New Delhi: Is prior sanction mandatory for a probe against a government official? Faced with this question, a two-judge bench of the Supreme Court delivered a split verdict Thursday on the constitutional validity of Section 17A of the Prevention of Corruption Act.
The provision was introduced through an amendment in 2018.
The sharp disagreement between Justice K.V. Viswanathan and Justice B.V. Nagarathna brought into focus a long-standing concern over prosecution under the anti-corruption law: how to protect honest bureaucratic decision-making without insulating the corrupt from scrutiny.
Given the divergent opinions, the two-judge bench, as per procedure, directed that the matter be placed before the Chief Justice of India for constitution of an appropriate bench to resolve the issue authoritatively.
At the heart of the split verdict lies a jurisprudential disagreement.
Justice Viswanathan held that the objective of preventing frivolous and vexatious complaints is constitutionally legitimate and that the law can be salvaged by grafting an independent screening mechanism onto it.
As he put it, “A constitutional court in this scenario cannot throw up its hands in despair and say that it is caught between Scylla and Charybdis—between a rock and a hard place.”
Justice Nagarathna, by contrast, held that the defect in Section 17A goes to its very root. In her view, once the court strikes down similar protections as unconstitutional, Parliament cannot reintroduce them in a modified form, nor can the judiciary rewrite the statute to make it palatable.
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Provision under challenge: Section 17A
Section 17A of the Prevention of Corruption Act mandates that no police officer shall conduct any enquiry, inquiry, or investigation into an offence allegedly committed by a public servant under the Act without “the previous approval” of the competent authority, where the allegation relates to “any recommendation made or decision taken by such public servant in discharge of his official functions or duties.”
Depending on the cadre of the public servant, the approval must come from the Union government, the state government, or the authority vested with the power to remove that official from service.
The provision prescribes a time frame of three months to grant or refuse approval, extendable by an additional month with recorded reasons.
It carves out an exception for “trap cases”, where a public servant is caught red-handed while accepting or attempting to accept an undue advantage.
The central government has consistently defended Section 17A, arguing that without such a safeguard, honest officers would be paralysed by fear of post facto criminal investigations and bona fide policy or administrative decisions would suffer as a result.
Petitioner’s challenge
The challenge to Section 17A was brought by the Centre for Public Interest Litigation (CPIL), represented by Advocate Prashant Bhushan.
The petition argued that the provision is unconstitutional, arbitrary, and violative of Articles 14 and 21 of the Constitution.
According to the petitioner, Section 17A is effectively a resurrection of legal protections already struck down by the Supreme Court.
Bhushan relied heavily on landmark judgments such as Vineet Narain v. Union of India and Dr Subramaniam Swamy v. Director, CBI, where the top court invalidated executive and statutory requirements of prior sanction at the stage of investigation, including the infamous “Single Directive” under Section 6A of the Delhi Special Police Establishment Act.
The core of his argument was that Section 17A creates a direct conflict of interest by allowing the executive, often comprising ministers and senior officials who may be connected to the very decisions under scrutiny, to decide whether an investigation should even begin.
The CPIL petition also pointed to data indicating that approval for investigation had been refused in a substantial proportion of cases, suggesting that the law was being used as a shield rather than a filter.
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Justice Viswanathan: Upheld provision, but read it down
Justice Viswanathan upheld the constitutional validity of Section 17A, thereby rejecting the argument that it suffers from impermissible classification or arbitrariness. “Possibility of abuse is no ground to strike down Section 17A. The Constitution cannot throw hands up in (the) air and say it is caught between a rock and a hard place,” he said.
The judge reasoned that invalidating Section 17A altogether would expose honest public servants to coercive and frivolous criminal processes, discouraging them from taking decisive administrative actions.
Striking down the provision, he warned, would be akin to “throwing out the baby with the bathwater,” with the cure being worse than the disease.
Emphasising the reputational harm caused by criminal investigations, he noted: “Object of 17A was not to condone illegal acts, but to have a screening mechanism. Bhagavad Gita says ‘for self respecting man death is more preferable than disrepute’. In this age of technology and social media, the act of parading in court etc is irreversible even if proven innocent later.”
However, Justice Viswanathan acknowledged a serious flaw in the existing framework: the lack of an independent screening authority.
In his view, the executive cannot be the final arbiter of whether a probe should proceed. To remedy this, he read down Section 17A and directed that the question of prior approval be decided by an independent constitutional authority—Lokpal at Centre, and Lokayukta at state level.
“Section 17A is constitutionally valid subject to the condition that the sanction must be decided by the Lok Pal or the Lok Ayukta of the State,” he held, adding that the recommendation of these bodies would be binding.
Justice Nagarathna: Declared provision unconstitutional
Justice Nagarathna took a fundamentally different view, striking down Section 17A in its entirety. She held that the requirement of prior approval at the pre-investigation stage “forestalls an enquiry” and ends up protecting the corrupt rather than safeguarding the honest.
“There would many a times also arise conflict of interest inasmuch as the higher officers of a department may have had a vital role in the making of a recommendation or taking a decision either individually or collectively by a meeting of minds,” she observed.
Rejecting the argument that the provision is merely a procedural safeguard, she concluded that Section 17A is a direct resurrection of previously invalidated protections.
“Section 17A is in fact a resurrection of Section 6A [of DSPE Act]… though in a different avatar, in other words, it is old wine in a new bottle,” she said.
Justice Nagarathna was particularly critical of the idea of judicially substituting the government with the Lokpal or Lokayukta. According to her, such an exercise amounts to impermissible judicial legislation, as the statute itself clearly vests the power of approval in the executive.
She also highlighted structural concerns, observing that the nature of government functioning makes the approval process inherently biased.
“The nature and functioning of government departments… make the process of grant of approval under Section 17A marred by lack of objectivity, neutrality and fairness,” she held, concluding that the provision fails the test of constitutional reasonableness.
(Edited by Amrtansh Arora)
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