On January 13, a 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 (“the section”), in The Centre for Public Interest Litigation (CPIL) vs Union of India. Both judgments in this case are exhaustive, exemplifying the best tradition of the Court in bestowing the deepest judicial consideration and exercise of judicial conscience to the issues before the Court. The case had challenged the constitutionality of the section that 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.
The case was mounted on the premise that corruption is anathema to rule of law and vesting the government with the power to stall corruption investigations (where it may have a vested interest) would allow corruption to go uninvestigated and, hence, unchecked.
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Arguments of both sides
In this case, the petitioners argued that the amended section was unconstitutional, being in the teeth of two earlier judgments of the Court. When a Single Directive (a consolidated set of instructions issued to the Central Bureau of Investigation, or CBI, by various Ministries/Departments), requiring prior sanction of the designated authority before initiating investigation against certain categories of public servants, was issued, its legality was challenged.
In Vineet Narain vs Union of India (1998) 1 SCC 226, the Court had quashed the Single Directive and held that the final opinion whether to investigate or not has to be made by the CBI and not by anyone else. The executive on its own cannot foreclose inquiry into any allegation of corruption as that would be entering the domain of the investigative agency.
The judgment came in the backdrop of the N.N. Vohra Committee (1993) that presented the frightening criminal nexus between highly-placed politicians, high-ranking bureaucrats, and criminal elements. The Court 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.
To bypass the judgment in Vineet Narain, the central government enacted the Central Vigilance Commission Act, 2003. Here it introduced Section 6A to the Delhi Special Police Establishment (DSPE) Act, effectively reintroducing the Single Directive. A Constitution Bench in Dr. Subramanian Swamy vs Director, CBI & Anr (2014) 8 SCC 682 declared Section 6A of the DSPE Act to be unconstitutional on the ground that the classification of officers based on status in government service, for the purpose of investigation was discriminatory and violative of Article 14. It also held that such power to interdict corruption investigations would encourage the criminal-bureaucrat-politician nexus and thwart unbiased and efficient inquiry/investigation to track down corrupt public servants. The Court held: “… the signature tune in Vineet Narain is, ‘However high you may be, the law is above you’ We reiterate the same. Section 6A offends this signature tune and effectively Article 14.”
In the CPIL case, the petitioners argued that the Section 17A of the PC Act is distinguishable from Section 6A of the DSPE Act only in the sense that it expands the scope of protection to all levels of public servants and not just to a particular category of public servants (as 6A of the DSPE Act did). The Section does not just ignore the clear findings arrived at by the Court earlier but also chooses to defy the spirit of those findings. It was further argued that the Section runs contrary to the dictum in Lalita Kumari vs Government of Uttar Pradesh & Ors (2014) 2 SCC 1, which mandated registration of a first information report and consequent investigation on the disclosure of a cognisable offence.
The government on the other hand defended the constitutionality of the Section and sought to distinguish it from the earlier judgments of the Court on the ground that the Single Directive was struck down as it was merely an administrative order. It added that the Subramaniam Swamy judgment was dealing with a distinction made between officers of Joint Secretary and above versus officers below — both of which did not apply to the present challenge to the constitutionality of the Section.
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Where the judges differed
Justice Nagarathna, while upholding the petitioner’s contentions, held Section 17A to be contrary to the objects of the Act and unconstitutional as the requirement of prior sanction from the government, she held, “forestalls an enquiry and thereby in substance protects the corrupt”. The Section shields a class of public servants and revives an impermissible protection which was previously struck down in Vineet Narain and Subramaniam Swamy. She also held that there was a conflict of interest between the government (Minister granting sanction) and the officers whose consent for investigation was sought, since they would often be working in the same department with a meeting of minds about decisions taken, amounting to acts of corruption.
Therefore, such a provision was likely to impede investigation into corrupt officers who may, instead, find protection from higher authorities within the same institutional nexus, thereby allowing unchecked corruption. She also held that there would be a policy bias in the officials tasked with granting sanction as they would lack neutrality while considering a request for approval for carrying out an inquiry or investigation into a complaint vis-à-vis a decision taken by a public servant in their department.
Justice Viswanathan, while agreeing with Justice Nagarathna and the petitioners that leaving the power of consent with the government would render the provision unconstitutional, found no fault with the provision of prior sanction per se. He held it to be constitutionally valid, subject to the condition that the grant or refusal of approval would rest not with the government but with an independent agency before the decision is taken by the government.
He observed that striking down the Section would lead to a policy paralysis as he felt that honest public servants needed to be insulted from frivolous and mala fide police investigations. He held that the Lokpal, conceived as an independent anti-corruption authority, would deal with such cases in an independent manner, and that its recommendations would be binding on the government as the PC Act and the Lokpal Act operate in the same normative field. “Both address allegations of corruption against public servants, both recognise the need for screening, and both seek to balance accountability with protection against misuse”.
At the core
The core disagreement between the two judges is on how to strike a constitutional balance between protecting honest decision-making public servants and ensuring an efficient anti-corruption regime. There is partial agreement between the two judges on the provision being unconstitutional if the power of granting sanction for investigation was left with the government. There remains disagreement on whether prior approval before inquiry or investigation by a police officer is an impermissible barrier (making the Section unconstitutional) or whether having an independent agency such as the Lokpal as a filter to prevent abuse would overcome this barrier (thereby upholding the Section’s constitutionality).
Differing from her brother judge, Justice Nagarathna stated, “whether prior approval must be given, was the question, and not who, within or outside the government should give the approval.”
The matter has been referred to the Chief Justice of India for constitution of a larger Bench to decide the issue conclusively.
Prashant Bhushan is an advocate in the Supreme Court of India. Cheryl D’Souza is an advocate in the Supreme Court of India. They were counsels for the petitioners in this case before the Supreme Court of India
