Inclusion of Section 17A of Prevention of Corruption Act, 1988

Source: Supreme Court 

Why in News? 

The bench of Justices BV Nagarathna and KV Viswanathan in the case of Centre for Public Interest Litigation v. Union of India (2025) delivered a split verdict on the constitutionality of Section 17A of the Prevention of Corruption Act, 1988, inserted by the 2018 amendment, which mandates prior sanction from the Government to launch an investigation against a public servant. 

What was the Background of Centre for Public Interest Litigation v. Union of India (2025) Case? 

• The writ petition was filed by the Centre for Public Interest Litigation challenging the constitutionality of amendments introduced to the Prevention of Corruption Act, 1988 in 2018. 
• The principal challenge was directed against newly inserted Section 17A. 
• 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. 
• Advocate Prashant Bhushan, appearing for the petitioner, argued that this requirement reintroduced a protection already struck down by the Supreme Court in earlier cases. 
• Bhushan relied on judgments in Vineet Narain v. Union of India and Dr. Subramaniam Swamy v. Director, CBI, where the Court had invalidated provisions requiring prior sanction before investigation against senior public servants. 
• Bhushan contended that Section 17A allows members of the executive, including ministers who may themselves be involved in decision-making, to decide whether an investigation should commence, creating a conflict of interest. 
• Solicitor General Tushar Mehta countered that the earlier judgments did not prohibit all forms of prior approval 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 Matajog Dobey v. HC Bhari to argue that statutory filters to screen complaints against public servants were constitutionally permissible. 

What were the Court's Observations? 

Justice BV Nagarathna's View: 

• Justice Nagarathna held that Section 17A is unconstitutional and ought to be struck down. 
• She observed that the provision was an attempt to "protect the corrupt" rather than protecting honest officers. 
• "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 was found contrary to the object of the Act as it forecloses inquiry and protects the corrupt rather than seeking to protect the honest and those with integrity. 

Justice KV Viswanathan's View: 

• Justice Viswanathan held that 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. 
• He read down Section 17A to provide that an independent agency, free from the executive, must decide the question of sanction. 
• Justice Viswanathan observed that striking down the provision would amount to "throwing the baby out with the bath water." 
• He emphasized that unless honest public servants are shielded from frivolous investigations, a "policy paralysis" will set in. 
• "Section 17A has no vice of invalid classification. The possibility of abuse is no ground to strike down Section 17A." 
• He noted that if Section 17A is struck down, complaints routed through Lok Pal will face screening while complaints routed through police will not, creating a dichotomy and structural imbalances. 

Divergence and Reference: 

• 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. 
• During hearings, the bench raised concerns on both sides regarding constitutional validity under Article 14. 
• Justice Nagarathna noted that not every official decision amounts to corruption and emphasized the need to protect honest officers from the stigma and fear arising from registration of FIRs. 
• Bhushan suggested that existing safeguards such as Section 17 (level of officer who can investigate) and Section 19 (sanction for prosecution) already exist, and proposed preliminary inquiry with oversight by court or Lokpal instead of executive approval. 

What is Section 17A of the Prevention of Corruption Act, 1988? 

About: 

• Section 17A was inserted into the Prevention of Corruption Act, 1988 through the 2018 amendment. 
• It mandates that there should be prior sanction from the Government to launch an investigation against a public servant under the Act. 
• The provision states 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. 
• The competent authority refers to the appropriate authority of the Central or State Government. 

Rationale Behind Section 17A: 

• The provision was introduced to prevent frivolous and vexatious complaints against public servants. 
• It aimed to protect public servants from harassment through malafide investigations. 
• The intent was to shield honest officers who make bona fide decisions in discharge of official duties. 
• Proponents argued it was necessary to prevent policy paralysis that could arise from fear of investigation. 
• The provision sought to create a statutory filter to screen complaints before full-fledged investigation.