Legal Articles

SC’s Twice Struck Down Bureaucratic Immunity Resurfaces in Amended PC Act

On July 26 when the President of India accorded his consent to the Prevention of Corruption (Amendment) Bill, 2018 as passed by both Houses of Parliament recently, the Modi Sarkar appointed that day itself as the day on which this law would get enforced/implemented across the country.. Now newly Sec 17 A as incorporated in Prevention of Corruption Act (PCA), 1988 clearly lays down that no police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant where it relates to any recommendation made or decision taken by such public servant in discharge of his official functions and duties without the previous approval of appropriate Government i.e. Central or State Government, as the case may be and a decision on grant of such approval can be conveyed in three months or at the most four months. This sort of bureaucratic shield/immunity is highly deplorable. Pertinent to recall that  it has has been  over four years  since a Constitution Bench of the Supreme Court on 6 May, 2014 in Dr. Subramanian Swamy Vs Union of India  declared that Section 6- A(1) of the Delhi Special Police Establishment Act (DSPE), 1946 ( i.e. law governing CBI) which requires mandatory approval of the Central Government so as to to conduct any  inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 where such allegation relates to   the employees of the Central Government of the level of Joint Secretary and above etc as being invalid and violative of Article 14 of the Constitution.  But  it is unfortunate that the incumbent Modi Sarkar, which assumed office just days ahead of this significant ruling  has not  repealed the aforesaid struck down provision till date which actually originated in the form of an executive “Single Directive” during Rajiv Gandhi dispensation in late 80s. Earlier in Dec, 1997 in Vineet Narain case, the three Judge SC Bench quashed that  executive Directive too. Now the same thing has resurfaced, albeit in a refurbished manner, in the PC Act in the form of Sec 17A as mentioned above. Even before this latest amendment, there was a need for seeking prior sanction for prosecution in such cases under Section 197 CrPC before the competent court could take cognizance in such cases. But now going a step further, there would now be a need to seek even sanction of enquiry/inquiry much less than for a due investigation

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