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CONTENTIONS OF THE PETITIONER:

5. Mr. Prashant Bhushan, learned counsel for the petitioner, ably assisted by Mr. Anurag Tiwary and Ms. Cheryl D’Souza, learned Counsels contends that Section 17A of the Act is violative of Articles 14 and 21 of the Constitution of India.

According to the learned counsel, this is an attempt to reintroduce a provision which had already been struck down twice by this Court in Vineet Narain and Others vs. Union of India and Another1 and Subramanian Swamy vs. Director, Central Bureau of Investigation and Another2. According to the learned counsel, in Subramanian Swamy (supra), this Court found that the provision prevented the investigating agency from collecting material evidence. He contends that all that Section 17A does is to extend the scope of protection to all levels of public servants and not just to a particular category. Pointing to the data filed by the Union of India pertaining to the Central Bureau of Investigation [CBI], it is contended by the learned counsel for the petitioner that out of 2395 cases, prior approval was refused in 41.3% of the cases, namely, in 989 cases. According to the learned counsel, there is no indication as to any transparent criteria for grant or refusal of sanction. It is contended that there is a reasonable (1998) 1 SCC 226 (2014) 8 SCC 682 apprehension of arbitrariness on the part of the authority. According to the learned counsel, this will give room for selectively targeting officials and also result in protecting and shielding the politically connected officials. Learned counsel for the petitioner contends that Section 17A, by vesting the power in the government to grant approval, is repugnant to the provisions of the Lokpal Act and Lokayuktas Act, 2013 (for short ‘the Lokpal Act’) defeating the purpose of an independent mechanism. Learned counsel further contends that the impugned provision (Section 17A) runs contrary to the dictum of this Court in Lalita Kumari vs. Government of Uttar Pradesh and Others,3 which according to the learned counsel for the petitioner, mandated registration of FIR on the disclosure of a cognizable offence. Learned counsel also contends that the provision is contrary to the United Nations Convention against Corruption, particularly Articles 6(2), 19 and 36. Learned counsel submits that there is an obligation to (2014) 2 SCC 1 interpret domestic law in the light of the obligation under the International Conventions. Alternatively, without prejudice to his arguments on the invalidity of Section 17A of the Act, Mr. Prashant Bhushan, learned counsel, in the rejoinder submissions, argued that if the regime of prior approval is to be preserved then screening by an independent agency, like for example the Lokpal, be engrafted.

100. When Parliament enacts a law it is deemed to be conscious of the judicial pronouncements having a bearing on the subject-matter. Viewed in that light, one has to presume that Section 17A does contemplate in the grant or refusal of the previous approval of exercise of a screening by an independent mechanism. No doubt, it has not been expressly set out. However, the simultaneous enactment of the Lokpal and Lokayuktas Act in the Centre and the States and the Law Commission’s recommendation that the approval itself under Section 17A has to vest with the Lokpal/Lokayukta do have a bearing on the interpretation of the provision. The Lokpal Act contemplates an Inquiry Wing, Investigation Wing and a Prosecution Wing. In this judgment, all that has been done is to avail the advantage of the independent Inquiry Wing for screening the information received under Section 17A for the purpose of grant or refusal of approval. If direct complaints could be entertained by the Lokpal and those complaints could be subjected to the procedure under the Act, there is no reason why Section 17A information received by the Government cannot be screened by the Inquiry Wing of the Lokpal and why that recommendation of the Lokpal after the screening was done ought not to be binding on the Government. This interpretation will take care of the mischief pointed out in Vineet Narain (supra) and Subramanian Swamy (Supra). The SOP prevalent now is wholly unsatisfactory and does not address the serious infirmity pointed in Vineet Narain (supra) and Subramanian Swamy (Supra).

The reasons for saying so may be summarily stated as under:

(i) Firstly, the question is, whether prior approval within the meaning of Section 17A of the Act has to be given at all? The question is not about who, within the Government or outside the Government, should give such an approval.

In my view, no such prior approval is required to be taken for the reasons that I have explained hereinafter.

(ii) Secondly, the larger Benches of this Court in Vineet Narain vs. Union of India, (1998) 1 SCC 226 (“Vineet Narain”) (three- Judge Bench) and Subramanian Swamy vs. Director, Central Bureau of Investigation, (2014) 8 SCC 682 (“Subramanian Swamy”) (five-Judge Bench) have struck down the Single Directive 4.7(3) as well as Section 6A of the Delhi Special Police Establishment Act, 1946 (for short, “DSPE Act, 1946), respectively.  In my view, Section 17A of the Act inserted in the year 2018 is nothing but another attempt to resurrect on the statute book, what was struck down by this Court earlier.

4.5 It was vehemently contended that the aforementioned two judgments of this Court in Vineet Narain and Subramanian Swamy were not merely decided on the question of the validity of the classification between classes of officers but also took note of the overarching problem of corruption in India as a source of grave danger to our constitutional republic. That this Bench would be bound by the decisions in Vineet Narain and Subramanian Swamy as they were a three-Judge Bench and five-Judge Constitution Bench decision of this Court respectively. That the introduction of Section 17A was for the sole purpose of rendering ineffective the judgments of this Court in Vineet Narain and Subramanian Swamy. That this Court is required to interpret anti-corruption provisions in a manner that would enhance and not subdue their efficiency and functioning. 4.6 It was further submitted that the introduction of Section 17A is contrary to the position of law laid down by this Court in Lalita Kumari vs. Government of Uttar Pradesh, (2014) 2 SCC 1 (“Lalita Kumari”), which held that registration of an F.I.R was mandatory upon the investigating officer receiving information of the commission of a cognizable offence.