PC Act | Split Verdict on Constitutionality of Section 17A: Supreme Court Refers Matter to Larger Bench

“Section 17A is in fact a resurrection of Section 6A of the DSPE Act, 1946 though in a different avatar, in other words, it is old wine in a new bottle... Hence, Section 17A is liable to be struck down.”— In a seminal ruling, the Supreme Court of India, comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan, delivered a split verdict regarding the constitutional validity of Section 17A of the Prevention of Corruption Act, 1988, ultimately referring the matter to the Chief Justice of India for the constitution of a larger Bench.

The Judicial Schism: To Save or To Strike?

The Division Bench was seized of a Writ Petition filed by the Centre for Public Interest Litigation (CPIL) challenging the validity of Section 17A, introduced by the 2018 Amendment. The provision mandates prior approval from the Central or State Government before any police officer can conduct an enquiry, inquiry, or investigation into offences alleged to have been committed by a public servant relatable to recommendations made or decisions taken in the discharge of official duties.

While Justice K.V. Viswanathan upheld the provision by "reading it down" to mandate a screening by the Lokpal/Lokayukta, Justice B.V. Nagarathna held the provision unconstitutional in its entirety, terming it violative of Article 14 and the precedents set in Vineet Narain and Subramanian Swamy.

“Civil servants should have the necessary freedom to take administrative decisions and express their views fearlessly without any threat of frivolous or vexatious complaints.”

Justice Viswanathan’s View: The Constructive Approach via Lokpal

Justice Viswanathan, in his opinion, acknowledged the necessity of protecting honest public servants from "policy paralysis" and frivolous prosecutions. He rejected the argument that the provision should be struck down merely because of the possibility of abuse. However, he conceded that the current Standard Operating Procedure (SOP), which allows the Government to act as the gatekeeper without independent screening, failed the test of Vineet Narain and Subramanian Swamy.

Instead of striking the law down ("throwing the baby out with the bathwater"), Justice Viswanathan adopted a constructive approach. He directed that the "approval" mechanism under Section 17A must be aligned with the Lokpal and Lokayuktas Act, 2013. He held that the information regarding the offence must be forwarded to the Lokpal (for Centre) or Lokayukta (for States). The independent Inquiry Wing of these bodies would conduct the preliminary inquiry. Crucially, he held that the recommendation of the Lokpal/Lokayukta regarding the grant or refusal of approval would be binding on the Government.

“The panacea of striking down will turn out to be worse than the disease. Instead, the correct course is to find whether within the framework of law the mischief... could be addressed.”

Justice Nagarathna’s Dissent: "Judicial Legislation" and the Shield for Corruption

Justice B.V. Nagarathna took a diametrically opposite view, holding that Section 17A is fundamentally destructive of the Rule of Law. She observed that the provision creates an impermissible classification between public servants who take decisions/make recommendations and those who do not, violating Article 14. Relying heavily on the Constitution Bench judgment in Subramanian Swamy v. Director, CBI (2014), she held that a prior approval regime at the stage of preliminary inquiry forestalls investigation and effectively shields corrupt officials.

Justice Nagarathna explicitly rejected Justice Viswanathan’s approach of substituting the "Government" with the "Lokpal." She termed this "judicial legislation," noting that the Court cannot rewrite the plain text of the statute where the Parliament intentionally vested power in the Government. She argued that shifting the authority to the Lokpal does not cure the fundamental unconstitutionality of blocking an investigation at the threshold.

“Corruption is anathema to rule of law and to the spirit of the Constitution and to good governance.”

The Problem of "Policy Bias"

A significant portion of Justice Nagarathna’s judgment focused on the concept of "Policy Bias." She noted that if the very department that formulated a policy is tasked with granting approval for an investigation into that policy, there is an inherent conflict of interest (nemo judex in re sua). She argued that the Government cannot be expected to be neutral when its own officials are under the scanner, leading to a situation where approval would inevitably be denied to protect the department's reputation.

Due to the divergence in views—with one Judge upholding the provision with significant reading down and the other striking it down as unconstitutional—the Bench passed an order directing the Registry to place the matter before the Hon’ble Chief Justice of India for constituting an appropriate Bench to resolve the conflict.

Date of Decision: January 13, 2026