The Supreme Court on Tuesday delivered a split verdict on the constitutional validity of Section 17A of the Prevention of Corruption Act, 1988, as inserted by the 2018 amendment, which mandates prior approval from the competent government authority before initiating any investigation against a public servant in relation to official acts or decisions.
The judgement was passed by the Bench of Justice BV Nagarathna and Justice KV Viswanathan. While Justice Nagarathna held the provision unconstitutional on the grounds that it contravened the fundamental objectives of the Act, Justice Viswanathan upheld Section 17A, albeit in a restricted interpretation, directing that sanction for investigation must be determined by independent anti-corruption authorities, such as the Lokpal or the State Lokayukta, rather than the executive. Justice Nagarthna further reintroduced a protective mechanism previously invalidated in Vineet Narain v. Union of India and Subramanian Swamy v. Director, CBI.
The matter has now been referred to the Chief Justice of India for the constitution of a larger bench to resolve the issue definitively.
Section 17A stipulates that no police officer shall conduct any inquiry or investigation into allegations against a public servant arising from decisions or recommendations made in official capacity without prior approval from the competent authority, except in cases involving on-the-spot arrests for acceptance or attempted acceptance of undue advantage. The provision also imposes timelines for decision-making, with a maximum of three months, extendable by one month under reasoned orders.
The challenge originated in a writ petition filed by the Centre for Public Interest Litigation, which argued that Section 17A reinstates executive control over investigations, creating a conflict of interest and contravening Article 14 of the Constitution.
The Counsel for the petitioner cited that prior sanctions for investigation had been struck down in Vineet Narain and Subramanian Swamy, emphasizing the risk of shielding corrupt public servants and obstructing accountability.
The Union Government, represented by Solicitor General Tushar Mehta, contended that Section 17A was a constitutionally permissible statutory filter aimed at preventing frivolous or vexatious complaints that could impede policy-making. The government maintained that the provision was narrowly tailored to protect bona fide decision-making, does not bar prosecution for substantive offences under the IPC, and aligns with established principles permitting administrative pre-screening, as reflected in Matajog Dobey v. HC Bhari.
The Bench engaged extensively with issues of separation of powers, the scope of executive discretion, and safeguards against abuse. Considerations included whether Section 17A would create structural inconsistencies between complaints routed through the police versus independent anti-corruption authorities, the balance between protecting honest public servants and ensuring probity, and compatibility with existing safeguards under Sections 17 and 19 of the Prevention of Corruption Act and the Lalita Kumari v. Govt. of UP framework for preliminary inquiries.
The final determination on Section 17A’s constitutionality now rests with a larger bench, which will examine its interplay with Articles 14, 19, and 21 of the Constitution, relevant precedents on executive sanction, and the practicalities of safeguarding both administrative efficiency and accountability.
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