The Supreme Court’s divided verdict on Tuesday on the constitutional validity of Section 17A of the Prevention of Corruption (PC) Act has once again brought into focus a long and unresolved legal battle over how far the state can go to shield its officials from criminal investigation.
With Justices BV Nagarathna and KV Vishwanathan giving separate opinions, the issue has now been referred to the Chief Justice of India for formation of a larger bench. This reference marks the latest chapter in a saga spanning more than five decades – marked by repeated attempts by the then government to create protective barriers around bureaucrats and equally persistent judicial resistance to any mechanism that presses the inquiry to the doorstep.
Basic question of prior approval before investigation
At the core of the controversy is a simple but consequential question: Can the executive insist on prior approval before preliminary investigation into allegations of corruption against public servants? Section 17A, inserted in the PC Act through the 2018 amendments, answers that question in the affirmative.
Section 17A was introduced in the PC Act with effect from July 26, 2018, which provides protection to all serving and retired public servants from investigation without prior approval, provided the alleged offense relates to recommendations made or decisions taken in official capacity. This provision removed the earlier distinction between senior and junior officers that existed under Section 6A of the Delhi Special Police Establishment (DSPE) Act, which was struck down by the Supreme Court in 2014.
The provision prohibits the police from conducting any inquiry, inquiry or investigation without the prior permission of the competent authority, except in cases involving on-the-spot arrest for taking or attempting to accept bribe.
Critics argue that such a prohibition attacks the very root of anti-corruption enforcement by allowing the executive to decide whether allegations can be investigated. On the other hand, the government has consistently defended the provisions needed to protect honest officials and prevent “policy paralysis”.
From Single Direction to Section 6A: First two rounds
The Supreme Court has faced this tension twice before.
The first example was the Single Directive of 1969, an executive directive that required prior government clearance before the Central Bureau of Investigation (CBI) could investigate senior officials. According to the government, the said instructions were issued to protect senior officials from vexatious interrogations and threats of investigation and to ensure that they are not harassed for taking honest decisions. It was said that the absence of such protection could adversely affect the efficiency and effectiveness of government institutions as officials would then avoid taking any decisions which could later lead to their harassment.
But in the case Vineet Narayan vs. Union of India (1997), a three-judge bench struck down this, saying that all persons accused of the same offense should be subject to the same investigative process, irrespective of their status or rank.
“If the conduct amounts to an offence, it should be promptly investigated and the offender against whom a prima facie case is made out should be promptly prosecuted so that the majesty of the law is preserved, and the rule of law is vindicated,” the court said, rejecting the Centre’s argument that the Single Direction applies only to certain class of officers who are decision makers. The top court also held the single directive invalid on the grounds of legislative competence, noting that the CBI’s powers conferred under the DSPE Act were interfered with through an administrative directive issued by the government.
Undaunted, the Center gave statutory backing to a similar protection by inserting Section 6A in the DSPE Act in 2003, which required prior approval for investigating officers of the rank of Joint Secretary and above.
Ten years later, it too was invalidated – this time by a five-judge Constitution bench in Subramanian Swamy vs. Director, CBI (2014) on the grounds that it violated Article 14 (equality) by creating an unfair classification and protecting those whose misconduct required immediate investigation. The court warned that allowing senior bureaucrats to control the initiation of investigations against them poses a serious threat to the rule of law. Terming Section 6A as “discriminatory”, the judgment said that “the protection in Section 6A has a tendency to protect the corrupt”.
Section 17A: Third incarnation
In July 2018, the Center again revived the pre-approval mechanism, this time by amending the PC Act. Unlike Section 6A, Section 17A applies equally to all public servants, removing the rank-based classification that had earlier proved fatal. But it goes further in one important respect – it also closes down preliminary investigations without prior approval, something the court had clearly frowned upon in earlier judgements.
While a period of four months is given to the competent authority under Section 17A to communicate its decision on granting sanction, the provision clarifies that no such sanction will be necessary for cases involving on-the-spot arrest of a person on the charge of accepting or attempting to accept any undue advantage for himself or any other person – borrowed from Section 6A of the DSPE Act.
Civil society organization Center for Public Interest Litigation (CPIL) had challenged the amendment in 2018 itself, arguing that it revives, in substance, if not form, the immunity system abolished in Vineet Narayan and Subramanian Swamy.
The challenge remained pending for years, even as the Supreme Court clarified in interim decisions that Section 17A would come into force with effect from July 26, 2018. In September 2023, a Constitution bench led by Justice Sanjay Kishan Kaul (retd) ruled that the court’s 2014 order had quashed the immunity of senior officials booked by the CBI in corruption cases between September 2003 and May 2014, effectively meaning that servants can be prosecuted in such public cases without government sanction.
Fractured decision and stakes
The long-pending challenge ended with a divided verdict on Tuesday. Justice Nagarathna struck down Section 17A as unconstitutional, holding that it violates Article 14, undermines the rule of law, and directly violates binding precedents. They found that the provision effectively revives the Single Directive and Section 6A in another form, suppresses scrutiny at the threshold, and is fraught with arbitrariness due to institutional bias, conflict of interest and lack of neutrality within government departments.
Justice Vishwanathan, however, cautioned against “throwing out the baby with the bathwater”. While acknowledging the dangers of executive interference, he held that a complete repeal of Section 17A would cause irreparable reputational damage to honest officials and trigger a “play it safe” syndrome, leading to policy paralysis. In his view, the provision can be constitutionally upheld if complaints are first investigated through preliminary inquiry through independent institutions such as Lokpal or Lokayukta.
Because of diametrically opposite findings it has now become necessary to refer to a larger bench.
The final outcome will have far-reaching consequences, not only for corruption cases, but also for the balance between accountability and administrative autonomy. On the one hand, there is the Supreme Court’s long-standing insistence that no office or rank can justify keeping corruption from being investigated. On the other hand, the State’s argument that the decision-making process in a complex modern administration cannot survive under the constant threat of criminal process triggered by foresight or political vendetta is false.
This is essentially the third round of litigation on the same issue, underscoring both the government’s persistence in reintroducing protective mechanisms and the court’s unresolved struggle to reconcile efficiency with constitutional accountability.
The reference to the larger bench ensures that the fight over Section 17A is not over yet. What is at stake is not just the fate of a provision, but a fundamental question about the architecture of India’s anti-corruption regime: should investigation be the rule and protection the exception, or vice versa?
