What is ‘prior approval’, and why is it needed before investigating public officials accused of corruption?

Justice Bose held that prior approval was necessary, which the CID did not have when it opened the inquiry. Justice Trivedi held it was necessary to seek approval only to investigate offences committed after 2018, the year this requirement was introduced.

Prior approval requirement

In 2003, the Delhi Special Police Establishment Act, 1946, which governs agencies like the CBI, was amended. Under Section 6A, it was required to seek approval from the central government before investigating alleged offences under the Prevention of Corruption Act (PCA), 1988, if the employee in question held a rank higher than joint secretary.

The Supreme Court struck down this requirement in 2014. Four years later, the PCA was amended and a similar provision was introduced as Section 17A. Under this section, if a public servant commits an offence under the Act while discharging their official duties, investigators must receive approval from the central/ state government, or a competent authority to open an inquiry or investigation.

Challenge to provision

In 2018, the NGO Centre for Public Interest Litigation (CPIL) challenged the constitutionality of the previous approval requirement. It argued that it would be “extremely difficult” to determine if an offence was committed by a public official while they were discharging their duties if no investigation could be conducted in the first place. Placing this burden on police officers and investigating agencies would in effect protect corrupt officials, and the levels of corruption would rise.

The CPIL also pointed to the 2014 case in which the Supreme Court had struck down a similar requirement.

In July 2023, the case was listed before a Bench of Justices B V Nagarathna and Sanjay Karol.

‘Previous approval’ in SC

The case involving Chandrababu Naidu is not the first time that the SC has decided whether the ‘previous approval’ requirement should apply retrospectively. Last September, a Constitution Bench held that officials cannot claim immunity under Section 6A, even if the offence was committed before this provision was struck down. (CBI v R R Kishore)

In 2018, when former Delhi Police Commissioner Rakesh Asthana was being investigated for allegedly accepting bribes, then Additional Solicitor General P S Narasimha had opined that there was no need for prior approval to lodge an FIR.

The case against Asthana reached the Supreme Court in 2021 but was adjourned repeatedly without being heard, and was declared infructuous after Asthana retired in 2022.