This is a three-part series decoding the Prevention of Corruption (Amendment) Bill, 2013. In the first part, we look at the issue whether mandatory sanction before investigating an offence of corruption against a public servant can deflate the fight against corruption?
Rajasthan government recently courted controversy. First, it brought out an ordinance which barred investigation against a Judge, Magistrate or any public servant except with the prior sanction from the government; then it introduced a Bill to replace the ordinance, which was quickly sent off to a select committee amid intense opposition and now it has been a served with a notice from the Rajasthan High Court where a clutch of petitions have challenged the ordinance.
This kind of a bill is not something that has happened for the first time. Even the central government wants to do the same. Through a set of formal amendments moved in May 2015 to the Prevention of Corruption (Amendment) Bill, 2013, the Central Government seeks to make sanction before investigation mandatory. It introduces a new Section 17-A making the sanction from Lokpal/Lokayukta necessary before initiating any inquiry/investigation against a public servant in all cases of corruption, except where such public servant is caught red-handed.
From 1988- 2017, evolution of this provision
Such a provision did not exist in the original Prevention of Corruption Act, 1988 (PC Act). However, under Section 19 of the Act, a previous sanction (approval) of a competent authority/appropriate government is required to prosecute the public servant accused of any offence under the Act. That is, sanction only before prosecution required, not before investigation. In effect, this means:-
- A complaint of corruption is received against a public servant;
- The complaint is investigated;
- The material gathered through investigation is placed before the government;
- After applying its mind, the government decides whether sufficient grounds exist to prosecute the public servant before a court of law;
- If sanction is given, prosecution is initiated.
This provision aims at protecting honest public servants from harassment through malicious or frivolous complaints.
For instance, a person upset by a bureaucrat’s decision not to grant him a tender because he was not eligible, could file a false complaint against him simply out of vengeance.
Section 197 of the Code of Criminal Procedure (Cr.P.C.), 1973 also seeks to immune Judges/Magistrates/Public Servants from prosecution without a previous sanction of the Government, if they are accused of committing an offence while acting or purporting to act in the discharge of their official duty, again highlighting the peculiar nature of their work which may create many enemies.
From 1988 to 2015, the provision of sanction before prosecution only was considered sufficient to protect honest public servants. It also ensured that those against whom sufficient evidence could be gathered during investigation get prosecuted as per the law.
Nevertheless, even when the Bill to amend the Act was introduced in Rajya Sabha in 2013, a provision for mandatory sanction before investigation was not inserted (though it appeared in a different format as explained later in the article).
The Bill was subsequently referred to the Standing Committee on Law and Justice (headed by MP Shantaram Naik) which made no such recommendation in its report. It was only in May 2015, that some amendments were moved to the Bill which, among other things, made requirement of sanction before investigation mandatory without providing for any timeline for giving such a sanction.
The 2013 Bill notes in its statement of objects and reasons that a review of the Act was necessitated after India ratified the United Nations Convention Against Corruption (UNCAC) in 2011. The Convention specifically provides that each state must ensure that any immunity and privilege accorded to its public officials and any discretionary legal powers must be exercised in a manner which maximizes effectiveness of law enforcement measures and deters commission of corruption.
Subsequently, the Bill, along with amendments moved in 2015, were referred to a Select Committee (headed by MP Bhupender Yadav) which in its report, upheld the provision of mandatory sanction before investigation. It further recommended, on the basis of suggestions received from state governments, that instead of Lokpal / Lokayukta, the sanctioning authority must be the relevant government which made the appointment, for practical reasons and administrative convenience.
It also prescribed a timeline of 3 months for granting sanction which could be extended by another month. Unlike the Rajasthan ordinance though, the Committee did not recommend that in case of no decision within the timeline prescribed, the sanction shall be deemed to have been given, i.e. no decision = approval (though this was a suggestion made before the Committee).
As noted by the Select Committee in its report, other suggestions that the Committee ignored before upholding this provision:-
- Such a provision to protect public servants (bribe taker) is discriminatory vis-à-vis the bribe giver who is a common man [since the Bill makes bribe giving an offence and seeks to bring bribe giver and bribe taker on equal footing in terms of penalties, adding an extra layer of sanction at the stage of investigation, only for the bribe taker, seems unjust]
CBI opposed the provision as it would lead to unnecessary delay in investigation.
It must be noted that if this Bill is passed, sanction requirement will operate at two stages now:-
- Investigation by a police officer;
- Before launching prosecution.
Further, sanctioning requirement before prosecution ensures that the sanctioning authority can apply its mind to the material gathered through investigation. But what material is likely to be available with a sanctioning authority even before investigation? As per the proposed Section 17A, the information received or complaint made to a police officer or agency will be placed before the sanctioning authority. This places the word of the complainant against the word of the accused public servant.
Further, any delay in investigation can result in intimidation of witnesses, elimination of evidences and in effect thwarting of the investigation, even if the sanction eventually comes.
Moreover, the process of investigation becomes vulnerable to political pressures.
What purpose is such a provision likely to serve is not clear- except making the procedure longer and more cumbersome.
Similar attempts in the past- an exercise in manipulating the system
Clause 14 of the 2013 Bill sought to amend Section 6A of The Delhi Special Police Establishment Act (DSPE Act), 1946. Under Section 6A, the DSPE is required to seek previous sanction to initiate investigation against the employees of Central Government of Joint Secretary Level or above and certain other officers appointed by Central Government in its corporations, companies, societies etc. in corruption cases covered under the PC Act. The 2013 Bill extends this requirement of previous sanction to the retired employees as well.
This Section 6A of DSPE, that the government was trying to amend had already been held unconstitutional by the Supreme Court in Dr. Subramanian Swamy v. Director, CBI & Another for violating Article 14 of the Constitution. The classification based on the status of the public officials in corruption cases was held to be not based on any intelligible difference as required by Article 14 (since this Section was seeking to protect public servants at a higher rank as opposed to those working at a lower rank). The Court further observes the adverse effect of this provision on corruption issue in the following words: (Para 59)
“Corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which has been made in Section 6-A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences.”
When the government moved amendments to this Bill in 2015, it replaced this clause, which was the correct thing to do.
But at the same time, it also undercut the Supreme Court’s judgment by extending this protection (sanction before investigation) to all public servants and not just to those at higher ranks.
Sanction or not and at what stage
In light of this discussion, several questions arise:-[All readers are requested to fill this QUESTIONNAIRE to share their inputs which will be collected and shared with Members of Parliament as they deliberate on the Bill]
- Should previous sanction in corruption cases be a requirement?
- If so, at what stage- investigation or prosecution or both?
- Who should be the sanctioning authority?
- What should be the timeline for granting sanction?
- Whether sanction requirement before investigation is likely to adversely affect the fight against corruption?
This is a three part series decoding the Prevention of Corruption (Amendment) Bill, 2013. In the next part of the series, we look at the issues related to criminalization of bribe giving.
Maansi Verma is the founder of Maadhyam, a participatory policy-making tool, connecting citizens with policy makers on policy issues.