BREAKING| Supreme Court Delivers Split Verdict On Validity Of S.17A Prevention Of Corruption Act Mandating Prior Sanction For Investigation

A two-judge bench of the Supreme Court today delivered a split verdict on the constitutionality of Section 17A of the Prevention of Corruption Act, inserted by the 2018 amendment, which mandates that there should be a prior sanction from the Government to launch an investigation against a public servant under the Act.

While Justice BV Nagarathna held that Section 17A is unconstitutional, Justice KV Viswanathan refused to do so and instead read it down to hold that the question of sanction must be decided by the Lok Pal or the Lok Ayukta. In view of the divergence of opinion in the bench, the matter was directed to be placed before the Chief Justice of India for the constitution of an appropriate bench to decide the issue.

Justice Nagarathna observed that the provision was an attempt to "protect the corrupt."

"Section 17A is unconstitutional and it ought to be struck down. No prior approval is required to be taken. This provision is an attempt to resurrect what has been earlier struck down in Vineet Narain and Subramanian Swamy judgments. The requirement of prior sanction is contrary to the object of the Act, and it forecloses inquiry and protects the corrupt rather than seeking to protect the honest and those with integrity who really do not require any protection," Justice Nagarathna observed.

Justice Viswanathan held that an independent agency, which is free from the executive, must decide the question of sanction.  Therefore, he directed that the sanction must be decided by the Lok Pal/Lokayukta. Section 17A was read down to that extent.

"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," Justice Viswanathan observed.

Justice KV Viswanathan observed that striking down the provision will amount to "throwing the baby out with the bath water" and that unless honest and public servants are shielded from frivolous investigations, a "policy paralysis" will set in. He emphasised that a fine balance has to be maintained between the need to protect a public servant from mala fide cases and the importance of upholding probity in public offices.

"Section 17A has no vice of invalid classification. The possibility of abuse is no ground to strike down Section 17A," the judgment pronounced by Justice Viswanathan stated.

"If Section 17A is struck down, complaints routed through Lok Pal will face screening and complaints routed through police will not face screening. This will create a dichotomy and structural imbalances," Justice Viswanathan observed.

The judgment arises from a writ petition filed by the Centre for Public Interest Litigation before the Supreme Court challenging the constitutionality of amendments introduced to the Prevention of Corruption Act, 1988 in 2018, with the principal challenge directed against newly inserted Section 17A. Judgment was reserved on August 6, 2025.

Section 17A provides that no police officer can initiate any enquiry, inquiry or investigation against a public servant in relation to any decision or recommendation made in discharge of official functions without prior approval of the competent authority of the Central or State Government.

It reads :

17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties. —
No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval—
(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;
(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:
Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month

Advocate Prashant Bhushan, appearing for the petitioner, argued that this requirement of prior approval for investigation reintroduced a protection that had already been struck down by the Supreme Court in earlier cases.

He relied on the judgments in Vineet Narain v. Union of India and Dr. Subramaniam Swamy v. Director, CBI, where the Court had invalidated executive and statutory provisions requiring prior sanction before investigation against senior public servants.

Bhushan contended that Section 17A suffers from the same defect because it allows members of the executive, including ministers who may themselves be involved in the decision-making process, to decide whether an investigation should commence, creating a conflict of interest.

For the Union, Solicitor General Tushar Mehta countered that the earlier judgments did not prohibit all forms of prior approval. He argued that Vineet Narain and Subramaniam Swamy turned on issues of classification under Article 14 and that Section 17A was qualitatively different and narrowly tailored. Mehta submitted that Section 17A only protected decision-making in official functions and was intended to prevent frivolous and vexatious complaints that could lead to policy paralysis.

He relied on the decision in Matajog Dobey v. HC Bhari to argue that statutory filters to screen complaints against public servants were constitutionally permissible. He also placed before the Court a Standard Operating Procedure to explain how sanctions or approvals are processed, stating that detailed, reasoned orders are passed and that where ministers are involved, the approving authority would be the Governor or the President under the Business of Allocation Rules.

During the hearings, the bench raised concerns on both sides.

Justice Viswanathan, while referring to the earlier striking down of Section 6A of the Delhi Special Police Establishment Act in the Subramaniam Swamy judgment, observed that even if a provision similar to Section 6A were re-enacted today with wider coverage, it could still fail constitutional scrutiny, and indicated that Section 17A may also have to be tested on the ground of manifest arbitrariness under Article 14.

He also questioned whether protection under Section 17A would bar investigation for IPC offences, to which the Solicitor General responded that such situations would be rare.

Justice Nagarathna noted that not every official decision amounts to corruption and emphasised the need to protect honest officers from the stigma and fear arising from registration of FIRs. She indicated that objections raised by the petitioner related more to implementation than to the validity of the provision itself.

Bhushan responded that there are already existing safeguards under the PC Act, such as Section 17, which provides that only a certain level officer can investigate into the allegations. Another safeguard is Section 19, which provides that no Court can take cognisance unless there is a sanction for prosecution from the competent authority. Bhushan suggested that, instead of executive approval, safeguards such as a preliminary inquiry as contemplated in the Lalita Kumari judgment, could be adopted, with oversight by a court or the Lokpal.

SG Mehta stated that Lalita Kumari judgment was confined to the interpretation of Section 154 of the CrPC and that fearless governance required statutory protection for bona fide decision-making.

On the issue of deletion of Section 13(1)(d)(ii), Bhushan ultimately accepted the Union's submission that the amended Section 7 of the PC Act continues to cover situations where a public servant abuses position to obtain pecuniary advantage.

To be updated after the judgment is uploaded.

Case no. – W.P. (C) No. 1373/2018

Case Title – Centre for Public Interest Litigation v. Union of India