Supreme Court Delivers Split Verdict On Constitutional Validity Of Section 17A Of Prevention Of Corruption Act Mandating Prior Sanction For Investigation

The Court was hearing a writ petition filed by the Centre for Public Interest Litigation, questioning whether the statutory requirement of prior approval impermissibly restricts independent investigation into corruption offences.

A Bench comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan pronounced separate and divergent opinions, leading to a reference of the matter to the Chief Justice of India for the constitution of an appropriate Bench.

The challenge arose in the backdrop of earlier Constitution Bench judgments which had invalidated similar executive or statutory protections on the ground that they impeded independent investigation into corruption offences.

Background

Section 17A was introduced by the Prevention of Corruption (Amendment) Act, 2018. The provision bars any police officer from conducting an enquiry, inquiry, or investigation into offences under the Act where the alleged offence is relatable to a recommendation made or decision taken by a public servant in discharge of official functions, without prior approval of the competent authority.

The provision, however, carves out an exception for cases involving arrest on the spot while accepting or attempting to accept undue advantage.

The petitioner contended that Section 17A effectively reintroduces a prior-approval regime similar to the one struck down by the Supreme Court in Vineet Narain and Others v. Union of India and Another (1998) and Subramanian Swamy v. Director, Central Bureau of Investigation and Another (2014), thereby violating Articles 14 and 21 of the Constitution and undermining the rule of law.

Court’s Observation

Findings Of Justice K.V. Viswanathan

Justice K.V. Viswanathan held that Section 17A of the Prevention of Corruption Act, 1988, as inserted by the Prevention of Corruption (Amendment) Act, 2018, is constitutionally valid, subject to the condition that the grant or refusal of approval by the competent authority under Section 17A would depend on the recommendation of the Lokpal, and of the Lokayukta in case of States.

While recommending certain changes, Justice Viswanathan directed that upon receipt of information under Section 17A, the Union of India or the State Governments and the competent authorities contemplated under Section 17A must immediately forward such information to the Lokpal or the Lokayukta, as the case may be, and that the Lokpal/Lokayukta may undertake an inquiry on such information in accordance with their respective statutes and forward their recommendation to the appropriate authority.

It was further directed that the authority competent to approve Section 17A would be bound to act in accordance with such recommendation insofar as the grant or refusal of permission is concerned.

Justice Viswanathan also addressed situations involving bodies or public servants not covered under the jurisdiction of the Lokpal. It was observed that Section 17A(c) could arise in such cases, and that, where such a scenario presents itself, the authority competent to remove the public servant would, before granting or refusing approval, commission an appropriate independent investigative agency to screen the information received and act in accordance with the recommendation of such agency.

The opinion also directed that the time-limit stipulated in the proviso to Section 17A shall apply, and that the authorities concerned shall act in accordance with the time-line prescribed therein.

It was additionally directed that the Lokpal/Lokayukta, while forwarding their recommendation, shall set out reasons for such recommendation.

“If in the process of examining the validity of the said provision (Section 17A), to avoid dichotomy in procedure and to align it with the pronouncements of this Court, certain safeguards are ensured for its implementation, that certainly does not tantamount to 'substitution' or 'judicial legislation”, Justice Viswanathan concluded.

Findings Of Justice B.V. Nagarathna

Justice B.V. Nagarathna, contrarily, held that Section 17A of the Prevention of Corruption Act, 1988, is liable to be struck down as violative of Article 14 of the Constitution, on the ground that it mandates prior approval only for a class of public servants who have the responsibility of making a recommendation or taking a decision in discharge of official duties, while not doing so for other public servants, thereby creating an illegal classification based on the nature of duties.

Justice Nagarathna further held that Section 17A is an attempt to reintroduce, in a different form, the “Single Directive” and Section 6A of the Delhi Special Police Establishment Act, 1946, which had been struck down in Vineet Narain and Subramanian Swamy, and that Section 17A was therefore liable to be struck down for attempting to obviate binding decisions of larger Benches.

In her opinion, Justice Nagarathna underscored that Section 17A is invalidated by arbitrariness in its operation, as it forecloses even a bare inquiry/enquiry/investigation without prior approval, under the garb of preventing prejudice, and thereby creates a likelihood of shielding corrupt public servants of a particular level and higher, which was held impermissible and contrary to the objects of the Act and rule of law.

It was further held that the objective of protecting honest officers is not a valid ground to sustain a prior-approval regime at the inquiry/enquiry/investigation stage, as such a regime was held to be fundamentally opposed to the objects and purpose of the Prevention of Corruption Act, 1988.

On statutory interpretation, Justice Nagarathna held that the expressions “Government” and “of the authority competent to remove him from his office” in Section 17A cannot be substituted by judicial interpretation with “Lokpal” or “Lokayukta”, and that shifting the approving authority would not cure the unconstitutionality.

She further held that, having regard to the functioning of government departments, the approval process under Section 17A is marred by a lack of objectivity, neutrality and fairness. Specific drawbacks identified included policy bias, absence of safeguards against intra-departmental pressures and undue influence, difficulties in the appropriate exercise of discretion in policy implementation, and the possibility of conflict of interest.

While explaining why the mechanism suggested by Justice Viswanathan, for the operation of Section 17A as a constitutionally valid provision by involving the Lokpal and the Lokayukta, was unacceptable to her, Justice Nagarathna concluded: “This is for two reasons: firstly, because the words Lokpal or the Lokayukta cannot be read into the word “Government”. Therefore, the expression “Government” used in the said provision cannot be substituted by the words “the Lokpal” as well as “the Lokayukta” by reading the same into Section 17A of the Act. Secondly, what would be the position if the 2013 Act is to be repealed? Then in such a situation, Section 17A cannot be operated as suggested.”

Conclusion

In view of the divergent opinions, the Bench directed the Registry to place the matter before the Chief Justice of India for the constitution of an appropriate Bench to decide the issues afresh.

Cause Title: Centre for Public Interest Litigation v. Union of India (Neutral Citation: 2026 INSC 55)

Appearances

Petitioner: Senior Advocate Prashant Bhushan, Anurag Tiwary, Advocate

Respondent: Tushar Mehta, Solicitor General of India, Aishwarya Bhati, Additional Solicitor General
with Advocates Kanu Agrawal, Astha Singh, Bhuvan Kapoor, Shreya Jain, Poornima Singh, Aman Mehta, Rajat Nair and Others

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