Prior Approval

• Context (IE): Recently, the SC issued a divided verdict on the requirement of Prior Approval from the GoI before investigating offences under the Prevention of Corruption Act (PCA), 1988.

• Verdict was on CM Chandrababu Naidu’s plea to quash an FIR in alleged skill development scam case.
• Justice Bose held that prior approval was necessary before conducting an inquiry into the allegations against Naidu, which the CID did not have when it opened the investigation.
• Justice Trivedi held it was necessary to seek approval under Section 17A of the PCA Act only to investigate offences committed after 2018, the year this requirement was introduced.

Prior Approval Requirement

Under Delhi Special Police Establishment Act, 1946

• In 2003, an amendment to the Delhi Special Police Establishment Act, 1946 (specifically Section 6A) was made.
• It mandated that agencies like the CBI seek GoI’s approval before probing alleged offences under the PCA, 1988, if the implicated employee held a rank higher than a joint secretary.
• The SC eliminated this requirement in 2014.

The Delhi Special Police Establishment Act This legislation was enacted in India in 1946. The Act was introduced to set up the Special Police Establishment (SPE) in 1941 with the primary responsibility of maintaining domestic security. The Central Bureau of Investigation (CBI), the premier investigative agency of the GoI, operates under the ambit of this Act. The transformation of the SPE into the CBI resulted from the recommendations made by the Santhanam Committee on Prevention of Corruption.

Under the Prevention of Corruption Act (PCA), 1988

• In 2018, the PCA underwent an amendment, incorporating a provision comparable to Section 17A.
• As per section 17A, if a public servant commits an offence under the Act during official duties, investigators must receive approval from the central/state government or a competent authority to initiate an inquiry.

Prevention of Corruption Act (PCA), 1988 The 1988 PCA was enacted to combat corruption in government agencies and public sector businesses in India. The Act ensures that corrupt officials are held accountable for their actions. The Act promotes transparency and accountability in public service. The Act identifies four types of corruption offences and their corresponding punishments. “Taking gratification other than legal remuneration.“ Accepting bribes or other illegal gratifications. “Taking gratification to influence a public servant through illegal and corrupt means.” Bribing a public servant to influence their actions. “Taking gratification to wield personal influence with a public servant.” Using illegal gratification to gain personal influence over a public servant. “Act of criminal misconduct by a public servant.” Using one’s official position to commit a criminal offence or obtain illegal gratification.

Challenges posed by Prior approval provision

• It impedes tracking down corrupt public officials.
• It undermines the purpose of anti-corruption legislation.
• It places the burden on police officers and investigating agencies, which would, in effect, protect corrupt officials.
• It is “tough” to determine if a public official committed an offence while discharging their duties if no investigation could be conducted in the first place.
• In its 2014 judgment, the SC observed that such provisions are destructive to the objective of the anti-corruption laws and sometimes result in a forewarning to those officials involved.

• In 2018, the NGO Centre for Public Interest Litigation (CPIL) challenged the constitutionality of the prior approval requirement.