A recent split verdict by a two-judge Bench of the Supreme Court has reopened a long-standing constitutional debate on how far the law should go in protecting honest public servants without weakening the fight against corruption. The disagreement centres on Section 17A of the Prevention of Corruption Act, 1988, a provision that makes prior government approval mandatory before investigating certain acts of public servants.
What is the Prevention of Corruption Act, 1988?
The Prevention of Corruption Act, 1988 (PCA) is India’s principal law dealing with corruption by public officials. Its origins lie in the recommendations of the Santhanam Committee, constituted by the Central government in 1962 under the chairmanship of K. Santhanam. The committee’s 1964 report called for stronger legal tools to deal with bribery and abuse of office.
The PCA consolidates offences relating to corruption and prescribes punishments for public servants who misuse their position. The law defines “public servant” broadly, covering government and local authority employees, judges, and anyone holding an office involving public duty. “Public duty” itself is defined expansively as a function in which the State or the community at large has an interest. Offences under the Act include bribery, taking undue advantage, and criminal misconduct.
What does Section 17A provide?
Traditionally, the PCA required prior government sanction only at the prosecution stage. Section 19 of the Act mandates such sanction before a court can take cognisance of offences against a public servant.
Section 17A, inserted by an amendment in 2018, goes a step further. It requires prior approval from the appropriate government before even initiating an inquiry or investigation into any offence alleged to have been committed by a public servant in relation to a decision taken or recommendation made in the discharge of official duties. The rationale was that fear of investigation for bona fide decisions was creating excessive risk aversion among officials.
How the Supreme Court has viewed similar protections earlier
The Supreme Court has historically been sceptical of provisions that shield certain classes of public servants from investigation. In Vineet Narain v. Union of India (1998), the Court struck down the “Single Directive”, an executive order that required prior approval before the CBI could investigate senior officials.
A similar fate befell Section 6A of the Delhi Special Police Establishment Act, which Parliament introduced in 2003 to require Central government approval for investigating officers of the rank of Joint Secretary and above. In Subramanian Swamy v. Director, CBI (2014), the Court held this provision violative of Article 14, which guarantees equality before the law.
The present case and the split verdict
The current controversy arose from a Public Interest Litigation filed by the Centre for Public Interest Litigation challenging the constitutionality of Section 17A. A two-judge Bench of the Supreme Court of India delivered a split verdict.
Justice K. V. Viswanathan upheld the need for prior approval, reasoning that it protects honest officers from frivolous and malicious complaints. He warned that without such protection, a “play-it-safe” culture could take hold in the bureaucracy, undermining effective governance. However, he placed an important condition: the approval process must involve an independent body. Reading Section 17A alongside the Lokpal and Lokayuktas Act, 2013, he held that approval should be based on a binding opinion of the Lokpal or Lokayukta, rather than being left solely to the government.
Justice B. V. Nagarathna, in contrast, declared Section 17A unconstitutional. She described it as “old wine in a new bottle”, indistinguishable in substance from protections struck down earlier. Applying Article 14, she held that the provision lacks both intelligible differentia and a rational nexus to its stated objective. In her view, adequate protection for honest officials already exists through Section 19, which requires sanction before prosecution.
Why the issue matters constitutionally
At the heart of the debate lies a tension between two constitutional values: the need to protect honest decision-making in administration, and the imperative of ensuring equality before the law and effective anti-corruption enforcement. Section 17A shifts the balance decisively in favour of executive control at the investigation stage, raising concerns about institutional bias and delay.
The split verdict reflects unresolved questions about whether investigative safeguards can coexist with constitutional guarantees, or whether they inevitably undermine them.
What happens next
Because of the split, the matter will now be placed before a larger Bench of the Supreme Court for an authoritative ruling. Its decision will have far-reaching implications for corruption investigations, bureaucratic accountability, and the balance of power between investigators and the executive.
Beyond the court: systemic reforms needed
Irrespective of the outcome, the debate highlights deeper systemic issues. Swift investigation, speedy trials, and timely punishment of guilty officials are essential to deterrence. At the same time, mechanisms to penalise false and malicious complaints are necessary to protect public servants from harassment. Without these complementary reforms, neither stricter laws nor greater protections alone can address the corruption challenge.
What to note for Prelims?
- PCA, 1988 deals with corruption offences by public servants.
- Section 17A requires prior approval before investigation.
- Section 19 mandates sanction before prosecution.
- Article 14 guarantees equality before law.
What to note for Mains?
- Tension between anti-corruption enforcement and protection of honest officials.
- Judicial approach to prior sanction and investigation-stage safeguards.
- Role of Lokpal and Lokayuktas in corruption control.
- Need for institutional reforms beyond legislative protection.
