Introduction
On January 16, 2024, the Division Bench of the Supreme Court delivered a split verdict in the case of Nara Chandrababu Naidu vs. State of Andhra Pradesh and Anr.,[1] (“Chandrababu Naidu Case”) wherein the pertinent question of law was relating to the interpretation of the scope of Section 17A of the Prevention of Corruption Act, 1988 (“PC Act”). The provision provides for a requirement of taking a prior approval of an appropriate authority before initiating any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the PC Act. Since the alleged offences in the instant case were committed prior to July 26, 2018 – the date on which Section 17A was incorporated vide the Prevention of Corruption (Amendment) Act, 26 of 2018, the issues identified by the Supreme Court relate to the interpretation and ambit of the following legal questions:
- the definition of ‘inquiry/enquiry/investigation’;
- the procedural and substantive nature of Section 17A; and
- the retrospective/retroactive/prospective application of the said provision.
However, due to the split verdict of the Supreme Court in Chandrababu Naidu Case, these positions remain largely unsettled and, therefore, the matter has been referred to the Chief Justice of India to pass an appropriate order on the constitution of a larger Bench for deciding the contrary views.
In light of this recent development, the article analyses the scope of Section 17A of the PC Act.
Understanding Section 17A of the PC Act
Section 17A of the PC Act provides that no enquiry or inquiry or investigation shall be conducted by a police officer into any offence alleged to have been committed by a public servant under the PC Act without prior approval from appropriate authority.
The High Court of Karnataka in Shreeroopa vs. State of Karnataka,[2] while interpreting the essence of the provision, held that the overarching objective behind Section 17A of the PC Act is to provide a protective shield, preventing arbitrary or frivolous investigations against public servants, and strike a balance in the manner the investigation is conducted against public officials. However, the requirement for prior approval has a plausible potential to impede or delay investigations against public servants, making it challenging for law enforcement agencies to pursue cases of corruption efficiently. The Chandrababu Naidu Case is a vivid example of the same.
Protection to Public Servants: A Brief Narration of History
In 1969, the Central Government issued a consolidated set of instructions to the Central Bureau of Investigation (“CBI”) called the ‘Single Directive’, which was periodically amended. Directive No.4.7(3) contained instructions regarding modalities of initiating an enquiry or registering a case against certain categories of civil servants. It provided for a prior sanction of the Designated Authority to initiate investigation against officers of the Government and Public Sector Undertakings & Nationalized Banks above a certain level.
While deciding several issues in the case of Vineet Narain and Ors. vs. Union of India and Anr.,[3] the Supreme Court also tested the validity of the Single Directive No.4.7(3). It held that by administrative instructions, the statutory powers of the investigating authority arising out of a legislation could not be intermeddled or impeded and, therefore, struck down Directive No. 4.7(3) of the Single Directive. The requirement of a sanction analogous to Single Directive No.4.7(3) was introduced by way of an Ordinance w.e.f. August 25, 1998, and the same lasted till October 27, 1998, before lapsing.
Thereafter, Section 6A, akin to Single Directive No.4.7(3), was introduced in the Delhi Special Police Establishment Act, 1946 (“DSPE Act”) vide Section 26(c) of the Central Vigilance Commission Act, 2003 w.e.f. September 11, 2003. The Supreme Court in Subramanian Swamy vs. CBI[4]held that Section 6A of the DSPE Act is violative of Article 14 of the Constitution of India as it created a classification among the public servants. Additionally, this declaration of unconstitutionality was retrospectively applied in CBI vs. RR Kishore[5]by a Constitution Bench of the Supreme Court.
However, the said provision was resurrected in the form of Section 17A in the PC Act w.e.f. July 26, 2018. This provision has continued to remain in the statute book. It also provides for approval before prosecution but without any classification of ranks of Government servants. All Government servants, irrespective of their category, class, or level are provided protection under Section 17A of the PC Act. Notably, the constitutionality of Section 17A of the PC Act is under challenge before Supreme Court in Centre for Public Interest Litigation vs. Union of India.[6]
Barring two occasions in the past, the public servants have remained under the protection of sanction-before-prosecution provision since 1969; and it continues till date.
Dissecting Section 17A of the PC Act
The Chandrababu Naidu Case presents the three interesting legal questions as delineated in the introduction paragraph.
Interpretation of Inquiry/Enquiry/Investigation
The protection provided under Section 17A of the PC Act prohibits conducting any inquiry or enquiry or investigation against a public servant. While the terms “inquiry” and “investigation” are defined under the Code of Criminal Procedure, 1973 (“CrPC”), there is no specific definition of the word “enquiry”. In this regard, reference can be made to the legal provisions that provide interpretation to these terms:
- Inquiry is defined under Section 2(g) of the CrPC to imply inquiry conducted under the Code by a Magistrate or Court.
- Investigation is defined under Section 2(h) of the CrPC to include all the proceedings conducted thereunder for collection of evidence by a police officer or a person authorized by a Magistrate in that behalf.
- Enquiry, as defined in the Standard Operating Procedure dated September 03, 2021, for processing cases under Section 17A of the PC Act is any action taken for verifying as to whether the information pertains to commission of offence under the PC Act.
