Section 17A and the Constitutional Crossroads of Anti-Corruption Law
On January 13, the Supreme Court delivered a split verdict on the constitutional validity of Section 17A of the Prevention of Corruption Act, 1988, in Centre for Public Interest Litigation vs Union of India . The two-judge Bench—comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan —agreed on the seriousness of the issue but differed on the constitutional remedy. The disagreement exposes a deeper tension in Indian constitutional law: how to protect honest decision-making in government without erecting barriers that blunt the fight against corruption.
What Section 17A provides—and why it matters
Inserted in 2018, Section 17A requires prior approval from the appropriate government before any enquiry, inquiry or investigation can begin into alleged corruption arising from a public servant’s “recommendation” or “decision” taken in official duties. Only trap cases—where an official is caught accepting a bribe—are exempt. Critics argue that this front-end permission requirement places a lock at the very entry point of investigation, enabling the executive to delay or deny scrutiny into its own actions.
The constitutional challenge
Petitioners contended that corruption corrodes the rule of law and that allowing the executive to decide whether its own officials can be investigated creates a structural conflict of interest. Such a gatekeeping role, they argued, undermines investigative independence and violates Article 14’s guarantee of equality before the law. The challenge also invoked precedent, warning that Section 17A resurrects protections the Court had previously invalidated.
Precedent and principle
In Vineet Narain vs Union of India , the Court struck down the “Single Directive,” which required prior approval to investigate senior officials, holding that investigative discretion must not rest with the executive. Later, in Subramanian Swamy vs Director, CBI , a Constitution Bench invalidated Section 6A of the Delhi Special Police Establishment Act for shielding officials based on rank, finding it discriminatory and conducive to corruption. Petitioners argued that Section 17A is broader still, extending protection to all public servants.
The government’s defence
The Union distinguished Section 17A from earlier provisions, noting that it is a parliamentary enactment (not an executive instruction) and applies uniformly across ranks. The purpose, it argued, is to protect honest officers from frivolous complaints that could induce policy paralysis and deter bona fide decision-making.
Justice Nagarathna: the barrier is unconstitutional
Justice Nagarathna struck down Section 17A in its entirety. In her view, a requirement that forestalls even a preliminary inquiry revives executive protection the Court had already rejected. She highlighted the conflict of interest inherent in collective governmental decision-making: seeking approval from the same institutional ecosystem that made the decisions under scrutiny risks impeding impartial investigation and shielding wrongdoing.
Justice Viswanathan: save the law, change the decision-maker
Justice Viswanathan agreed that executive control over approvals is constitutionally suspect, but disagreed with striking down the provision altogether. He cautioned that eliminating prior screening could chill honest governance. His solution was institutional redesign: relocate the approval function away from the executive to an independent authority, notably the Lokpal of India . As an autonomous body operating in the same normative space, the Lokpal could serve as a neutral filter—preserving accountability without paralysing administration.
The core disagreement—and what it