Today, On 6th August, The Supreme Court has reserved its verdict on petitions challenging the 2018 amendments to the Prevention of Corruption Act. It questioned how governance benefits when honest decisions are attacked by frivolous online allegations against officers.
The Supreme Court reserved its judgment in a significant case that challenges the 2018 amendments to the Prevention of Corruption Act, 1988, especially the introduction of Section 17A and changes made to Section 13.
The matter heard by a bench of Justice B.V. Nagarathna and Justice K.V. Viswanathan.
Solicitor General Tushar Mehta, appearing for the government, informed the Supreme Court that he had held detailed discussions with the CBI Director and Joint Director, following which he submitted a short note.
He also placed on record updated data regarding the composition of CBI officers from various backgrounds, addressing concerns raised earlier by Advocate Prashant Bhushan about lateral entries.
Mehta further stated that a detailed Standard Operating Procedure (SOP) is in place to define which authority will take cognisance of specific matters, ensuring a clear sense of responsibility within the agency.
Justice Viswanathan asked,
“One more question, if an FIR is already registered and a subsequent statement implicates a public servant, how is that situation handled by the agency?”
Responding to the issue, Solicitor General Tushar Mehta explained that Section 17A of the Prevention of Corruption Act would be applicable in such cases, and the investigating agency would assess the matter accordingly.
He mentioned that he had reviewed detailed orders in similar cases, mostly involving the CBI, where referrals generally came from the government or public sector undertakings rather than private complainants. He also pointed out that the classification in the matter had been decided by Subramanian Swamy.
As the court went through judgments, Justice Viswanathan remarked,
“Vineet Narain struck down the provision for being arbitrary. That led to Subramanian Swamy going before a 5 judge bench.”
Justice Nagarathna noted,
“The provision was struck down due to improper classification excluding or including certain people. Section 17A doesn’t have such classification.”
Solicitor General Tushar Mehta explained that the Supreme Court in the Vineet Narain case had struck down the Single Directive, after which Section 6A was introduced.
Justice B.V. Nagarathna noted that the Court had not examined the issue of sanction at that time. SG Mehta clarified that Section 17A of the Prevention of Corruption Act is a narrowly defined provision. Unlike the earlier Section 6A, which applied only to central government employees, Section 17A now extends to all public servants.
He added that the exception under this provision is broad and not limited only to trap cases or recovery of cash; it also covers situations involving any form of undue advantage, for which prior approval is not required. This, according to him, ensures that the law is aligned with a proper statutory framework.
When Justice Nagarathna sought clarification on who falls under clause (c) of the provision, SG Mehta responded that it includes Ministers and Chief Ministers, and in such cases, the competent authority is the Governor, who may act under Article 163 of the Constitution without being bound by the advice of the Council of Ministers.
He further mentioned that the issue of classification based on the position of a public servant had also been considered in a previous case.
Justice Nagarathna commented,
“This is an issue that can now be examined.”
Solicitor General Tushar Mehta addressed the contention that Section 17A of the Prevention of Corruption Act contradicts the Supreme Court’s ruling in the Subramanian Swamy case, clarifying that his submissions were in response to that argument.
Justice B.V. Nagarathna observed that the specific issue regarding Section 17A has not yet been conclusively decided or struck down by the Court. SG Mehta further pointed out that the broader question of whether a screening mechanism like prior sanction can exist was never directly adjudicated.
Senior Advocate Prashant Bhushan countered that the justification currently being advanced for prior sanction was the same as before, even though it previously applied only to officers of Joint Secretary rank and above. In response, SG Mehta remarked that even if the repealed Section 6A were to be reintroduced with broader coverage to include all officers, it would still be constitutionally invalid.
Justice Nagarathna commented,
“17A is narrow in the sense that it was in relation to any decision made. 6A includes any offence committed.”
Solicitor General Tushar Mehta argued that Section 19 of the Prevention of Corruption Act does not relate to the discharge of official duty, and even when sufficient material is available, courts may be restrained from taking cognizance an approach upheld by a Constitution Bench of five judges. Referring to the Matajok Dubey judgment, he explained that even if the investigating agency has gathered relevant evidence, courts can be barred from taking cognizance.
Under the Criminal Procedure Code, even a constable has the authority to conduct raids on senior officers, which justifies the need for a screening mechanism like prior sanction.
