Section 17A of Prevention of Corruption Act

Syllabus: GS2/Polity and Governance

Context

• The Supreme Court delivered a split verdict on the legality of a provision in an anti-corruption law which mandates prior sanction before prosecuting public servants.

About

• Justice B.V. Nagarathna concluded that Section 17A of the Prevention of Corruption Act 1988 was plainly unconstitutional, while Justice K.V. Viswanathan said that sanction must be decided by an independent authority like the Lok Pal or the Lok Ayukta.
  • The section 17A of Prevention of Corruption Act has barred the agencies from probing corruption charges against government officials without the Centre’s permission. 
  • It provides protection to public servants from frivolous investigations related to decisions taken in the discharge of official duties.
• The case will now be referred to the Chief Justice of India to be placed before a Bench of three judges.

Prosecution of Civil Servants

• It refers to criminal proceedings initiated against public officials for acts such as corruption, abuse of power, criminal misconduct, or offences under IPC and special laws, committed during the discharge of official duties.
• Article 311: It protects civil servants (Union, State, All-India Services) from arbitrary dismissal, removal, or reduction in rank.
  • Authority for Dismissal: A civil servant cannot be dismissed or removed by an authority lower than the one that appointed him/her.
  • Right to Inquiry: A civil servant cannot be dismissed, removed, or reduced in rank without being informed of the charges, and being given a reasonable chance to defend himself/herself in an inquiry.
  • Exceptions: An inquiry is not necessary in the following cases: Criminal conviction, Impracticable inquiry (authority records holding inquiry is not possible.), state security.
• Section 197 of CrPC: Courts cannot take cognisance of certain offences alleged to have been committed by a public servant.
  • Without prior sanction of the appropriate government.
  • When the offence was committed to act in the discharge of official duty.
• Prevention of Corruption Act, 1988: 
  • Section 19 Sanction for Prosecution: Prior sanction required before courts take cognisance of offences under the Act.
  • Sanctioning authority: Central/State Government or competent authority.
  • 2018 Amendments Section 17A: Prior approval required for investigation of decisions taken in official capacity. 

Arguments in Favour of Section 17A

• Mere possibility of abuse of an otherwise valid provision cannot be a ground for declaring it unconstitutional. 
• Protection against Frivolous Investigations: It shields honest public servants from motivated or politically driven probes for bona fide decisions.
• Prevents Policy Paralysis: Reduces fear of post-facto scrutiny, encouraging bold and timely decision-making, especially in complex policy and economic matters.
• Ensures Administrative Efficiency: Allows officers to focus on governance rather than defending routine decisions before investigative agencies.
• Maintains Balance between Accountability and Governance: The provision does not bar investigation altogether; it only regulates the stage of initiation, preserving accountability.
• Encourages Professional Autonomy: Strengthens institutional confidence of civil servants while implementing reforms and policies.

Arguments Against

• Dilutes Investigative Independence: Makes police and anti-corruption agencies dependent on executive approval, undermining autonomy.
• Delays Investigation at the Crucial Stage: Prior approval can cause loss of evidence, especially in white-collar corruption cases.
• Contrary to the Spirit of Anti-Corruption Laws: Shifts focus from public accountability to bureaucratic protection, weakening deterrence.
• Violation of Equality Before Law (Article 14): Grants special procedural protection to public servants, unlike private individuals.
• Against Rule of Law: Section 17A is arbitrary in the manner in which it foreclosed the possibility of even a bare enquiry, this scenario is against the rule of law.
• Weakens Fear of Law: Reduced likelihood of swift investigation may embolden corrupt practices.

Way Ahead

• An independent inquiry of the facts of a corruption complaint would be ideal before a grant of sanction.
• A balance is required between protecting honest public servants from malicious cases and ensuring accountability by prosecuting those against whom there is clear prima facie evidence of corruption.

Source: TH