Need to protect honest officers from stigma: Supreme Court on challenge to PC Act amendments

The Supreme Court on Tuesday remarked that honest government officers must be protected against frivolous and vexatious allegations of corruption [Centre for Public Interest Litigation v Union of India].

A Bench of Justices BV Nagarathna and KV Viswanathan said that Damocles' sword cannot be left hanging over bureaucrats who take decisions; otherwise the same would lead to delay in important government policies.

"Secretaries take a lot of decisions. Sometimes, the decision has to be taken in an emergency situation. If there is no screening, then an FIR by itself can cause stigma," the Bench remarked.

The Court said that not every government decision can be said to be tainted.

"Ultimately, the balance has to be struck. Honest officers must be protected from frivolous or vexatious complaints. Second, dishonest officers need not be protected. So, what is the balance to be struck? If honest officers are made subject to frivolous cases, they will not act at all," the Court stressed.

The Bench made these observations while dealing with a plea filed by non-profit organisation Centre for Public Interest Litigation (CPIL), challenging the 2018 amendments to the Prevention of Corruption Act, 1988 (PC Act).

Advocate Prashant Bhushan appeared for the petitioner and argued that he has challenged the introduction of Section 17A and the changes made to Section 13 of the PC Act.

Section 17A bars police officers from conducting any inquiry or investigation into an offence alleged to have been committed by a public servant under, if it is related to "any recommendation made or decision taken by such public servant in discharge of his official functions or duties" without prior approval of the Central or the State government.

Through the same amendment, Section 13(1)(d) of the PC Act was repealed. The repealed provision criminalised actions where a public servant abuses their position to obtain a valuable thing or pecuniary advantage for themselves or others, or acts without public interest.

Today, Bhushan argued that the changes violate the Constitution Bench judgement of the Supreme Court and another three-judge bench order.

He stressed that the introduction of Section 17A has effectively empowered the Central government to choose which official would be acted against and which to shield.

"But if this section stays, then no sanction will ever be granted. Government cannot be entrusted with this... If the government is entrusted with this, it will be a recipe for disaster," he said.

Bhushan suggested that the Court can lay down guidelines to protect honest officers.

Solicitor General Tushar Mehta, appearing for the Central government, argued that the provisions were introduced following rigorous debate in the parliament and addresses the issue of "policy paralysis".

"Section 17A is very narrowly tailored, and it is made so effective that no one escapes, and at the same time, honest officers are not afraid," he said.

He added that fearless good governance is a part of the rule of law.

"When we held three organs under the constitution, the rule of law is attached to all organs. Independence of the judiciary is part of the rule of law, and so is good governance," he stressed.

The Bench asked Mehta about what material is considered by the sanctioning authority before allowing an investigation against a public servant.

He replied that the authority considers the decision taken, the file and the allegations.

The hearing will continue tomorrow (August 6).

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