The Supreme Court today has delivered a split verdict on the constitutional validity of Section 17A of the Prevention of Corruption Act, 1988, which mandates prior approval before conducting any inquiry or investigation against a public servant for decisions taken in the discharge of official duties.
While Justice K.V. Viswanathan held that Section 17A could be sustained only if the approval process is subjected to mandatory independent scrutiny through the Lokpal/Lokayukta or an equivalent independent mechanism, Justice B.V. Nagarathna dissented, holding that Section 17A is unconstitutional in its entirety as it forestalls inquiry and defeats the object of the anti-corruption law.
In view of the difference of opinion between the two Judges, the constitutional question remains unresolved, and the issue was directed to be placed before an appropriate Bench for authoritative determination.
Justice K.V. Viswanathan: Section 17A is Constitutional
Justice K.V. Viswanathan, delivering his opinion, upheld the constitutional validity of Section 17A of the Prevention of Corruption Act, 1988, as introduced by the 2018 Amendment, while reading the provision in a manner that mandates independent screening of corruption allegations prior to grant or refusal of approval.
At the outset, Justice Viswanathan framed the central issue as whether Section 17A, which requires prior approval before initiating inquiry or investigation against a public servant for decisions taken in discharge of official duties, violates the rule of law or Article 14 of the Constitution.
Tracing the jurisprudential thread from Vineet Narain and Subramanian Swamy, Justice Viswanathan emphasised that the core principle emerging from those decisions is that the executive cannot, on its own, foreclose inquiry into allegations of corruption, as such power squarely belongs within the domain of independent investigative agencies. Any mechanism that enables the executive to block inquiry without independent scrutiny, he noted, poses a serious threat to the rule of law.
While distinguishing Section 17A from the erstwhile Section 6A of the DSPE Act, Justice Viswanathan observed that unlike Section 6A, which applied broadly to corruption offences, Section 17A is narrowly tailored to offences arising from recommendations or decisions taken by public servants in discharge of official duties, and excludes cases of arrest on the spot. He held that Section 17A does not suffer from the vice of invalid classification, as it applies uniformly to all public servants based on the nature of the act, not rank or status.
At the same time, Justice Viswanathan found the Standard Operating Procedure (SOP) placed by the Union Government to be wholly inadequate, noting that it does not provide for any independent examination of allegations before approval is granted or refused. He observed that the concerns articulated in Subramanian Swamy, namely that investigations must not be throttled at the threshold and must remain fair, free from influence, and capable of uncovering material, were not addressed by the SOP.
Rejecting the argument that Section 17A must be struck down in its entirety, Justice Viswanathan cautioned that doing so could have regressive consequences, including exposing bona fide administrative decision-making to frivolous and hindsight-driven criminal scrutiny, leading to policy paralysis. He stressed that honest public servants require a basic assurance that well-intentioned decisions would not automatically trigger criminal investigation years later.
To reconcile Section 17A with constitutional requirements, Justice Viswanathan held that independent screening is indispensable. He reasoned that the Lokpal framework, enacted contemporaneously with the 2018 amendments, provides a constitutionally acceptable mechanism for such scrutiny. Accordingly, he held that information received under Section 17A must be forwarded to the Lokpal or Lokayukta, which may conduct a preliminary inquiry and make a recommendation. Crucially, such recommendation must be binding on the competent authority while deciding whether approval under Section 17A should be granted or refused.
For public servants outside the Lokpal’s jurisdiction, including certain bodies and institutions, Justice Viswanathan directed that the competent authority must commission an independent investigative agency to screen the allegations before taking a decision. He clarified that this approach preserves the balance between protecting honest officers and ensuring accountability, while aligning Section 17A with the constitutional mandate laid down in earlier precedents.
Justice Viswanathan concluded that Section 17A can be constitutionally sustained only if read in this manner, and that courts are empowered to interpret statutory provisions to save their validity and harmonise them with binding constitutional principles.
Justice Nagarathna: Section 17A Is Unconstitutional
Justice B.V. Nagarathna, in a detailed dissent, held that Section 17A is unconstitutional and must be struck down, as it revives, in statutory form, what this Court had already invalidated in Vineet Narain and Subramanian Swamy.
She held that the fundamental issue is not who grants approval, but whether any prior approval should exist at all. In her view, Section 17A prevents even a preliminary inquiry, thereby protecting the corrupt rather than the honest, who are already safeguarded at the later stage of sanction.
Justice Nagarathna rejected the interpretative approach of reading Lokpal-based scrutiny into Section 17A, holding that courts cannot rewrite legislation to save it from unconstitutionality. She highlighted inherent defects in the provision, including institutional bias, conflict of interest, and the practical reality that governmental decisions are collective in nature, making selective approvals arbitrary.
Emphasising that corruption is antithetical to the rule of law and constitutional governance, she held that a provision which allows credible allegations to go unexamined at the threshold frustrates the very purpose of the Prevention of Corruption Act.
Appearances
Sr. Adv. Prashant Bhushan
SG Tushar Mehta
