The Supreme Court's split verdict on Section 17A of the Prevention of Corruption Act highlights the complex balance between accountability and administrative efficiency in India.The Supreme Court of India in the last month delivered a split verdict on the constitutional validity of Section 17A of the Prevention of Corruption Act 1988, which requires prior approval by the competent authority for investigating public servants in the discharge of their official functions and duties. How does the requirement of prior sanction under Section 17A raise concerns relating to the rule of law and equality before the law? So remember, the Prevention of Corruption Act was enacted in the year 1988 to check corruption by public servants. So definitely that Act is an important piece of legislation considering the level of corruption in India. Unfortunately, Section 18A of that Act mandates prior approval by the competent authority for investigating public servants in discharge of their official function. So that section was challenged before the Supreme Court and a two-judge bench was constituted. I am elaborating it. Section 17A of the Prevention of Corruption Act 1988, that came under the spotlight after a two-judge bench of the Supreme Court last month delivered a split verdict in a petition challenging its constitutionality. So that the judgement was equally divided. Justice K. Vishwanathan upheld the provision and he quoted Sardar Vallabhbhai Patel's reference to civil servants as the steel frame of India, underlining that without basic assurance of protection, public servants will resort to a play-it-safe syndrome. On the other hand, Justice B.V. Nagarathna struck it down entirely as unconstitutional. Section 17A, which was inserted through the Prevention of Corruption Act, an amendment in 2018, which says that 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, when the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official function or duties without the previous approval of the Centre or State as the case may be. So the plain meaning of it is that a public servant is protected and to investigate or to enquire against a public servant, the prior approval of the central government, in case if that public servant happens to be a member of UPSC, or state government if that public servant happens to be a member of the State Public Service Commission, will be required. But the views were divergent. Justice Nagarathna and Justice Vishwanathan specifically on whether Section 17A shields the honest public official from harassment or enables corrupt public servants to evade accountability. So the basic object of that section was to shield honest public servants. The split verdict therefore has largely been seen as reflecting a complex tension between accountability and administrative efficiency in democratic governance. It has also prompted an enquiry into some of the fundamental questions: is administrative law fundamentally in tension with the idea of rule of law? In what ways can an ideal anti-corruption law strike and promote maximum accountability of public servants without inducing policy paralysis and decision-making process? Let's explore and see how renowned scholars like British constitutional jurist A.V. Dicey and French jurist Maurice Hauriou have addressed such question. Justice Nagarathna struck down Section 17A as unconstitutional and violative of Article 14 of the Constitution. She expressed concern that the requirement of prior sanction would definitely impede timely investigation into corrupt officers and noted the risk of an institutional nexus between corrupt officers and sanctioning authority. On the other hand, Justice V. Vishwanathan upheld Section 17A as constitutionally valid subject to the condition that the power to grant prior sanction should be vested in an independent authority other than the government. He stated that lack of safeguards for public servants from frivolous complaints would lead to a policy paralysis. In contrast, Justice Nagarathna viewed Section 17A as fatal under rule of law. It is often argued that statutory safeguards are necessary to protect honest officers from harassment by means of unwanted investigation with respect to bona fide errors in the discharge of their official duties. The provision seeks to protect genuine officers, promote bona fide decision-making and thereby preserve the morale of public servants. Conversely, those challenging the section as unconstitutional and malafide argued that the provision jeopardises the swift investigation into the corruption by impeding the collection of sufficient material evidence and pre-investigation efforts. Although the split verdict resulted in referring the matter to a larger bench, that means a larger bench has to be constituted to settle that matter finally and it will be done by Chief Justice of India, the issue has triggered some fundamental debates in public administration. The renowned British constitutional jurist A.V. Dicey in 1885 in his famous treatise 'The Law of the Constitution' examined the contrasting relations between the principles of the rule of law and administrative law. His critique of French administrative law, which is known as 'droit administratif', in contrast with the English rule of law, was grounded in the concern that it