PREVENTION OF CORRUPTION (AMENDMENT) ACT, 2018
The Prevention of Corruption (Amendment) Act, 2018, recently enacted, introduces major changes in the main anti corruption law of the country. For example, it makes giving of bribe an offence; redefines ‘criminal misconduct’; prescribes the powers and procedures to confiscate property obtained through corruption; and extends provisions requiring sanction to prosecute to former officials too. There are many provisions of this new law, but the one that needs discussion is contained in Section 12 of the Act. This Section says: “No police officer shall conduct any enquiry or investigation into any offence alleged to have been committed by a public servant under this Act.....in discharge of his official functions or duties, without the previous approval” of the concerned government. It thus requires the police to obtain prior approval of the government before conducting investigation into an alleged offence of corruption committed by a public servant.
This provision in law rings a familiar tune, as the central government implemented it on two occasions in the past. Firstly, the Rajiv Gandhi government did so by issuing executive directions in the form of a ‘Single Directive’ to the CBI in 1986. The Vajpayee government later incorporated it in the Central Vigilance Commission Act of 2003. Both prohibited the CBI from undertaking any enquiry or investigation against any officer of the rank of Joint Secretary and above in the central government, including those in the public sector undertakings and nationalised banks, without prior sanction of the concerned government or departmental authority.
The present provision is different from the earlier stipulation in two ways. One, it is applicable to all police officers and not merely to those of the C B I. Two, it provides protection to all public servants and not only to the officers of the rank of Joint secretary and above. No public servant, not even the one at the clerical level involved in a corruption case, can be investigated without prior approval of the government.
Whenever the earlier law was challenged in the Supreme Court, the government defended it by saying it was done to protect ‘decision making level’ officers from vexatious and malicious proceedings, but this argument was never accepted by the Supreme court. The Court found it bad in law. It violated the principle of equality enshrined in the Constitution.“ The law does not classify offenders differently for treatment, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone.” The government’s intention to provide protection to all public servants and not only to senior officers above a certain rank appears to have been guided by this criticism by the court.
There is also a public perception that this law was used more to protect the guilty than to help the innocent officers take their decisions without fear or favour. There are some additional objections to this legal provision. According to the Criminal Procedure Code, the police are legally bound to register FIR on receiving information about the commission of a cognizable case. Law also requires them to make necessary inquiry/investigation and no permission is required to do so. The present law violates this basic principle of law and goes against various judgements of the higher courts, which say that investigation of criminal cases is the sole and exclusive preserve of the police and no outside authority can direct the police when to initiate or how to proceed with investigation. This was made clear by the Supreme Court through its judgement in the Havala Case.
The Constitution bench of the Supreme Court, in its judgement delivered on May 06, 2014 on the two writ petitions- one filed by Dr Subramanian Swamy and the other by the Centre for Public Interest Litigation on the subject- mentioned that the provision requiring prior approval “thwarts an independent, unhampered, unbiased, efficient and fearless investigation to track down the corrupt public servants.” The court further observed: “The very nexus of the criminal-bureaucrat-politician which is subverting the whole polity would be involved in granting or refusing prior approval before an inquiry or investigation can take place”.
This provision of new law is suspect on two other counts. One, the authority of the police in this country has been considerably eroded over a period of time. The new law will further deplete the capacity of the anti- corruption agencies to take their own decisions in doing their investigative work. They will become more dependent on the government than they already are. Two, it will add to the climate of impunity that prevails. There is already a provision of law, which requires the police to obtain sanction from the concerned government before prosecuting public servants involved in corruption cases. In many cases, there is considerable delay in receiving sanction and in some it never comes. Investigation into corruption cases may also meet the same fate. Now public servants will enjoy double protection- from investigation as well as prosecution. This government is not satisfied by providing impunity merely to serving officers; it has included even the retired public servants within the ambit of these provisions of law.
