Amendment to Prevention of Corruption Act challenged before Rajasthan HC

A petition has been filed in the Rajasthan High Court challenging the constitutionality of provisions of the Prevention of Corruption (Amendment) Act, 2018 that was notified on July 26 this year..The petition filed by one Bhagwat Gour, through Advocates Ajay Kumar Jain, Aditya Jain, Sushila Nagar, and Ravi Saini, has challenged the constitutionality of the newly inserted Section 17A of the Act..The 2018 amendment has inserted Section 17A, which makes it mandatory to take prior approval from the government to carry out an inquiry or investigation into corruption charges against a public official. The section reads thus:.17A. (1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval—.(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;.(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;.(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:.Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:.Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month..Section 17A provides that no Police Officer shall conduct an inquiry against a public servant without sanction from the Central government or the state government, depending on where the person concerned is employed..The time frame within which the government may give its permission to conduct the inquiry is set at three months, which is extendable by another one month..It is contended by the petitioner that this provision is in violation of Articles 14, 19 and 21 of the Constitution of India and is “arbitrary and malafide”..“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 17-A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand”, reads the petition..It is claimed in the petition that by seeking prior approval from the government to carry out an inquiry, the officer under suspicion of an offence under this Act would be forewarned even before the investigation has begun..In the absence of prior permission from the government, the Police, in fact, will be prevented from even carrying out a preliminary inquiry to ascertain a prima facie case against the official concerned. Moreover, there will effectively be no material to place on record before the government to seek the necessary permission, claims the petitioner..Invoking Article 21, the petitioner has argued that the right to life includes the right to a crime-free life. It is stated that this classification is not in line with the spirit of the Act,.“[T]he classification is neither reasonable nor is founded on intelligible differentia and further has no rational relation with the object sought to be achieved, rather the provision encourages the corruption.”.In this light, it has been prayed that this Section be declared “ultra-vires, unconstitutional and void.”.Last year, the High Court had issued notice in a challenge to the Criminal Laws (Rajasthan Amendment) Ordinance, 2017, which contained similar provisions regarding sanction to investigate public servants. The state government ultimately withdrew the same in February this year..Read Petition: