The Asthana Judgment and the Puzzle of Section 17-A, PC Act

A few weeks ago, a Single Judge Bench of the Delhi High Court dismissed the petitions filed by Mr. Rakesh Asthana and others, seeking to quash the criminal investigations initiated against them by registration of a First Information Report [FIR] under provisions of the Indian Penal Code 1860 [IPC] and the Prevention of Corruption Act 1988 [PC Act] [See, Devender Kumar v. CBI, WP (Crl.) 3247 of 2018, decided on 11.01.2019]. The allegations, briefly, were that the concerned officers were extorting the complainant into paying them huge sums of money to close investigations being run by the CBI. It took the complainant almost a year after the first alleged incident of extortion to register a complaint with the CBI, which then lodged an FIR against the concerned CBI officers. 

The Section 17-A Issue

The High Court judgment dismissing the petitions discusses several arguments, but the focal point of attack for the CBI officers was a lack of sanction under the new Section 17-A of the PC Act, that was inserted in 2018. This Blog has discussed Section 17-A in depth earlier, and for convenience the text of the provision is copied below (the judgment copies the incorrect provision, amazingly):

(1) 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, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval [relevant authorities mentioned] 

... 

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: 

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month. [Emphasis supplied]

Briefly, the point to be noted is that Section 17-A applies to investigations. This is different from the existing provisions in Indian law that require police to obtain sanction before prosecuting public servants.

The High Court's View on Section 17-A
In dismissing the petitions, the High Court naturally held that there was no need for prior sanction to register the FIR. How did it come this conclusion? The analysis is distilled in Paragraph 36 onwards, and I have shortened them to two broad points:

• One, Section 17-A is only designed to protect bona fide decisions. If the act is "ex-facie criminal or constitutes an offence" prior approval is unnecessary. The alleged acts — extortion and threatening persons — cannot be in "discharge of official functions or duties of the public servant" and so no sanction is needed. 
• Section 17-A is not attracted as this case involves "no recommendation or decision on record by a public servant in the discharge of his official functions" [Emphasis mine].

There is other rhetoric as well, on the lines of speedy investigations being in the best interests of all and that the law does not defer to personalities, but these are the broad legal reasons for the High Court's view. The first point is an old one and sourced from the existing law on sanction to prosecute, where the Supreme Court has restricted sought to eliminate any need for sanction where acts are per se a crime, such as entering into a conspiracy. The second point, though, is new, and an ingenious take on the text of Section 17-A PC Act. While the section mentions nothing about decisions "on record", the Court has introduced that to exclude this case from the need for sanction.

A Critique of the High Court View

The thrust of the Delhi High Court decision is to interpret Section 17-A as a safeguard for the good officer. In the words of the Court, the purpose of sanction "can be read to be only to provide protection to officers who discharge their official functions and / or duties with diligence, fairly, in an unbiased manner and to the best of their ability and judgment, without any motive for their personal advantage or favour." 

This approach has held the judiciary in good stead in cases involving sanction to prosecute officers for several decades, but is not without faults. The most natural one being that this involves placing the cart before the horse: the judiciary ends up judging whether the act was bona fide or not at the outset, whereas that job is for the sanctioning authority. 

This logical problem is greatly accentuated in the case of Section 17-A of the PC Act, which triggers at the stage of investigation itself. After all, this is the first step in the case, and it is impossible for the allegations to be concrete as the FIR is not the outcome of a thorough investigation. Moreover, the language of Section 17-A is very loose — it seeks to not only protect the decision, but also acts that are relatable to it. 

In focusing on a bona fide decision, is the judgment not giving a simple way out of Section 17-A sanction by telling us that complaints should be framed so as to avoid any mention of official decisions? It is impossible to apply the bona fide decision test with any sense of objectivity. If we keep going down this road, what Section 17-A will be reduced to is the judiciary vetting every FIR, in addition to the vetting by the executive branch that the provision originally contemplated.

This then brings me to the second point, of requiring decisions on be "on record" for Section 17-A to apply. As ingenious as the solution may be, the fact is that these words are not there in Section 17-A and thus amount to the court re-writing the statute. This re-writing is usually impermissible unless the law has a gap or a clear and obvious error. Both seem to not apply here, which make this ground a rather weak one.

