New Delhi, The Supreme Court on Tuesday stressed on striking a balance to protect honest government servants discharging their official functions from frivolous complaints while ensuring corrupt officers were not shielded.
A bench of Justices B V Nagarathna and K V Viswanathan said if honest public servants were made vulnerable because of vexatious complaints, they would not function at all and this might lead to a “policy paralysis”.
The apex court was hearing submissions on a plea challenging the constitutional validity of Section 17A of the Prevention of Corruption Act which mandates prior approval to start investigation against government officials in corruption cases.
“Ultimately, a balance has to be struck. Honest officers in the discharge of their duties must be protected from frivolous or vexatious complaints. Second, dishonest officers need not be protected,” the bench said.
The apex court observed one should not go with an approach that every officer was honest or every officer was dishonest.
It said government officers took decisions or made recommendations in discharge of their official duty and one couldn’t say every decision was “tainted”.
The bench said a sword of police investigation couldn’t be left hanging on the officers if he took a decision or made a recommendation in discharge of their official functions.
“What is wrong with this provision ? We want to know why are you attacking it,” the bench asked advocate Prashant Bhushan, who was appearing for petitioner NGO Centre for Public Interest Litigation.
Bhushan said the provision mandating prior sanction for even investigation or inquiry would effectively cripple the probe of corruption offences.
He said safeguards were already there for protection of honest government officers.
Bhushan referred to previous apex court verdicts which stressed on the need to make probe agencies independent.
“It is the executive, which misuses. It is the political government which is usually corrupt,” he said.
The government could not only influence the decisions of public servants but could also influence the grant of sanction and whether some investigation should proceed and against whom, Bhushan added.
“The political executive is there for the purpose of ensuring a particular policy being implemented. They would have made electoral promises. They want those promises to be implemented. They would have had certain schemes. They would have had certain programmes for implementation,” the bench said.
Bhushan, however, said, “We are today living in a situation in this country where unfortunately we are seeing gross miscarriage of justice across the board. We are seeing innocent people being arrested.”
He referred to cases probed by Enforcement Directorate against political leaders and claimed several such cases were dropped once the person being investigated joined the ruling party.
Solicitor General Tushar Mehta, appearing for the Centre, objected to Bhushan’s statement and said the issue before the court was concerning the Prevention of Corruption Act.
“We are not addressing seminar of any NGO,” Mehta said.
The bench then asked Bhushan to restrict his submissions to the cases of public servants.
“In all major decisions which government officers take, someone or the other will be dissatisfied,” Mehta said.
He said all aspects concerning Section 17A of the Act were discussed in Parliament.
Mehta further said corruption couldn’t be tolerated and there was a zero tolerance for it.
Parliament while enacting Section 17A felt the need to insulate public servants from false and frivolous allegations, Mehta added.
“Fearless governance is also a equally important part of rule of law,” he said.
Bhushan said the prior approval virtually put a fetter on the entire investigation.
The bench observed it might also be possible that the officer, against whom the complaint was made, was not at all involved in the process or had nothing to do with the decision taken or the recommendation made.
“Every complaint can’t be opening the floodgates. There must be filtering,” the top court said while clarifying it wasn’t shielding the corrupt.
Bhushan said, “If this section is allowed to remain in the statute book, I can guarantee that in almost no case of high level corruption, the permission will ever be granted by the government.”
The hearing would continue on August 6.
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