Justice Bhuyan Opposes Veto on Anti-Corruption Probes - 2026-01-27

Justice Bhuyan Opposes Veto on Anti-Corruption Probes

In a pointed critique that resonates deeply within India's legal corridors, Supreme Court Justice Ujjal Bhuyan has voiced strong reservations against provisions in the Prevention of Corruption Act (PC Act) that he believes shield corrupt public servants from scrutiny. Speaking at a high-profile panel discussion on "The Changing Landscape of White-Collar Crime Investigations" during the International Legal Conference organized by the Supreme Court Advocates on Record Association (SCARA) in Panjim, Goa, on January 25, Justice Bhuyan argued that mandating prior governmental approval for investigations under Section 17A effectively acts as a veto, allowing "big players" to evade the law while minor offenders are pursued. His remarks extend to warnings against the misuse of the Prevention of Money Laundering Act (PMLA), critiques of stringent bail conditions leading to unjust incarceration, and a call for vigilance against selective prosecutions. More broadly, Justice Bhuyan underscored the Supreme Court's pivotal role in safeguarding constitutional rights, rather than endorsing executive overreach, amid discussions on judicial "polyvocality." These observations, delivered in the context of recent split verdicts and high-stakes cases, signal potential shifts in how white-collar crimes are investigated and adjudicated in India, compelling legal practitioners to reassess strategies in corruption and economic offense litigation.

The Conference Context

The International Legal Conference, hosted by SCARA, brought together legal luminaries to deliberate on evolving challenges in white-collar crime probes. Justice Bhuyan's session was particularly timely, coming on the heels of a divided Supreme Court bench's ruling on the constitutionality of Section 17A of the PC Act. Introduced via the 2018 amendments to fortify public servants against frivolous inquiries, Section 17A requires prior approval from a designated authority—typically the government—before launching investigations into corruption allegations against them. This provision has been contentious, with critics arguing it dilutes the anti-corruption framework established under the 1988 PC Act.

Justice Bhuyan referenced the recent split verdict by Justices BV Nagarathna and KV Viswanathan. Justice Nagarathna struck down the section as unconstitutional, deeming it a undue protection for corrupt officials that hampers accountability. In contrast, Justice Viswanathan opted to read it down, suggesting that prior approval decisions should vest with independent bodies like the Lokpal or Lokayukta, rather than the executive. This divergence highlights the ongoing tension between shielding honest officers from harassment and ensuring robust probes into graft. Justice Bhuyan's intervention adds a judicial voice to this debate, emphasizing practical implications for investigative agencies like the Central Bureau of Investigation (CBI) and state police.

The backdrop also includes the broader ecosystem of special laws combating economic crimes. The PC Act, enacted to curb bribery and abuse of office, has undergone scrutiny for its efficacy, with Justice Bhuyan calling for a "social audit" to evaluate whether it has met its objectives in curbing corruption. Similarly, the PMLA, a cornerstone of India's anti-money laundering regime since 2002, has faced backlash for its draconian provisions, especially post the Supreme Court's 2022 affirmation in Vijay Madanlal Choudhary v. Union of India, which upheld twin conditions for bail and expansive powers for asset attachment.

Challenging Section 17A: A Veto on Corruption Probes?

At the heart of Justice Bhuyan's address was a forthright dismissal of Section 17A's prior approval mandate. He opined that such a requirement "may not be appropriate" as it empowers the government to preempt investigations, potentially derailing probes into high-level corruption. Drawing from his perspective as a "student of law," Justice Bhuyan articulated:

"Prima facie, I am of the view, as a student of law, that seeking the prior approval of the competent authority, before you want to investigate itself, may not be appropriate. This will virtually amount to vetoing an impending investigation. We will end up going after the small fish and letting the big players out of the net."

This metaphor underscores a systemic flaw: the provision risks creating a two-tier justice system where influential figures receive de facto immunity. For corporate lawyers and in-house counsel advising public sector clients, this critique implies heightened vulnerability in corruption allegations. Investigations could stall if approvals are withheld, prompting more litigation over procedural validity. Moreover, it aligns with Justice Nagarathna's view that such safeguards disproportionately favor the accused, potentially violating equality under Article 14 of the Constitution.

Justice Bhuyan's call for a social audit of the PC Act is equally provocative. Evaluating the Act's impact—through metrics like conviction rates, deterrence effects, and public perception—could lead to legislative reforms. Legal professionals might anticipate amicus curiae submissions or PILs urging such an audit, especially given the Act's low conviction rates (hovering around 20-30% in many jurisdictions). This perspective not only critiques the law's design but also its implementation, urging a balance between protecting innocents and pursuing the guilty.

Cautioning Against PMLA Overreach

Shifting to the PMLA, Justice Bhuyan reiterated earlier concerns voiced during a 2024 book launch, emphasizing that the Act must not become a tool for extraneous objectives. Post-Vijay Madanlal Choudhary, PMLA's provisions—allowing arrest without prior complaint, attachment of properties, and reverse burden of proof—have been wielded aggressively by the Enforcement Directorate (ED). Justice Bhuyan acknowledged money laundering's threat to economic sovereignty but cautioned against routine application in garden-variety cases.

