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Notice issued to Centre on petition challenging validity of Section 17A of PC Act that mandates governmental nod for inquiry against any bureaucrats

The Supreme Court could examine the constitutional validity of amendments made to the Prevention of Corruption Act by the Narendra Modi government in July this year which made it difficult for probe agencies to expeditiously act against serving and retired bureaucrats after receiving complaints of alleged graft.

On Monday (November 26), an apex court bench headed by Chief Justice Ranjan Gogoi issued notice to the Centre on a petition filed by the Center for Public Interest Litigation (CPIL). The petition seeks a review of Section 17A of the PC Act which mandates that the still-to-be-formed Lokpal at the Centre and the Lokayuktas in States will have powers to approve initiation of inquiries against all serving and retired bureaucrats upon receipt of any complaint of graft against them. The Centre has been asked to respond to the notice within six weeks.

It may be recalled that on July 26 this year, the Centre notified amendments to the PC Act. While the amended anti-graft law introduced stringent penalties for bribe givers and bribe seekers once their culpability in the act was proven, the legislation came in for strident criticism because it made the investigative process more cumbersome. Many anti-graft crusaders had, at the time of the passage of the amended legislation, mocked the law as one that should be called Protection (and not Prevention) of Corruption Act”.

The amended Section 17A of the Act reads thus:

 “(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.”

Critics of the amended Act claim that Section-17A “violates of Article-14, 19 and Article-21 of the Constitution of India” and that it also takes away or abridges the fundamental rights of complainants of fair investigation as well as equality before the law.

The Modi government, on the other hand, has maintained that the amended legislation serves as a strong deterrent against corruption while it also safeguards conscientious bureaucrats against motivated complaints.

Votaries of the amended Act state that it had increased the punishment for those found guilty of offering a bribe from the previous mandated jail term of six months to three years to a more stringent “up to seven years imprisonment”. The amended law also provides for a sentence of “between five to 10 years” for repeat offenders. It also stipulates that investigation and trial against government employees alleged of crimes under that Act must be completed within two years – and if this condition is not met then a maximum extension of another two years may be granted.

—India Legal Bureau

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