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...

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

Amisha Shrivastava

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