'Protects Dishonest Public Servants' : Why Justice Nagarathna Struck Down S.17A Prevention Of Corruption Act

Justice BV Nagarathna of the Supreme Court held that Section 17A of the Prevention of Corruption Act, 1988 is unconstitutional, concluding that the requirement of prior approval before even initiating an inquiry or investigation is contrary to the object of the anti-corruption law and effectively shields corrupt public servants.“While the patent purpose of the provision is for the purpose of protecting honest public servants and preventing them from being subject to unjustified, frivolous and vexatious investigations, the latent object is that Section 17A should function as a shield that, in fact, protects the dishonest public servants. Blockading any form of enquiry or investigation at the very outset by making the same conditional on grant of approval results in corrupt officers receiving undue protection and finding ways to scuttle the investigation and the criminal justice process”, she held.In her separate opinion delivered in a split verdict by a bench comprising herself and Justice KV Viswanathan, Justice Nagarathna said the core issue was not who should grant approval under Section 17A, but whether such prior approval was required at all. She opined that the provision forestalls inquiry at the threshold and thereby protects the corrupt rather than honest officers who act with integrity.“the requirement of prior approval within the meaning of Section 17A of the Act 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”, she said.Attempt to resurrect a struck down regimeJustice Nagarathna traced the history of similar protections and noted that Section 17A was a third attempt to reintroduce a regime that had already been invalidated by larger benches of the Supreme Court. She pointed out that the Court in Vineet Narain v. Union of India (1998) struck down executive instructions issued to the CBI which required prior government approval before initiating investigation against senior public servants.She then referred to Section 6A of the Delhi Special Police Establishment Act, 1946, which mandated prior approval for investigation against Central Government officers of the rank of Joint Secretary and above. That provision was struck down by a five-judge Constitution Bench in Subramanian Swamy v. Director, CBI in 2014 for violating Article 14 of the Constitution. She held that Section 17A was “nothing but another attempt to resurrect on the statute book what was struck down by this Court earlier.”Invalid classification between decision making public servants and other public servantsOn classification, Justice Nagarathna observed that although Section 17A is framed as applying to all public servants, in substance it protects the same class of officers who were earlier shielded under Section 6A. She noted that the expressions “recommendation made” and “decision taken” in the section necessarily relate to higher-level officers who exercise decision-making power. Officers below a certain level only prepare notes and do not take decisions. As a result, she said, the protection under Section 17A effectively operates in favour of a particular class of public servants, even though the provision appears facially neutral. She held that insulating certain public servants from investigation creates an impermissible classification that has no rational nexus with the object of the Prevention of Corruption Act and the rule of law.She held that the form of protection envisaged under section 17A forecloses even a preliminary enquiry or investigation without prior approval and thereby shields corrupt public servants of a particular level and above.Justice Nagarathna said the requirement of prior approval is directly at odds with the object of the Prevention of Corruption Act, which is to ensure prompt and effective investigation of corruption offences.“those public servants who are not entrusted with the task of making a recommendation or take a decision taken in a matter can be proceeded without any prior approval. Thus, there is in-substance a classification within the class of public servants 132 which does not satisfy the twin test under Article 14 of the Constitution of India”, she said.Arbitrariness in Section 17AJustice Nagarathna also identified multiple sources of arbitrariness inherent in Section 17A. She pointed out that “policy bias” within government departments could affect the objectivity of the authority deciding whether prior approval should be granted. She noted that decisions or recommendations are often collective, making it difficult to single out one public servant for approval under the provision. She also flagged conflict of interest, observing that the authority empowered to grant or refuse prior approval may itself have participated in the decision under scrutiny. She further held that the grant or refusal...

'Protects Dishonest Public Servants' : Why Justice Nagarathna Struck Down S.17A Prevention Of Corruption Act

Amisha Shrivastava

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