is listed before a particular bench or judge. We must be on guard against this," Justice Bhuyan said.

Justice Bhuyan asserted that the reason for the existence of the Supreme Court is to protect constitutional and human rights and not to justify the executive actions which violate rights. If that purpose is kept in mind, then there will not be any divergence of views on fundamental questions.

"At the end of the day, when we apply the principles of law, there cannot be a multiplicity of views in the Supreme Court. The very existence of the Supreme Court is for upholding personal liberty and human rights. The Supreme Court is not established to justify executive actions denying liberty or violation of human rights. That is not the reason for the existence of the Supreme Court. Once everybody understands this and puts this in place, there can be divergence of views among 34 judges, but there cannot be divergence of views on the very fundamentals on which our legal system exists. Once this is done, all other peripheral things will fall in place. Credibility of our institution will increase. Then people ouside our country will not hesitate to extradite people to be prosecuted in this country. Once we do this, all countries around the world will take note of this. All we need to do is keep aside our political or ideological views and stick to constitutional principles."