In the Chandrababu Naidu Case, Justice Aniruddha Bose opined that the restriction under Section 17A of the PC Act is on conducting an enquiry by a police officer without the prior approval of the authority specified therein. A ‘request’ to conduct an enquiry by itself cannot be the starting point of the “enquiry”.
On the other hand, Justice Bela Trivedi, left open the nuanced question of finding the definite point for commencement of a given inquiry/enquiry/investigation. However, the learned judge substantially clarified that in the case of absence of a prior approval before initiating any inquiry/enquiry/investigation, the proceedings would neither be vitiated nor be considered a ground to quash the FIR.
It is relevant to note that, in the case at hand, the offence was allegedly committed prior to the incorporation of Section 17A to the PC Act and the “enquiry” is contended to have commenced post the amendment.
Nature of the Provision – Procedural or Substantive?
The Constitution Bench of the Supreme Court in CBI vs. RR Kishore, while deciding on the retrospective application of the declaration of unconstitutionality of Section 6A of the DSPE Act, heldthat the provision does not, in any manner, introduce any conviction or enhance any sentence post the commission of offence. Therefore, it was held that Section 6A is procedural in nature since it is a form of a protection given to senior government servants.
Note that the protection granted under Section 17A is very similar to Section 6A of the DSPE Act. Therefore, as per the rationale established by the Constitution Bench of the Supreme Court in CBI vs. RR Kishore, Section 17A would also qualify as a procedural provision.
Although, in State of Rajasthan vs. Tejmal Choudhary,[7] the Division Bench of the Supreme Court held that Section 17A of the PC Act is substantive in nature and therefore, it is applicable prospectively. Furthermore, in G.J. Raja vs. Tejraj Surana[8], the Court held that Section 17A of the PC Act does create new rights, disabilities, and obligations and should not be applied retrospectively.
Hence, it can be deduced that there is a diverse opinion on the procedural or substantive nature of the provision, which the larger bench of the Supreme Court may have to settle.
Retrospective and Prospective Application
In Vineeta Sharma vs. Rakesh Sharma and Ors.[9], the Full Bench of the Supreme Court has vividly distinguished the effects of retrospective, retroactive and prospective statutes, and has observed as under:
“The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backwards and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended Section 6, since the right is given by birth, that is, an antecedent event, and the provisions operate concerning claiming rights on and from the date of the Amendment Act.”
It is essential to note that the date of implementation of Section 17A of the PC Act, being July 26, 2018, indicates the intention of the legislature for its prospective application. In the Chandrababu Naidu Case, the Division Bench had a consensus on Section 17A of the PC Act being a substantive provision and hence would have prospective applicability. However, the point of contention is the date as to when prospectively is to be determined. The issue that remains unsettled is whether the applicability of Section 17A of the PC Act would be as per the date on which enquiry/inquiry/investigation is started or when the offence was committed or the request letter in the instant case, dated June 5, 2018 (prior to the insertion of section 17A in the PC Act i.e., July 26, 2018) would be construed as commencement of enquiry.
Concluding Remarks
In navigating the complexities of Section 17A of the PC Act, a split view by the Supreme Court underscores the critical importance of identifying the date for commencing enquiry into a particular case. While both the judges on the Bench held that Section 17A of the PC Act is substantive in nature allowing prospective application, the judgment also notes that Section 17A of the PC Act is pari materia with Section 6A of the DSPE Act. Notably, the Constitution Bench of the Supreme Court in CBI vs. RR Kishore has held that 6A of DSPE Act as merely procedural safeguard.
It is trite law that statutes should generally operate prospectively unless expressly stated otherwise. In the instant case, Section 17A of the PC Act was specifically made effective from July 26, 2018, thereby, clarifying the legislative intent to apply the said provision in a prospective manner. Notably, the restriction under Section 17A of the PC Act is on conducting an enquiry/inquiry/investigation by a police officer. One of the judges on the Bench apprehended making Section 17A retrospective leading to frustrating the objective of the PC Act. However, it is equally true that Section 17A of the PC Act is only a safeguard as demonstrated by its provisos. It is given that the larger bench, while deciding the controversy, would look into the concerns raised by one of the judges on the Bench that it is possible to view Section 17A of the PC Act as only a safeguard that would end up frustrating the objective of the legislation.
In conclusion, a fine balance would have to be drawn in relation to Section 17A of the PC Act such that both the interests of public servants and the broader goals of combating corruption are reconciled.
For further information, please contact:
Ankoosh Mehta, Partner, Cyril Amarchand Mangaldas
ankoosh.mehta@cyrilshroff.com
[1] 2024 SCC Online SC 47.
[2] 2023 SCC OnLine Kar 68
[3] AIR 1998 SC 889.
[4] (2014) 8 SCC 682.
[5] 2023 SCC OnLine SC 1146.
[6] Writ Petition (Civil) No. 1373 of 2018.
[7] 2021 SCC OnLine SC 3477.
[8] 2019 (19) SCC 469.
[9] (2020) 9 SCC 1.
