While Justice B.V. Nagarathna held the provision to be arbitrary, Justice K.V. Viswanathan ruled that it is constitutionally valid, subject to the condition that instead of the Central or the State government, the prior sanction to proceed against a public servant would depend on the recommendation of the Lokpal or the Lokayukta (in the case of States).
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The Supreme Court on Tuesday delivered a split verdict on a plea by the Centre for Public Interest Litigation (CPIL) challenging the constitutional validity of Section 17A of the Prevention of Corruption (PC) Act, which mandates prior sanction of the Central government or the State government, as the case may be, to inquire or investigate allegations of wrongdoing by a public servant in the discharge of official duties.
While Justice B.V. Nagarathna held the provision to be arbitrary, Justice K.V. Viswanathan ruled that it is constitutionally valid, subject to the condition that instead of the Central or the State government, the prior sanction to proceed against a public servant would depend on the recommendation of the Lokpal or the Lokayukta (in the case of States).
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In view of the split verdict, the matter will now be placed before the Chief Justice of India for the constitution of an appropriate Bench for fresh consideration of the issues. The Court ordered:
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“Having regard to the divergent opinions expressed by us, we direct the Registry to place this matter before the Hon’ble Chief Justice of India for constituting an appropriate Bench to consider the issues which arise in this matter afresh.”
Stating that in today’s era of intense public scrutiny driven by social media, even the arrest and court appearance of an honest person can cause irreversible damage to reputation and family honour, Justice Viswanathan observed that subsequent exoneration cannot undo such harm. He therefore issued directions introducing certain safeguards that would not only “strengthen the hands of honest officers but will also ensure that the corrupt are brought to book.”
Holding that Section 17A of the PC Act is constitutionally valid, subject to the condition that grant or refusal of approval by the competent authority would depend on the recommendation of the Lokpal or Lokayukta (in the case of States), Justice Viswanathan laid down a structured mechanism.
The Central or State government and the competent authorities, upon receipt of information regarding an alleged act of wrongdoing by an officer, shall refer the matter to the Lokpal or Lokayukta, which would hold an inquiry and, based on its findings, make recommendations to the concerned authority. The authority shall be bound to act on such recommendation for the grant or refusal of permission under Section 17A of the PC Act.
Directing that the Lokpal or Lokayukta, while making recommendations, shall set out reasons for the same, Justice Viswanathan said that the time limit stipulated under Section 17A must be scrupulously adhered to in all cases.
In a divergent view, striking down Section 17A, Justice Nagarathna held:
“Section 17A of the Act is struck down as it violates Article 14 of the Constitution inasmuch as it seeks to protect only those public servants who have the responsibility of making a recommendation or taking a decision in the discharge of their official duties, which are limited to the officers above a particular level, whether in the Union or State Governments …”
Stating that Section 17A protects only a certain class of officers and not those below them, Justice Nagarathna said: “Hence, it protects only a class of public servants inasmuch as prior approval is mandated …, whereas for all other public servants, it does not do so. Thus, in substance, the classification based on the nature of duties is illegal and therefore violates Article 14 of the Constitution of India for reasons analogous to those in Subramanian Swamy and Vineet Narain (case judgments).”
In a significant observation, Justice Nagarathna said:
“Section 17A is merely an attempt to reintroduce in a different form Single Directive 4.7(3) as well as Section 6A of the DSPE Act, 1946, which have been struck down as being unconstitutional in Vineet Narain and Subramanian Swamy, which are three-Judge and five-Judge Bench decisions of this Court respectively and are binding on this (two-judge) Bench.”
Consequently, Justice Nagarathna held that Section 17A is liable to be struck down for attempting to override earlier binding decisions of the Supreme Court.
Terming Section 17A as arbitrary, she further observed:
“Section 17A is invalidated by the arbitrariness in its manner of operation, by foreclosing the possibility of even a bare inquiry/enquiry/investigation without prior approval, under the garb of being prejudicial, leading to the likelihood of corrupt public servants of a particular level and higher being shielded, which is impermissible and contrary to the objects of the Act as well as the rule of law.”
She added: “In my view, prior approval being required for the purpose of protecting honest officers is not a valid reason for saving the provision from being declared unconstitutional, as a regime of prior approval at the stage of inquiry/enquiry/investigation is fundamentally opposed to the objects and purpose of the Act and hence has to be struck down on that ground also.”
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