Section 17A Of Corruption Act: SC delivers split verdict
Sanction rule for probing public servants under fire
New Delhi: A two-judge Bench of the Supreme Court has given a split decision on the validity of Section 17A of the Prevention of Corruption Act, a provision introduced in 2018 that makes prior government approval mandatory before initiating an investigation against a public servant for acts connected with official decision making. Justice B V Nagarathna struck down the provision as unconstitutional, holding that it undermines the very purpose of anti-corruption law.
In contrast, Justice K V Viswanathan declined to invalidate Section 17A, instead narrowing its scope by directing that the decision on sanction must rest with an independent body such as the Lokpal or the Lokayukta, rather than the executive. Owing to the divergent views, the matter has been placed before the Chief Justice of India for reference to a larger Bench.
In a strongly worded opinion, Justice Nagarathna said Section 17A effectively shields wrongdoing under the guise of protecting honest administration. She held that the requirement of prior approval before even commencing an enquiry revives safeguards that the court had earlier invalidated and runs counter to the objective of the anti-corruption framework. According to her, the provision shuts the door on investigation at the threshold and ends up protecting the corrupt, rather than officers acting with integrity.
“The requirement of prior sanction is contrary to the object of the Act, and it forecloses enquiry and protects the corrupt rather than seeking to protect the honest and those with integrity who really do not require any protection,” Justice Nagarathna observed. Justice Viswanathan, however, took the view that the provision could be sustained if insulated from executive control. He reasoned that some form of prior scrutiny is necessary to prevent frivolous or mala fide complaints that could paralyse governance, but such scrutiny must be exercised by an independent authority.
Reading down Section 17A, he held it constitutionally valid only on the condition that sanction decisions are taken by the Lokpal at the Union level or the Lokayukta in the states.
Warning against a blanket invalidation, Justice Viswanathan observed that striking down the provision altogether would risk discouraging bona fide decision making in public administration. He said the mere possibility of misuse was not a sufficient ground to declare the law unconstitutional and noted that removing the filter entirely could create inconsistencies, with complaints routed through the Lokpal undergoing scrutiny while those initiated through the police facing none.
“If Section 17A is struck down, complaints routed through the Lokpal will face screening and complaints routed through police will not face screening. This will create a dichotomy and structural imbalances,” Justice Viswanathan observed.
The ruling arose from a writ petition filed by the Centre for Public Interest Litigation challenging the 2018 amendments to the Prevention of Corruption Act, with the primary attack directed at Section 17A.
