“Not challenging sanction for prosecution but the sanction for inquiry or investigation”: Bhushan to SC
The Supreme Court said on Friday it will hear on November 20 the arguments on a plea challenging the constitutional validity of a provision of the anti-graft law which mandates obtaining prior sanction from the competent authority before launching an inquiry against a public servant in a corruption case. In mid-2018, the Narendra Modi government diluted the Prevention of Corruption Act by inserting provisions for prior approval in starting investigations against officials involved in corrupt practices. The plea came up for hearing before a bench comprising Justices B V Nagarathna and Ujjal Bhuyan.
Noted lawyer Prashant Bhushan, appearing for petitioner NGO ‘Centre for Public Interest Litigation’ (CPIL), told the bench that the plea relates to a “very important matter”. “It is a challenge to the amendment to the Prevention of Corruption Act (PCA) which says that no inquiry or investigation in any corruption case can be done without the prior approval of the government,” he said.
The apex court had on November 26, 2018, issued notice to the Centre seeking its response to the plea against the validity of amended section 17A (1) of the PCA. During the hearing on Friday, Prashant Bhushan said as per the amended section, no inquiry, or investigation in a corruption case can be done without the prior sanction of the government. One of the aspects of prosecution is sanction, the bench interjected.
“Sanction for prosecution is there. We are not challenging that. We are only challenging the sanction for inquiry or investigation,” Bhushan said. The bench posted the matter for hearing on November 20. The plea said the amended section curtailed investigation against corrupt officials at the threshold, and it was the third attempt by the government to introduce a provision that has already been held unconstitutional by the apex court twice.
Bhushan’s plea said that according to the amended Act, prior sanction for inquiry or investigation is required only where the alleged offence by a public servant is relatable to any recommendation made or decision taken by such public servant in the discharge of his official functions or duties. “It would be extremely difficult for the police to determine whether a complaint about an alleged offence is relatable to any recommendation made or decision taken by a public servant, especially as even an enquiry cannot be made without prior sanction,” it said.
The plea said the discretion to determine whether or not an alleged offence is relatable to any recommendation made or decision taken by a public servant could become a matter of litigation and will impede time-bound action in cases of corruption. Prashant Bhushan’s petition said obtaining prior sanction to commence the investigation not only took away the element of secrecy and surprise but also introduced a period of delay during which vital evidences could be manipulated or destroyed and gave time to the accused to lobby by employing various means for denial of permission.
The petition also challenged the constitutional validity of Section 13 (1) (d) (ii) (criminal misconduct) of the PCA, which made it an offence for a public servant to obtain for himself or any other person any valuable thing or pecuniary advantage by abuse of office. “This particular provision was resorted to by the CBI while filing charge sheets in every high-profile mega corruption case. While it was important that the person involved was charged or convicted but, it was far more important that the deal/ largesse was set aside and the loss to the exchequer reversed in these mega scam cases involving loss to exchequer of more than lakhs of crores as was the case in the 2G Spectrum allotment and coal and iron ore mine allotment cases,” pointed out the petition challenging the diluted Prevention of Corruption Act by Narendra Modi government in 2018.
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Mr Swamy and Mr Prashant Bhushan, please clarify whether the term ‘public servants’ includes the Prime Minister, Chief Ministers of various Govt and their council of Ministers or limited only to the Govt Officials who are working in various departments of both Central and State Govts.