SC delivers split verdict on mandating prior sanction to probe Govt servants

The Supreme Court on Tuesday delivered a split verdict on the constitutional validity of a 2018 amendment (Section 17A) to the Prevention of Corruption Act, which mandates prior sanction for initiating a probe against Government servants. While Justice BV Nagarathna said Section 17A of the PC Act is unconstitutional and needs to be struck down, Justice KV Viswanathan held the provision as constitutional while stressing on the need to protect honest officers, suggesting the prior sanction can be decided by Lokpal.

As it is a split verdict, the Chief Justice of India has to create a bigger bench to decide the matter. The top court’s judgment came on a PIL filed by NGO ‘Centre for Public Interest Litigation’ (CPIL), headed by noted lawyer Prashant Bhushan, against the validity of amended section 17A of the Prevention of Corruption Act.

Section 17A of the Prevention of Corruption Act, 1988, introduced in July 2018, bars any “enquiry or inquiry or investigation” against a public servant for recommendations made in discharge of official duties without prior approval from the competent authority. Requirement of prior sanction is contrary to the Prevention of Corruption Act, forecloses inquiry and protects corrupt, Justice Nagarathna said.

“Section 17A is unconstitutional and it ought to be struck down. No prior approval is required to be taken... The requirement of prior sanction is contrary to the object of the Act, and it forecloses inquiry and protects the corrupt rather than seeking to protect the honest and those with integrity who really do not require any protection,” Justice Nagarathna said.

Justice Viswanathan said striking down section 17A will be akin to throwing the baby out with the bath water and the “cure will be worse than the disease”.  “Section 17A is constitutionally valid subject to the condition that the sanction must be decided by the Lokpal or the Lokayukta of the State... The safeguard of this provision will strengthen the hands of honest officers but also ensure that the corrupt are brought to book.

It will guarantee that the administrative machinery attracts the best talent for the service of the nation,” Justice Viswanathan said.

The case will now be placed before Chief Justice of India Surya Kant for forming a larger bench to hear the matter for a final decision. “Having regard to the divergent opinions expressed by us, we direct the Registry to place this matter before the Chief Justice of India for constituting an appropriate bench to consider the issues which arise in this matter afresh,” the bench said.

Advocate Prashant Bhushan, appearing for the NGO, had argued that the provisions crippled the anti-corruption law as sanctions were not usually forthcoming from the Government, which was the ‘competent authority’. Solicitor General Tushar Mehta had appeared for the Union Government.