In a powerful opinion during the Supreme Court’s split verdict on Section 17A of the Prevention of Corruption Act, Justice K.V. Viswanathan invoked the Bhagavad Gita to stress that personal integrity and honour are priceless for a public servant. He stated, “For a Self-Respecting Man, Death Is Preferable to Dishonour”.
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NEW DELHI: The Supreme Court of India has delivered a split verdict on the constitutional validity of Section 17A of the Prevention of Corruption Act, 1988, which mandates prior approval before any investigation into public servants relating to decisions taken in an official capacity.
The matter arose from a writ petition filed by the Centre for Public Interest Litigation, which challenged whether the statutory requirement of prior approval hampers independent investigations into corruption cases. A two-judge Bench comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan pronounced separate opinions, referring the matter to the Chief Justice of India for the constitution of an appropriate Bench.
Justice K.V. Viswanathan upheld the provision with safeguards, mandating that the Lokpal or Lokayukta provide recommendations before approval is granted, while Justice B.V. Nagarathna struck it down, holding it arbitrary and violative of Article 14, as it grants protection to certain public servants but not others. The matter has been referred to the Chief Justice of India for the constitution of a larger Bench.
Background of Section 17A
Section 17A was introduced through the Prevention of Corruption (Amendment) Act, 2018. Under this provision:
- No police officer can initiate an enquiry, inquiry, or investigation into offences under the Act against public servants related to official decisions without prior approval from the competent authority.
- An exception exists for cases involving on-the-spot arrests during acceptance or attempted acceptance of undue advantage.
The petitioner argued that Section 17A “effectively reintroduces a prior-approval regime similar to the one struck down” in earlier Supreme Court judgments like Vineet Narain v. Union of India (1998) and Subramanian Swamy v. CBI (2014), thereby violating Articles 14 and 21 of the Constitution.
A two-judge bench comprising:
- Justice B.V. Nagarathna
- Justice K.V. Viswanathan
pronounced separate and divergent opinions, resulting in a split verdict.
Justice K.V. Viswanathan’s Opinion
Justice Viswanathan held that Section 17A is constitutionally valid, provided that the grant or refusal of approval is guided by recommendations from the Lokpal or Lokayukta.
Key directions from his opinion include:
- Upon receipt of information under Section 17A, the competent authority must forward it to the Lokpal or Lokayukta, who may then undertake an inquiry and submit their recommendations.
- The approving authority must act in accordance with such recommendations.
- In cases where public servants are not under the Lokpal or Lokayukta, the authority must commission an independent investigative agency before granting or refusing approval.
- Authorities must adhere to the timeline prescribed under Section 17A.
- Lokpal/Lokayukta recommendations must clearly state reasons, ensuring transparency.
Emphasising the need to balance anti-corruption investigations with the protection of honest public servants, Justice K.V. Viswanathan underscored the constitutional importance of personal integrity and reputation, observing that for an upright officer, honour is more valuable than life itself.
Quoting from the Bhagavad Gita, Justice Viswanathan noted:
“Sambhaavitasya cha akeerti, maranaat atirichyate”
“For a self-respecting man, death is preferable to dishonour.”
Drawing further support from classical Indian philosophy, the judge also relied upon Tiruvalluvar’s Tirukkural, observing:
“Mayirnīppiṉ vāḻāk kavarimā aṉṉār
Uyirnīppar māṉam variṉ.”“Just as a yak, which is shorn of its wool does not survive,
A man of honour will not live if he loses it.”
Justice Viswanathan observed that
“for an honest person, personal integrity and reputation is priceless and is valued even higher than life”,
and held that Section 17A of the Prevention of Corruption Act, 1988 serves the legitimate purpose of protecting such honest officers from frivolous, motivated, or reputation-damaging investigations, while still permitting investigation through institutional safeguards.
Justice Viswanathan clarified that ensuring procedural safeguards for honest public servants does not dilute the fight against corruption, but rather strengthens the rule of law by preventing abuse of investigative power.
Justice Viswanathan emphasized that these measures do not amount to judicial legislation but align the provision with prior Supreme Court rulings. He stated:
“If in the process of examining the validity of the said provision (Section 17A), to avoid dichotomy in procedure and to align it with the pronouncements of this Court, certain safeguards are ensured for its implementation, that certainly does not tantamount to ‘substitution’ or ‘judicial legislation’.”
Justice B.V. Nagarathna’s Opinion
Contrastingly, Justice Nagarathna held that Section 17A violates Article 14 of the Constitution. Her reasoning included:
- Section 17A mandates prior approval only for certain public servants, creating arbitrariness and illegal classification based on the nature of duties.
- The provision forecloses even a basic inquiry or investigation without prior approval, thereby shielding potentially corrupt public servants, which is contrary to the object of the Act and the rule of law.
- Substituting the approving authority with Lokpal or Lokayukta cannot cure the unconstitutionality of the provision.
- Departmental approvals may be subject to bias, pressure, and conflict of interest, undermining fairness in investigations
Justice Nagarathna concluded that the provision attempts to reintroduce struck-down prior-approval mechanisms and is therefore unconstitutional. She remarked:
“The words Lokpal or the Lokayukta cannot be read into the word ‘Government’. Therefore, the expression ‘Government’ used in the said provision cannot be substituted… What would be the position if the 2013 Act is repealed? Section 17A cannot operate as suggested.”
Due to the split verdict, the Supreme Court has referred the matter to the Chief Justice of India for the constitution of a larger bench to examine the constitutional validity of Section 17A afresh.
Case Title:
Centre for Public Interest Litigation v. Union of India
W.P.(C) No. 1373 of 2018
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