ON JANUARY 13, 2025, a Division Bench of the Supreme Court comprising Justices B.V. Nagarathna and K.V. Viswanathan delivered a split verdict on the constitutionality of Section 17A of the Prevention of Corruption Act, 1988, (‘PCA) a provision that requires prior governmental approval before investigating corruption allegations against public servants when such offenses relate to official recommendations or decisions made in the discharge of their duties.
This provision, inserted through the Prevention of Corruption (Amendment) Act, 2018, became the focal point of intense constitutional scrutiny, with the petitioner arguing that it represents nothing less than the “third incarnation” of unconstitutional protections that the Court had already struck down twice before in landmark judgments.
What is Section 17A of the Prevention of Corruption Act?
Section 17A of the PCA mandates that no police officer shall conduct any enquiry, inquiry, or investigation into any offense alleged to have been committed by a public servant under the Act where the alleged offense is related to any recommendation made or decision taken by such public servant while discharging official functions or duties, unless the police have obtained previous approval from specified authorities.
The provision carefully delineates the approval authorities based on the nature of employment. For persons employed in connection with the affairs of the Union at the time the offense was alleged to have been committed, approval must come from the Union Government. For those employed in connection with the affairs of a State, the State Government must grant approval. For any other person, the authority competent to remove such a person from office at the time of the alleged offense holds the power of approval.
The provision carefully delineates the approval authorities based on the nature of employment.
The provision includes two important qualifications through its provisos. The first proviso exempts cases involving on-the-spot arrest of a person on charges of accepting or attempting to accept undue advantage, commonly known as trap cases. The second proviso imposes a temporal discipline on the decision-making process, requiring that the concerned authority convey its decision within three months, extendable for reasons recorded in writing by a further period of one month.
‘Section 17A constitutional only if prior approval mechanism filtered through Lokpal or Lokayukta’: Justice Viswanathan
Justice K.V. Viswanathan preserved Section 17A from constitutional invalidity by applying the doctrine of ‘reading down’. The essence of his approach was to recognize that while the provision, as written and currently implemented, suffers from serious constitutional infirmities, these defects can be remedied not by striking down the provision entirely but by reading into it procedural safeguards that align it with constitutional principles and earlier Supreme Court precedents.
Justice Viswanathan held that Section 17A is constitutionally valid only if the prior approval mechanism is filtered through an independent screening body, specifically the Lokpal at the Central level or the Lokayukta at the State level, whose recommendation must be treated as binding on the government.
Justice Viswanathan undertook a careful re-reading of two landmark precedents that had struck down earlier versions of investigative protection for public servants - Subramanian Swamy v. Director, Central Bureau of Investigation (2014) and Vineet Narain v. Union of India (1997).
First, he distinguished Section 17A from Section 6A of the Delhi Special Police Establishment Act, 1946, which had been struck down by a five-judge Constitution Bench in Subramaniam Swamy . Section 6A had applied only to employees of the Central Government at the level of Joint Secretary and above, along with equivalent officers in certain Public Sector Undertakings, thereby creating an explicit status-based classification. Section 17A, by contrast, is facially status-neutral, applying across the board to all public servants regardless of their rank or position in the administrative hierarchy. This eliminates any classification based solely on bureaucratic status that had proven fatal to Section 6A. Moreover, Section 6A had covered any offense alleged to have been committed under the 1988 Act, subject only to a narrow exception for trap cases. Section 17A is far more narrowly tailored in its application. It operates only when the alleged offense is relatable to a recommendation made or decision taken by the public servant in the discharge of official functions or duties.
Further, in Vineet Narain, a three judge bench of the Supreme Court had struck down the Single Directive, an executive instruction issued to the CBI regarding the modalities of initiating inquiries against certain categories of civil servants. Justice Viswanathan emphasized that Vineet Narain had identified two distinct vices in that directive.
First, it was an executive instruction that purported to fetter statutory investigative powers conferred on the CBI by Parliament. This defect does not affect Section 17A, which is a validly enacted statutory provision passed by Parliament rather than an executive instruction. Second, and more fundamentally, Vineet Narain had emphasized that any mechanism for screening complaints before investigation must rest with an independent expert body and that the final decision on whether to investigate must remain with the investigating agency itself, not with any external authority.
Justice Viswanathan's solution lay in reading Section 17A in conjunction with the Lokpal and Lokayuktas Act, 2013.