assumed that government officials enjoy special rights. According to Dicey, this privilege flowed from the discretionary powers of bureaucrats. Although the Prevention of Corruption Act does not directly constitute part of administrative law, certain provisions such as requirement of prior sanction by the government tilt it towards the principle of governing the administrative law. The objection to Section 17A as fatal under rule of law arises not merely out of procedural nature but from a different context in which the section brings differential treatment to offence. Justice Nagarathna said, though the protection of prior approval is extended in or to all classes of public servant, in substance it extends only those public servants who take decisions and make recommendations in the discharge of their official duties. It prompted scrutiny under Article 14 of the Constitution. A similar concern was addressed by the Supreme Court in 2014 in the famous case Subramanian Swamy versus CBI where Section 6A of the Delhi Special Police Establishment Act, which granted immunity to higher ranking officials, was struck down as violative of Article 14 of the Constitution. It is often argued that the principle of the rule of law and equality before law under Article 14 of the Constitution of India cannot be protected if bureaucrats are insulated from legal scrutiny. In contrast, the Union Government argued in the court that the pre-investigation sanctions are per se not anathema to the rule of law, pointing out that similar protections are already enjoyed by the members of judiciary. However, the safeguard to the judiciary rests on distinctive constitutional logic intended to ensure its independence rather than shield it from accountability. The idea of administrative law when understood properly is not inherently in tension with the principle of the rule of law. Moreover, certain protection provisions to safeguard public servants are often justified on the premise that responsibilities for wrongs arising from bona fide decision-making need to be shared between the individual officer and government. The Union Government defended Section 17A on the ground that it intends to strike a careful balance between administrative efficiency and accountability. A fabulous complaint does not merely affect the morale of a particular officer against whom an investigation is initiated, it may erode institutional trust between the department concerned and public. Hence, the idea of accountability cannot be viewed narrowly as an issue confined to individual officers. Therefore, prioritising administrative efficiency does not amount to choosing corruption over delay in administration. The objective of Section 17A as argued by the Union Government may be to prevent climate of decision-making where public servants become risk averse due to the fear of prosecution for bona fide errors. The freedom to act fearlessly without any threat of frivolous complaint is essential to promote effective administration. Those were the government points. Bureaucrats in India often exhibit a play-it-safe syndrome which discourages them from taking decisions involving discretion. Public servants often tend to carefully build and preserve their reputation against the potential threats of their integrity. Public servants are entrusted with greater responsibilities, exercise wider discretionary and policy-making powers. Supreme Court split verdict on Section 17A of the Prevention of Corruption reflects the tension between accountability and administrative efficiency. Examine this statement in light of constitutional principle and recent judicial reasoning. Discuss the constitutionality of prior approval requirements for investigating public servants under the Prevention of Corruption Act. How does Article set the debate? Fear of accountability can lead to policy paralysis while excessive protection can enable corruption. So now be on this that with whose verdict you are agreeing. I am totally in agreement with Justice Nagarathna's view because our bureaucrats, our members of Public Service Commission, that may be Union or State, they are already enjoying certain constitutional protection. What is doctrine of pleasure? What is the principle of natural justice? Article 310 and Article 311 are protecting those public servants, exactly not protecting but without following the principles of natural justice a public servant cannot be dismissed. But here I totally agree with Nagarathna's view. We require accountability and fear of frivolous complaint allegation is not a factor. A public servant if he is an honest public servant, he need not fear anyone. But considering the corruption level in India, so I am afraid to say that India is one of the world's most corrupted countries. There is no doubt. If you set the corruption level of India with Scandinavian nations like Sweden, Norway, Denmark, Finland, Iceland or Australia, New Zealand, Canada where the corruption level is almost zero and the corruption in India that is going on without any check and the corruption has been done by both politicians and bureaucrats, industrialists, high profile person which are known as white collar crime that remains unchecked. So we don't require any such protection.

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