He stressed the need for "proper discretion" in enforcement, warning: investigative agencies "must be very fair" to avoid perceptions of ulterior motives. For compliance professionals and business leaders, this signals a judicial pushback against PMLA's expansion into non-financial crimes, such as political funding or unrelated economic offenses. The Act's seven-year maximum sentence, coupled with near-certain pre-trial detention, amplifies risks for accused persons, often leading to plea bargains or settlements to avoid prolonged battles.

Bail, Arrests, and Prolonged Incarceration

A particularly stinging observation targeted PMLA's bail regime under Section 45, which requires the court to be satisfied that the accused is not guilty and unlikely to reoffend—a reversal of the presumption of innocence. Justice Bhuyan highlighted the fallacy in treating bail as acquittal, noting:

"Unfortunately, what is happening in the country is that, like the layman, even the investigative agencies, and some of the law officers as well, they tend to react as if the grant of bail amounts to acquittal. In PMLA cases, the maximum conviction is seven years. If you keep a person in jail for three or four years without bail, and the conviction rate is less than 6%, only for them to be acquitted at the end, how do you justify that prolonged incarceration?"

Citing the Supreme Court's repeated directives that Section 45 must yield to Article 21 after a reasonable period, he distinguished between the validity and necessity of arrests. In the Arvind Kejriwal case, Justice Bhuyan ruled the politician's arrest by the CBI—timed suspiciously after ED proceedings—as illegal, illustrating how sequential agency actions can circumvent bail.

This has profound implications for defense practitioners, who may increasingly invoke Article 21 for interim relief, arguing undue hardship. With PMLA conviction rates indeed below 6% (per government data), the human cost of pre-trial detention—loss of livelihood, reputational damage—demands reform. Trial courts and high courts could see a surge in habeas corpus petitions emphasizing this jurisprudence.

The Perils of Selective Investigations

Justice Bhuyan extended his caution to the scourge of selective targeting under special laws like PMLA and PC Act. He decried instances where cases evaporate if the accused "shifts sides" opportunely, questioning whether agencies can cherry-pick prosecutions. "These are serious offences and they must be investigated and prosecuted. But it should not appear that the investigation is selective or targeted," he stated, warning that such practices erode the purpose of these statutes.

For policy watchers and arbitration experts, this raises alarms about politicization in white-collar probes, potentially affecting cross-border deals or extraditions. The judiciary's role in scrutinizing selectivity—via writs under Article 226 or 32—becomes crucial, ensuring equal application of law.

Navigating Polyvocality in the Apex Court

Addressing internal judicial dynamics, Justice Bhuyan tackled "polyvocality," the multiplicity of voices in a 34-judge Supreme Court sitting in multiple benches. While former Chief Justice DY Chandrachud viewed it as reflecting India's diversity, retired Justice RV Raveendran criticized it for undermining credibility through conflicting rulings. Justice Bhuyan cautioned that divergent benches could send "wrong signals" to lower courts, risking a scenario where outcomes hinge on bench composition.

He affirmed:

"The Supreme Court is not established to justify executive actions denying liberty or violation of human rights."

By prioritizing constitutional fundamentals—personal liberty, human rights—over ideological divides, polyvocality on core issues can be minimized, bolstering institutional trust. This is vital for international perceptions, facilitating extraditions and global legal cooperation.

Implications for the Justice System

Justice Bhuyan's discourse carries far-reaching implications. Legally, it may embolden challenges to Section 17A, perhaps culminating in a larger bench review of the split verdict. For PMLA, it advocates calibrated enforcement, potentially inspiring guidelines akin to those for arrests under the Bharatiya Nagarik Suraksha Sanhita. On selectivity, courts might impose transparency mandates on agencies, like disclosure of dropped cases.

In practice, corporate litigators must adapt: advising clients on PMLA risks now includes stress-testing for discretionary probes, while in-house teams prioritize compliance audits. The emphasis on Article 21 could accelerate default bail trends, reducing incarceration periods. Systemically, a social audit of the PC Act might spur parliamentary debate, aligning laws with efficacy data.

Broader impacts touch democracy: a credible judiciary deters corruption and upholds rule of law. As Justice Bhuyan noted, eschewing political biases for constitutional fidelity enhances global standing, encouraging foreign investment and cooperation.

Conclusion: Upholding Constitutional Safeguards

Justice Ujjal Bhuyan's Goa address is a clarion call for recalibrating India's anti-corruption arsenal. By decrying veto-like approvals, PMLA excesses, and selective justice, he reaffirms the judiciary's role as liberty's guardian. In an era of aggressive enforcement, these insights guide legal professionals toward principled advocacy, ensuring laws serve justice, not expediency. As the Supreme Court navigates polyvocality, unity on fundamentals will fortify its pedestal, inspiring confidence in a system that protects rights amid complexity. For stakeholders in business law, the message is clear: vigilance against misuse preserves the delicate balance between security and freedom.