‘Union’s SOP lacks provision for independent examination by specialised body’: Justice Viswanathan
On the procedural safeguards surrounding Section 17A's implementation, the Union government had produced a Standard Operating Procedure that had been circulated by the Ministry of Personnel, Public Grievances and Pensions in September, 2021. The SOP provides for stage-wise processing of information received by a police officer and includes a detailed checklist for submitting proposals. Justice Viswanathan found this SOP to be wholly unsatisfactory, amounting to nothing more than a compilation of documents without any provision for independent examination by a specialized or impartial body. The SOP contemplates that the police officer will forward the proposal to the appropriate government or authority, which will then make a decision based on the materials submitted, with no requirement that the government commission any independent inquiry or subject the proposal to any form of objective screening.
‘A permissible reading down of Section 17A’: Justice Viswanathan
Justice Viswanathan's solution lay in reading Section 17A in conjunction with the Lokpal and Lokayuktas Act, 2013, which had established independent statutory bodies for inquiring into allegations of corruption against public functionaries. He noted that the Law Commission of India, in its 254th Report examining the Prevention of Corruption (Amendment) Bill, 2013, had actually recommended that the proposed Section 17A should require approval not from the government but from the Lokpal in cases of public servants employed in connection with the affairs of the Union, and from the Lokayukta in cases of public servants employed in connection with the affairs of a State. This recommendation was subsequently modified when the matter went to the Rajya Sabha Select Committee based on misconceived concerns about Article 311 of the Constitution.
Justice Viswanathan held that the only way to sustain the validity of Section 17A is to require that information received under Section 17A by the appropriate government must be forwarded to the Lokpal in the case of Central Government employees or the Lokayukta in the case of State Government employees, and that their recommendation must be binding on the government. He emphasized that this interpretation does not amount to rewriting the statute but rather represents a permissible reading down to save the provision from unconstitutionality.
Central to Justice Viswanathan's reasoning was a recognition of the crucial role that civil servants play in the functioning of democratic governance and the genuine threat that frivolous or vexatious complaints pose to effective administration. He expressed concern about the "chilling effect" that the threat of corruption investigations can have on honest officers attempting to discharge their duties with integrity and initiative. The judgment cautioned that if every administrative decision could be subjected to criminal investigation based on complaints that might be motivated by political considerations, personal vendettas, or simple disagreement with policy choices, a dangerous "play-it-safe syndrome" would inevitably emerge within the bureaucracy. Officers would become risk-averse, avoiding any decision that might potentially expose them to allegations years later when examined with the benefit of hindsight and perhaps through a jaundiced lens.
Approval process in Section 17A inherently arbitrary’: Justice Nagarathna
Justice B.V. Nagarathna held that Section 17A is an unconstitutional resurrection of previously invalidated protections and must be struck down entirely, rejecting the majority's attempt at salvaging it through interpretative reconstruction. Justice Nagarathna's reasoning rested on six interconnected grounds, ultimately concluding that the provision represents nothing less than "old wine in a new bottle" that cannot be saved through judicial ingenuity.
The judgement began by establishing that Section 17A replicates the fundamental vice of both the Single Directive struck down in Vineet Narain and Section 6A invalidated in Subramanian Swamy. Justice Nagarathna analyzed both precedents to demonstrate that their ratios extended far beyond the narrow grounds of executive overreach or status-based classification. In Subramanian Swamy, the five-judge Constitution Bench had emphasized that the essence of police investigation is skillful inquiry and collection of material and evidence in a manner that does not forewarn the potential culpable individuals. The requirement of previous approval from the Government necessarily resulted in indirectly putting the officers to be investigated on notice before commencement of investigation. Even more problematically, if the CBI was not allowed to verify complaints through even a preliminary inquiry, it could not collect sufficient material even to make an informed request for approval to the Government. Justice Nagarathna emphasized that this fundamental defect persists under Section 17A because a police officer cannot conduct any inquiry before seeking approval, rendering the approval process inherently arbitrary.