Conclusion: The Puzzle of Section 17-A 

The Delhi High Court's decision in Devender Kumar offers one of the few judicial engagements of Section 17-A currently available and deserves to be discussed widely. At its heart, the Delhi High Court is driven by the idea that Section 17-A is driven to protect bona fide decisions in the same way as the existing law did. But in extending the protection of sanction from prosecution to investigation, it becomes very difficult for courts to actually figure out when decisions are good or bad. This makes it equally difficult to accept the High Court's view of the purpose behind Section 17-A. Rather, one would argue that the purpose is exactly to confer a blanket protection to public servants, except if they are caught red-handed. This is perhaps why the expedited sanction of three months is provided for as well. This blanket view will also take away the need for courts to review each case to decide if sanction is needed or not. It will be fascinating to see how different courts perceive the issue going forward, and also to see how many courts engage with the other ground of Devender Kumar of only applying Section 17-A to recorded decisions. 

Snippet - Constitutional Evasion and the CBI's Dubious Legal Basis

The Indian Constitutional Law and Philosophy Blog put up an important and timely opinion on what appears to be an emerging doctrine of constitutional evasion, where the Supreme Court is creating an effect by simply not deciding issues of seminal constitutional importance. Demonetisation and Aadhar were taken as two examples, and in this snippet I offer a third - the legal status of the Central Bureau of Investigation.  

The CBI is a curious entity and was once before the subject of a Guest Post on this Blog. It does not have any statutory basis and traces its foundation to a Notification passed in 1963 (Resolution No. 4/31/61-T dated 01.04.1963). Its precursor was the Delhi Special Police Establishment [DSPE], created under the eponymous 1946 statute. The CBI started out under the control of the Ministry of Home Affairs, but Granville Austin in Working a Democratic Constitution notes how the Prime Minister came to exercise far greater control over the Agency during Mrs. Gandhi's tenure at the helm (pages 190-191) and then went back to the Home Ministry under the Janata Government (pages 454-455). He also notes how the Agency was often used to carry out political vendetta in the 1970s, both by the Congress as well as the Janata Governments. The lack of autonomy in the CBI has been a consistent theme in the five decades since, perceived to be constantly trading allegiances, with echoes being seen by papers in the raids conducted in the office of the Delhi Chief Minister in 2015. Nobody likes being maligned, and the CBI itself made calls for greater autonomy with past directors advocating the cause for the Agency to have a statutory basis. The Supreme Court has also been sympathetic to these pleas. It expressed great displeasure upon learning that CBI recommendations had been changed at the behest of ministers in relation to the coal blocks allocation scam, and went ahead and conferred greater autonomy to the Agency in September 2013.  

So far so good. On 06.11.2013, then, the Guwahati High Court famously passed an order holding the CBI was without any legal basis. In an impeccably reasoned decision, the Court held that the CBI could not be located in the DSPE Act. The Guwahati High Court did find the CBI to be distinct from the DSPE after tracing its legislative history as found in the file notings itself (paragraphs 45-49), contrary to what the Union of India asserted. Such an independent police force which conducted investigations and inquiries required statutory backing, and could not be the product of a mere Executive Notification. It refused to lend weight to an argument made by the Union which effectively sought non-interference despite illegality as things had remained this way for decades. In another part of the decision, the Court traced the Constituent Assembly Debates on the subject to show how the Framers never intended to confer investigative powers upon a Central Agency as has been done today (paragraphs 51 - 68), but it did not go ahead and consider the legality of the DSPE itself. 

On 09.11.2013, in a hearing conducted at the residence of the then Chief Justice, the Supreme Court stayed the decision [order available here]. This was understandable and fair, as thousands of investigations and prosecutions would have been thrown into the lurch if the CBI was suddenly disbanded. The problem is the lack of activity that the petition has subsequently witnessed in the Supreme Court, which is where the issue of Constitutional Evasion comes in. The case [SLP (Civil) 34834/2013], along with connected petitions, has been listed a total of eight times since 2013. Long dates came between the filing of submissions etc with the stay remaining operative. The order passed on 15.02.2016 converted the case to Civil Appeal No. 1473/2016 and notes that the hearing was expedited, but no subsequent date was given. On 11.11.2016, applications for vacating the stay were dismissed. No likely date of next listing shows up on the case status webpage as of today.

By prolonging the stay and refusing to hear the matter, the Court is inadvertently supporting the claim of the Union of India that things should not be interfered merely because they have been so. Rather, it would be in the national interests for a speedy resolution of these issues of seminal constitutional importance, that plague the premier investigating agency of India.