He submitted that the claim of manifest arbitrariness has been addressed, as public servants form a distinct and reasonable classification. Section 17A, he noted, is narrowly crafted and does not offer blanket protection like the repealed Section 6A. He pointed out that whether it is the judiciary or the executive, both make decisions that may not please everyone, and in the current system, even a hired person can file a criminal complaint.
Therefore, a filter or screening mechanism like prior sanction is not contrary to Indian jurisprudence, as long as the government can justify it when challenged in court. He also informed the bench that a Standard Operating Procedure (SOP) is in place.
Clarifying the process, SG Mehta said that approvals under Section 17A lie with the concerned ministry, while sanctions under Section 19 are handled by a designated panel. Once a chargesheet is prepared, the ministry, which also has the power to dismiss the officer, may initiate a departmental inquiry based on the available evidence. He added that CBI data shows that around 60% of sanction requests are approved, while 40% are denied.
In response, Senior Advocate Prashant Bhushan pointed out that fewer than 500 complaints have been filed each year over the past six years.
SG Mehta replied that decisions to grant or deny approval can be subjected to judicial scrutiny, especially in the current era of judicial activism, where complainants often approach the courts using the Right to Information (RTI) Act when approval is withheld. Bhushan, however, stated that he was unaware of any such legal challenges, as most complainants are not even informed when sanction is denied.
Justice Viswanathan asked,
“If IPC offences like Sections 420 or 409 are involved can those proceed independently? The bar applies to PC Act via Section 17A.”
Mehta answered,
“If the act isn’t in discharge of official duty like fabricating documents, it would fall under IPC, not need 17A approval.”
Justice Nagarathna asked,
“So Section 17A applies only to actions done in discharge of official duty?”
Solicitor General Tushar Mehta defended the constitutional validity of Section 17A of the Prevention of Corruption Act by arguing that offences purely under the Indian Penal Code are uncommon and usually arise from specific decisions or recommendations.
He emphasised that official duty is essential for invoking Section 17A, which provides only a preliminary safeguard. Mehta stated that the provision has been upheld as constitutionally valid due to its narrow and specific scope, meant to protect honest officers without shielding the corrupt.
He clarified that judicial interpretations have shown that Section 17A does not violate principles laid down in earlier rulings, such as Lalita Kumari, and is only a matter of interpreting Section 154 of the CrPC. He maintained that the provision aims to ensure fearless governance by allowing officers to take bold decisions without fear of unwarranted raids or harassment.
In response, Advocate Prashant Bhushan argued that larger constitutional bench decisions had already rejected the same arguments now being raised, pointing to key precedents. He also contended that high-level corruption often stems from decisions made under ministerial pressure, particularly in large government contracts, and such cases require independent investigation without preliminary screening.
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Justice Nagarathna remarked,
“But decisions generally move bottom up, not top down.”
Bhushan responded,
“Giving sanction powers to a minister or their delegate effectively blocks investigation against that very minister.”
Justice Viswanathan pointed out,
“Similar structure exists under Section 197 CrPC and Section 19 of the PC Act.”
Bhushan explained,
“Sanction for investigation differs from prosecution. By the time prosecution is sought, evidence has already been collected. Refusing sanction at that stage carries different weight. Most acts of corruption by public servants are tied to their decision making or recommendations, they misuse their authority. There’s no real difference between Section 6A and 17A.”
He argued,
“The distinction being made is superficial as most corrupt acts are linked to official decisions. Such provisions will throttle corruption investigations. Decision making will be frozen.”
Justice Nagarathna questioned,
“How does it help governance if honest decisions are targeted by frivolous allegations online? Where do such officers go?”
Bhushan replied,
“Section 17A doesn’t prevent that, it only stops a preliminary inquiry without prior approval.”
Justice Nagarathna followed up,
“But why should honest officers face such harassment at all?”
Bhushan responded,
“This exact issue was settled by a five-judge bench in Subramaniam Swamy.”
He further said,
“Leaving the power to the government will lead to conflict of interest.”
He pointed to the same issue in the judgment of Subramaniam Swamy.
He explained,
“If lordships is concerned in protecting honest officers, then in my opinion letting the higher officer conduct a preliminary inquiry and then they go to the court or lokayukt which is a independent body is better than the government, which would lead to conflict of interest. They will never inquire the involved with them in decision making.”
He concluded,
“Almost all act of corruption would be related to their decision making and recommendation power and therefore it’s not a valid basis of classification of 6A from 17A.”
The court has now reserved its judgment on this matter.
Case Title: Centre for Public Interest Litigation vs Union of India
Case Number: Writ Petition (Civil) No. 1373 of 2018
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