Supreme Court’s Split on Section 17A of the PC Act: Shield for Honest Officers or Barrier to Corruption Probes?

On January 13, a two-judge Bench of the Supreme Court of India 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 Bench, comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan, was united in recognising the gravity of the issue but divided on the constitutional answer. At stake is a foundational question: how should Indian law balance the need to protect honest public servants from harassment with the imperative of ensuring that corruption is investigated swiftly and independently?

What Section 17A says, and why it is controversial

Section 17A, inserted into the Prevention of Corruption Act in 2018, bars any police officer from conducting an enquiry, inquiry or investigation into alleged corruption linked to a public servant’s “recommendation” or “decision” taken in the discharge of official duties, without prior approval of the appropriate government. Only trap cases—where a public servant is caught red-handed while accepting a bribe—are exempt.

Critics argue that this provision places a lock at the very entry point of corruption investigations. By making prior government approval mandatory even before a basic inquiry, they say, the law risks allowing the executive to stall or block scrutiny into its own functioning.

The challenge before the Court

The petitioners contended that corruption is fundamentally incompatible with the rule of law and that allowing the government to decide whether its own officials should be investigated creates a clear conflict of interest. Vesting such gatekeeping power in the executive, they argued, undermines investigative independence and weakens the constitutional promise of equality before the law under Article 14.

The challenge was also rooted in precedent. The petitioners argued that Section 17A effectively resurrects protections for public servants that the Supreme Court itself had struck down earlier.

The shadow of earlier landmark rulings

In “Vineet Narain vs Union of India”, the Court had invalidated the “Single Directive”, an executive instruction that required prior approval before investigating senior officials. The ruling emphasised that the decision whether to investigate must rest with the investigative agency, not the executive. The judgment came against the backdrop of the N.N. Vohra Committee report, which exposed deep links between politicians, bureaucrats and criminal networks.

Later, Parliament attempted to restore a similar protection through Section 6A of the Delhi Special Police Establishment Act. This too was struck down by a Constitution Bench in “Subramanian Swamy vs Director, CBI”, which held that shielding officials based on status violated Article 14 and encouraged corruption by insulating powerful actors from scrutiny.

The petitioners argued that Section 17A is even broader: unlike Section 6A, which applied only to senior officers, it extends protection to all public servants.

How the government defended the law

The Union government sought to distinguish Section 17A from the earlier invalidated provisions. It argued that the Single Directive was merely an administrative instruction, not a law enacted by Parliament. It also pointed out that Section 6A was struck down because it created a discriminatory classification based on rank, whereas Section 17A applies uniformly to all public servants.

According to the government, the provision is necessary to protect honest officers from frivolous or motivated complaints that could paralyse decision-making in administration.

Justice Nagarathna’s view: the barrier itself is unconstitutional

Justice Nagarathna agreed with the petitioners and struck down Section 17A as unconstitutional. In her view, the requirement of prior approval “forestalls an enquiry” and, in effect, protects the corrupt. She held that the provision revives a form of executive protection that the Court had already rejected in “Vineet Narain” and “Subramanian Swamy”.

She also highlighted the structural conflict of interest inherent in the law. Decisions in government are often taken collectively, within departments and hierarchies. Requiring approval from the same institutional ecosystem to investigate those decisions, she reasoned, is likely to impede impartial inquiry and allow corruption to remain unchecked.

Justice Viswanathan’s view: save the law by changing who decides

Justice Viswanathan agreed that leaving the power of approval with the government would render Section 17A unconstitutional. However, he parted ways with Justice Nagarathna on the remedy.

He held that prior approval, in itself, is not unconstitutional. Striking down the provision entirely, he warned, could lead to “policy paralysis”, with honest officers fearing investigations for bona fide decisions. His solution was to relocate the screening function away from the executive and vest it in an independent body.

Pointing to the Lokpal of India, Justice Viswanathan suggested that an independent anti-corruption authority could act as a neutral filter. Since the Lokpal Act and the PC Act operate in the same normative field, he reasoned, the Lokpal’s recommendations could bind the government and preserve both accountability and administrative efficiency.

The core disagreement: strike down or read down

At the heart of the split is a constitutional disagreement about where the real problem lies. For Justice Nagarathna, the question was whether prior approval should exist at all before an investigation begins. For Justice Viswanathan, the issue was not the existence of a filter, but who controls it.

This divergence reflects a deeper judicial tension: when a law threatens constitutional values, should courts invalidate it outright, or attempt to save it by reading it down and reshaping its operation?

What happens next

Because of the split verdict, the matter has been referred to the Chief Justice of India for the constitution of a larger Bench. That Bench will now have to decide whether Section 17A is an impermissible barrier to corruption investigations, or whether it can be salvaged by insulating the approval process from executive control.

The outcome will have far-reaching implications—not only for anti-corruption enforcement, but for how Indian constitutional law balances administrative freedom with the uncompromising principle that no one is above the law.