NEW DELHI: Supreme Court on Tuesday held that Section 17A of the Prevention of Corruption (PC) Act, which bars police and agencies from probing corruption complaints against public servants without prior govt approval, suffered from infirmities. But an SC division bench differed on its implication – while one judge declared it outrightly illegal, saying the provision will protect corrupt officials, the other judge said striking it down would amount to “throwing the baby out with the bathwater” and the defect could be cured by roping in Lokpal/Lokayukta to take a decision on sanction.The split verdict was pronounced by a bench of Justices B V Nagarathna and K V Viswanathan on a PIL challenging the validity of Section 17A.The split verdict by the Supreme Court bench came on a PIL challenging the validity of Section 17A that was introduced in 2018 in the PC Act after a similar provision of Section 6A of the Delhi Special Police Establishment (DSPE) Act was struck down by SC in 2014.Terming Section 17A a “resurrection” of the quashed Section 6A of the DSPE Act and saying that “it is old wine in a new bottle”, Justice B V Nagarathna held that Section 17A has to be struck down for being contrary to the judgments of the larger bench and constitution bench of this court. Justice K V Viswanathan, however, was of the view that there is deficiency in the provision as it does not provide an independent mechanism to impartial examination of corruption complaints against public servants and the task cannot be entrusted to the govt department of the official concerned. He said Section 17A is constitutionally valid, subject to the condition that grant or refusal or the approval by the competent authority mentioned therein will depend on the recommendation of Lokpal or Lokayukta in case of states. In view of divergent opinion, the bench directed the registry to place the case before the CJI for constituting of an appropriate bench to consider afresh the issues which arise in this matter.Emphasising that “throwing the baby out with the bathwater” is not an option, Justice Viswanathan said, “The panacea of striking down will turn out to be worse than the disease.” He said there was a need to protect honest officers in discharging their duties without fear of frivolous complaint against them and that object is sub-served by Section 17A, but the only aspect missing expressly from the statute is the provision for an independent screening mechanism.”Civil servants should have the necessary freedom to take administrative decisions and express their views fearlessly without any threat of frivolous or vexatious complaints, for if they were to be exposed to such complaints in the future, there will be a chilling effect on them and their hands will be shackled. The net result will be a policy paralysis. It will be the tendency of every civil servant then to play it safe by taking no decision at all,” Justice Viswanathan said. The judge agreed with the Law Commission’s 254th report, which also suggested involving Lokpal/Lokayukta in the process under Section 17A.Emphasising that there should be zero tolerance towards corruption, Justice Nagarathna said the provision would protect a corrupt official as mandatory prior sanction would embolden officials to toe the line of their superior to make themselves safe. “In all the above circumstances, prior approval under Section 17A of the Act may not be granted by the department even when public servants have to ideally be inquired/enquired/investigated within the meaning of Section 17A of the PC Act. This means the mechanism of a prior approval would be used to protect public servants who would align and against those who do not fall in line by a threat of commencing an inquiry/investigation against them,” she said.She said there is need for an independent and autonomous person or body, who or which has nothing to do with the formulation and implementation of departmental policies or in the making of a recommendation or taking of a decision, to consider a request under Section 17A of the PC Act. “Such a body within the govt as per the said provision is conspicuous by its absence inasmuch as the same is not spelt out in the provision,” Justice Nagarathna said, adding there is “lack of objectivity, neutrality and fairness” in the provision.”In my view, there ought to have been an independent body which is not controlled by the govt to consider a case for grant of prior approval to conduct an inquiry/enquiry/investigation by a police officer. In the absence of such an independent and autonomous body which can make an impartial consideration with objectivity, Section 17A of the PC Act would be effectively frustrated for being vague and lacking in any guidance,” Justice Nagarathna said.Justice Viswanathan said if Section 17A is invalidated on the ground that prior approval should not exist at all, the immediate consequence would be that any complaint alleging corruption in official decision-making could straightaway result in a police inquiry or investigation. “This would permit immediate registration of FIRs, commencement of investigation and resort to coercive steps in cases involving recommendations and decisions in discharge of duty, regardless of whether the complaint is frivolous, motivated or based on hindsight. Such a result would be regressive,” he said.