‘Section 17A creates an artificial difference between senior and junior officers, thus violates Article 14’: Justice Nagarathna
Justice Nagarathna disagreed that Section 17A is genuinely status-neutral and therefore distinguishable from the invalidated Section 6A. While the provision appears facially neutral in applying to all public servants, she argued that it creates substantive classification through its operative language. Only senior officers make "recommendations" or "decisions" in the true administrative sense, while lower-level staff perform clerical or mechanical tasks. The phrase "relatable to any recommendation made or decision taken" effectively shields the higher bureaucracy while leaving others unprotected. She invoked the principle from Subramanian Swamy that corrupt public servants "are birds of the same feather and must be confronted with the process of investigation and inquiry equally" regardless of their hierarchical position. The test for Article 14 requires both intelligible differentia and rational nexus to the legislative object, and Section 17A fails on both counts because corruption by senior versus junior officers harms public interest equally, and if the goal is protecting honest officers, Section 19 of the Act, which requires sanction for prosecution after investigation, already provides this protection at the appropriate stage.
The test for Article 14 requires both intelligible differentia and rational nexus to the legislative object, and Section 17A fails on both counts.
‘Section 17A perpetuates policy bias’: Justice Nagarathna
Section 17A negates the efficacy of the PCA by potentially protecting dishonest officers through denial of approval. Justice Nagarathna cited data from the Union’s affidavit showing that in CBI cases, approval was refused in 41.3 percent of instances. Invoking the principle laid down in Subramanian Swamy v. Manmohan Singh (2012), she noted that any anti-corruption law must be interpreted in a fashion that strengthens rather than weakens the fight against corruption, and where two interpretations are available, courts must accept the one that seeks to eradicate corruption rather than perpetuate it.
Drawing on administrative law principles from landmark cases like A.K. Kraipak v. Union of India (1969) and Mohinder Singh Gill v. Chief Election Commissioner (1977), Justice Nagarathna identified profound structural defects in governmental screening that render Section 17A fundamentally arbitrary. She referred to "policy bias" to explain that officials in a department are inherently interested in defending their policies and lack the objectivity necessary for impartial evaluation of complaints.
When a tender award or policy decision is questioned, the same department that formulated the policy cannot neutrally assess whether investigation is warranted. Further, administrative decisions are rarely the product of individual action but rather result from collective institutional processes involving multiple levels of file notings and approvals.
Civil servants act as "limbs of the Government" as established in A. Sanjeevi Naidu v. State of Madras (1970), she noted, making decisions through collaborative institutional processes. This creates an impossible situation where a single officer cannot be isolated for investigation when recommendations are institutional products, and where the approving authority may have participated in the very decision under scrutiny, violating the principle of nemo judex in re sua.
‘Reading down Section 17A violates fundamentals of statutory interpretation’: Justice Nagarathna
Justice Nagarathna vigorously rejected the reading down approach as impermissible judicial legislation that violates fundamental canons of statutory interpretation. She emphasized that the literal rule of interpretation requires that words be given their natural, ordinary meaning unless such meaning produces absurdity. Section 17A explicitly vests approval power in "Government" at the Union or State level, or in the "authority competent to remove." The General Clauses Act of 1897 defines "Government" as the Executive. Substituting "Lokpal" for "Government" violates this plain statutory language without any textual ambiguity that might justify interpretative reconstruction. She cited Subramanian Swamy's own holding that reading down applies only when the vice can be severed without rewriting the statute, and here the entire approval mechanism is vested in the government, making severance impossible without rendering the section inoperative. Moreover, she raised the hypothetical vulnerability that if the Lokpal Act were repealed or amended to remove public servants from its jurisdiction, Section 17A as interpreted by the majority would collapse entirely, demonstrating that the interpretation depends on an external statutory framework rather than the inherent meaning of Section 17A itself.
‘Corruption is a human rights violation’: Justice Nagarathna
Justice Nagarathna invoked the United Nations Convention Against Corruption, which India ratified in 2011, particularly Articles 6(2) and 36, which mandate specialized, independent anti-corruption bodies free from undue influence. She noted that corruption is not merely a punishable offense but constitutes a human rights violation in itself, undermining rule of law and perpetuating inequality by diverting services from vulnerable populations. She argued that any provision that forecloses investigation at the threshold, even preliminary inquiry, represents intolerable accommodation of corruption that no interpretative gymnastics can constitutionally validate. The judgement emphasized that existing safeguards in Section 17, which restricts investigation to senior police officers, and Section 19, which requires sanction for prosecution after investigation, already provide adequate protection for honest officers without creating the prior approval barrier that Section 17A erects.
The split verdict leaves Section 17A in constitutional limbo which the Chief Justice of India will refer to a larger bench to hear the matter afresh.