SC split on validity of prior sanction bar under anti-corruption law

A two-judge Bench of the Supreme Court on Monday gave 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.

 

The provision bars police from conducting any enquiry, inquiry or investigation into offences linked to official decisions or recommendations of a public servant without prior approval of the competent government authority, subject to limited exceptions such as on-the-spot arrests for accepting bribes.

 

Appearing for the petitioner, Prashant Bhushan argued that Section 17A reintroduced a layer of executive protection that the court had already dismantled in earlier rulings.

 

He contended that allowing the executive, often comprising those involved in the very decisions under scrutiny, to decide whether an investigation should begin creates an inherent conflict of interest.

 

Bhushan maintained that sufficient safeguards already exist under the Act, including restrictions on who may investigate and the requirement of sanction before prosecution, and suggested judicial or Lokpal-supervised preliminary enquiries as a less intrusive alternative.

 

For the Union, Tushar Mehta defended the provision, arguing that earlier precedents did not outlaw all forms of prior approval.

 

He submitted that Section 17A is narrowly crafted to protect bona fide official decisions and prevent vexatious complaints that could lead to policy paralysis.

 

Relying on earlier case law, the Solicitor General argued that statutory filters to screen complaints against public servants are constitutionally permissible and said approvals are processed through a structured, reasoned mechanism.

 

During the hearings, the Bench itself flagged competing concerns.

 

Justice Viswanathan questioned whether Section 17A could still fall foul of Article 14 on grounds of arbitrariness, while Justice Nagarathna acknowledged the need to protect honest officers from undue harassment but indicated that such concerns could not justify foreclosing investigation at the outset.