Context: The Supreme Court delivered a split verdict on the legality of a provision in an anti-corruption law which mandates prior sanction before prosecuting public servants.
- Justice B.V. Nagarathna concluded that Section 17A of the Prevention of Corruption Act, 1988, was plainly unconstitutional, while Justice K.V. Viswanathan, the puisne judge on the Division Bench, said that sanction must be decided by an independent authority such as the Lok Pal or the Lok Ayukta.
Policy paralysis
- Justice Viswanathan said the mere possibility of abuse of an otherwise valid provision cannot be a ground for declaring it unconstitutional. He compared striking down Section 17A to “throwing the baby out with the bathwater”.
- “If honest public servants are not given a basic assurance that decisions taken by them will not be subjected to frivolous complaints, it is the nation that will suffer. Public servants will resort to a play-it-safe syndrome, and that will result in policy paralysis. The panacea of striking down will turn out to be worse than the disease,” Justice Viswanathan wrote in his opinion.
- He directed that an independent inquiry of the facts of a corruption complaint would be ideal before a grant of sanction.
- The case will now be referred to the Chief Justice of India to be placed before a Bench of three judges.
- “A fine balance has to be maintained between the need to protect a public servant against mala fide prosecution on the one hand and the object of upholding the probity in public life by prosecuting the public servant against whom prima facie material in support of allegation of corruption exists, on the other,” Justice Viswanathan observed in his opinion.
- He said the Lokpal had the authority to conduct an inquiry into even an allegation of corruption made against the Prime Minister of the country.
- “If Section 17A is invalidated on the ground that prior approval should not exist at all, the immediate consequence would be that any complaint alleging corruption in official decision-making could straightaway result in a police inquiry or investigation,” Justice Viswanthan reasoned.
Source: The Hindu