The Supreme Court said on Friday it will hear on November 20 the arguments on a plea challenging the constitutional validity of a provision of the anti-graft law which mandates obtaining prior sanction from the competent authority before launching an inquiry against a public servant in a corruption case.
The plea came up for hearing before a bench comprising Justices B V Nagarathna and Ujjal Bhuyan.
Advocate Prashant Bhushan, appearing for petitioner NGO 'Centre for Public Interest Litigation', told the bench that the plea relates to a "very important matter".
"It is challenge to the amendment to the Prevention of Corruption Act which says that no inquiry or investigation in any corruption case can be done without the prior approval of the government," he said.
The apex court had on November 26, 2018 issued notice to the Centre seeking its response on the plea against the validity of amended section 17A (1) of the PCA.
During the hearing on Friday, Bhushan said as per the amended section, no inquiry, enquiry or investigation in a corruption case can be done without the prior sanction of the government.
One of the aspects of prosecution is sanction, the bench interjected.
"Sanction for prosecution is there. We are not challenging that. We are only challenging the sanction for inquiry or investigation," Bhushan said.
The bench posted the matter for hearing on November 20.
The plea alleged the amended section curtailed investigation against corrupt officials at the threshold, and it was the third attempt by the government to introduce a provision which has already been held unconstitutional by the apex court twice.
It said that according to the amended Act, prior sanction for inquiry or investigation is required only where the alleged offence by a public servant is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties.
"It would be extremely difficult for the police to determine whether a complaint about an alleged offence is relatable to any recommendation made or decision taken by a public servant, especially as even an enquiry cannot be made without prior sanction," it said.
The plea claimed the discretion to determine whether or not an alleged offence is relatable to any recommendation made or decision taken by a public servant could become a matter of litigation and will impede time-bound action in cases of corruption.
It claimed obtaining prior sanction to commence investigation not only took away the element of secrecy and surprise but also introduced a period of delay during which vital evidences can be manipulated or destroyed and gave time to the accused to lobby by employing various means for denial of permission.
The petition also challenged the constitutional validity of section 13 (1) (d) (ii) (criminal misconduct) of the PCA, which made it an offence for a public servant to obtain for himself or any other person any valuable thing or pecuniary advantage by abuse of office.
"This particular provision was resorted to by the CBI while filing charge sheet in every high-profile mega corruption case. While it was important that the person involved was charged or convicted but it was far more important that the deal/largesse was set aside and the loss to the exchequer reversed in these mega scam cases involving loss to exchequer of more than lac crores as was the case in the spectrum allotment and coal and iron ore mine allotment cases," it said.
