The Supreme Court delivered a split verdict on the constitutional validity of Section 17A of the Prevention of Corruption Act. While Justice K.V. Viswanathan upheld the provision with safeguards, Justice B.V. Nagarathna dissented, calling it unconstitutional.
Thank you for reading this post, don't forget to subscribe!
NEW DELHI: The Supreme Court on Tuesday delivered a split verdict in the writ petition challenging the constitutional validity of Section 17A of the Prevention of Corruption Act, 1988, introduced through the 2018 amendment, with a split verdict by a two-judge Bench.
The judgment was delivered by a bench comprising Justice KV Viswanathan and Justice BV Nagarathna in a public interest litigation filed through advocate Prashant Bhushan.
Background: Section 17A of the Act
Section 17A mandates prior approval of the competent authority before any police officer can conduct an inquiry or investigation into decisions or actions taken by a public servant in the discharge of official functions. The provision was introduced to protect honest officers from frivolous or motivated prosecution, but was criticized for allegedly shielding corruption.
The challenge relied heavily on earlier Supreme Court rulings, particularly:
- Vineet Narain v. Union of India – holding that the executive cannot control or shut down investigations against itself.
- Subramanian Swamy v. Union of India – where the Court struck down Section 6A of the Delhi Special Police Establishment Act for creating unconstitutional protection for senior bureaucrats.
Justice KV Viswanathan’s Observations
Qualitative Difference Between Section 6A and Section 17A
Justice KV Viswanathan emphasized that there is a qualitative difference between the struck-down Section 6A and the present Section 17A. While Section 6A created an impermissible classification, Section 17A acts as a screening mechanism, not a blanket shield for illegal conduct.
“Striking down Section 17A would be like throwing the baby out with the bathwater,” Justice Viswanathan observed, cautioning that the remedy would be worse than the problem.
The Court highlighted that government officers act as limbs of the State while taking policy decisions. Without safeguards, they could be exposed to coercive investigations, arrests, and public humiliation, even when acting lawfully.
Justice Viswanathan noted that in the age of technology and social media, the reputational damage caused by arrests and court appearances is often irreversible, even if the officer is later exonerated.
Role of Lokpal and Lokayuktas
A crucial aspect of the ruling is the harmonious reading of Section 17A with the Lokpal Act. Justice Viswanathan held that:
- Complaints under Section 17A should first be routed to the Lokpal or Lokayuktas.
- The Lokpal acts as an independent gatekeeper, consistent with the principles laid down in Vineet Narain.
- The Lokpal may:
- Reject the complaint,
- Order a preliminary inquiry, or
- Forward the matter to the government for approval if a prima facie case is made out.
He also noted that even the Prime Minister is subject to scrutiny under parts of the Lokpal framework, reinforcing that Section 17A does not place anyone beyond accountability.
The Court reiterated a settled constitutional principle: mere possibility of misuse cannot be a basis for invalidating legislation.
Justice Viswanathan observed:
“The Constitution cannot give up because the issue is difficult.”
He further stated that constitutional validity cannot be tested on hypothetical scenarios, such as the repeal of the Lokpal Act or even the PC Act itself.
Directions Issued
While upholding Section 17A, the Court issued important safeguards:
- Prior approval must be routed through the Lokpal/Lokayuktas.
- Statutory timelines prescribed in the proviso to Section 17A must be strictly adhered to.
- Lokpal and Lokayuktas must record reasons while making recommendations to the government.
- Public servants under Section 17A can be subjected to the same rigor as other government functionaries, without prejudicing honest officers.
Justice KV Viswanathan held that:
- Section 17A of the Prevention of Corruption Act is constitutionally valid.
- The provision should be read harmoniously, not struck down.
- Striking it down would be regressive, potentially allowing unchecked coercive action against officers discharging lawful duties.
Dissent by Justice Nagarathna
Justice B.V. Nagarathna, in a dissenting opinion, held that Section 17A is unconstitutional and liable to be struck down. She ruled that no prior approval should be required for an investigation into corruption offences.
Justice Nagarathna described Section 17A as an attempt to resurrect the earlier protection under Section 6A, which had already been invalidated by the Supreme Court. According to her, the provision effectively shields corrupt public servants and undermines the fight against corruption.
She further held that the manner in which Section 17A operates suffers from inherent deficiencies, rendering it arbitrary and violative of constitutional principles.
Justice Nagarathna held that protecting honest officers cannot override the primary objective of preventing corruption, which she described as breeding inequality, lethargy, and institutional decay, particularly at higher levels of governance.
She pointed out that:
- Section 17A even bars a preliminary inquiry without approval, which is impermissible.
- Frivolous complaints can be addressed under Section 19 of the PC Act, making Section 17A unnecessary.
- The provision proceeds on an unwarranted assumption that police complaints are false or malicious.
She also noted that the class of higher public servants, who take major decisions and fall under the Directive Principles framework, has been disproportionately insulated from scrutiny.
The term “government” cannot be stretched to include the Lokpal or Lokayuktas. She also raised concerns about the future of Section 17A if the Lokpal Act is repealed.
She directed that the matter be placed before the Chief Justice of India for consideration by an appropriate larger Bench.
The hearing concluded on a lighter note, with Prashant Bhushan acknowledging the depth of judicial engagement and apologizing for earlier courtroom conduct. The Bench appreciated the assistance rendered by all counsel.
Solicitor General Tushar Mehta, smiling, remarked that it was a “very good judgment,” prompting laughter in court, followed by a sharp yet humorous response from Bhushan.
Appearance:
CPIL: Advocate Prashant Bhushan
Union government: Solicitor General Tushar Mehta
Case Title:
Centre for Public Interest Litigation v. Union of India
W.P.(C) No. 1373 of 2018
READ LIVE COVERAGE
Click Here to Read Our Reports on Corruption Act