Supreme Court is scheduled to consider a PIL on November 7 challenging the constitutionality of certain recent amendments to the Prevention of Corruption Act, 1988 (the Act). The basis of this challenge is the assertion that these amendments infringe upon fundamental rights protected by Article 14 (Equality before the law) and Article 21 (Protection of life and personal liberty) of the Indian Constitution. These amendments were introduced through the Prevention of Corruption (Amendment) Act, 2018. 

The matter was heard before the division bench of Justices BV Nagarathna and Ujjwal Bhuyan. The petitioner in this matter was the Centre for Public Interest Litigation, and their legal representation was provided by Advocate Prashant Bhushan. On the opposing side, Assistant Solicitor General (ASG) Aishwarya Bhati appeared on behalf of the Union Government.

Primarily, the challenge was two-folds. The petition stated that the impugned amendments have rendered the Act almost ineffective by completely diluting the scope of some of the original provisions, by deleting some of the earlier offences and also by introducing new provision, which in effect would protect corrupt officials and exponentially increase level of corruption.

In addition, the petitioner has challenged Section 12 of the Amendment Act, which introduced Section 17A(1) under the Prevention of Corruption Act. This newly added provision stipulates that no investigation, inquiry, or enquiry can be initiated against any public servant regarding offenses under the Act without prior approval from the appointing government.

One of the key concerns raised by the petitioner is that the Supreme Court had previously invalidated the validity of a Single Directive issued by the Government in the Vineet Narain case.

This directive had required prior authorization from the designated authority before initiating investigations against government officers, Public Sector Undertakings (PSUs), and nationalized banks above a certain rank. The Single Directive was a consolidated set of instructions initially issued in 1969 and subsequently amended multiple times. This legal precedent was established in the case of Vineet Narain & Others vs. Union of India & Another (1 SCC 226).

It is also important to note that the Central Vigilance Commissioner Act, 2003, reinstated this requirement. However, this directive was again struck down by the Supreme Court in the course of another judgment in 2014 on the basis that it violated the right to equality guaranteed by the Constitution. (Dr. Subramanian Swamy v. Director, CBI and Ors. WP (C) No. 38 of 1997)

Additionally, the petitioner has contested Section 7 of the Amendment Act, 2018. Notably, this provision replaced sub-section (1) of Section 13 and consequently removed the previous provision under Section 13(1)(d)(ii) of the Act. The argument put forth is that the removal of Section 13(1)(d)(ii) of the Act has significantly weakened the Act's scope, potentially rendering it ineffective as a robust legal framework to combat corruption.

Section 13(1)(d)(ii) of the unamended Act constituted an offense when a public servant misused their position to acquire a valuable item or financial benefit for themselves or another person, regardless of whether the public servant received or attempted to receive a bribe, gratification, or undue advantage. According to the petition:

“It is the provision of section 13 (1)(d)(ii) that is the very essence of saving the country from the evil of corruption and realization of Preambular ideals on equality and economic justice. It is the heart of the Prevention of Corruption Act.”

The petition continues to argue that “although abuse of position has now been included in the amended section 7 of the Act as part of Explanation 2 of the clause, it is pertinent to note that section 7 defines offences relating to public servant being bribed. The marginal heading of section 7 states ‘Offence relating to public servant being bribed’ ”.

Nevertheless, the incorporation of "abuse of position" as an explanation within Section 7, which pertains to offenses involving a public servant being bribed, indicates that the Act now specifies that the abuse of position by a public servant leading to a financial benefit for any individual, including themselves, will not be considered an offense under the Act unless the crucial element of bribery is conclusively proven.

Thus, it has been pleaded that the amendment has effectively omitted from within the ambit of the Act, the offence of abuse of position by a public servant to benefit any person (including himself), unless the element of bribery is established.

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