“Shielding the Dishonest?” – Supreme Court Split Verdict on Section 17A PC Act in Centre for Public Interest Litigation v. Union of India

 

• Case title: Centre for Public Interest Litigation v. Union of India​

• Case No.: W.P. (Civil) No. 1373 of 2018 

• Dated: JANUARY 13, 2026​

• Court: Supreme Court of India​

• Bench: Justice B.V. Nagarathna and Justice K.V. Viswanathan​

• Provision under challenge: Section 17A, Prevention of Corruption Act, 1988 (as amended in 2018)[​

• Result: Split verdict – Justice Nagarathna held Section 17A unconstitutional; Justice Viswanathan upheld it with a reinterpretation.​

Background: What Section 17A Requires

Section 17A mandates prior approval from the “Government” or the authority competent to remove a public servant from office before any inquiry, inquiry/investigation can be initiated into offences under the PC Act, where the allegation relates to any recommendation made or decision taken by such public servant in discharge of official functions.​

The ostensible aim was to protect honest officers from vexatious and motivated proceedings, especially in policy and decision-making spheres.​

Justice Nagarathna’s Core Holding

Justice B.V. Nagarathna held Section 17A to be unconstitutional as violative of Articles 14 and 21 of the Constitution because:

• It forecloses even a preliminary inquiry at the very threshold by conditioning it on prior approval.​

• In substance, it protects dishonest public servants, not honest ones; those with integrity “really do not require any such protection”.​

• The provision undermines the object of the Prevention of Corruption Act, which is to secure prompt and effective investigation of corruption offences.​

She characterised the “patent purpose” of Section 17A as shielding honest officers from frivolous probes, but the “latent object/effect” as creating a legal shield for corrupt officials to block or delay investigation.

Resurrection of a Struck-Down Regime

Justice Nagarathna situates Section 17A as the third avatar of a regime that the Supreme Court has repeatedly invalidated:​

1. Vineet Narain v. Union of India (1998) – Executive instructions requiring prior governmental approval for CBI investigations against senior officials were struck down.​

2. Section 6A, DSPE Act, 1946 – Required prior approval to investigate officers of Joint Secretary rank and above.​

3. Subramanian Swamy v. Director, CBI (2014) – A five-judge Constitution Bench struck down Section 6A as violative of Article 14.​

Against this backdrop, Section 17A is described as “nothing but another attempt to resurrect on the statute book what was struck down by this Court earlier.”​

Article 14: In-Substance Classification within Public Servants

Although Section 17A is couched as applicable to “any public servant”, Justice Nagarathna dissects its practical reach:​

• The expressions “recommendation made” and “decision taken” naturally attach to decision-making public servants at higher levels​

• Officers at lower rungs largely prepare notes and do not “take decisions” in the statutory sense.​

Result:

• Public servants involved in recommendations/decisions enjoy the protection of prior approval.

• Those not involved in such decision-making can be proceeded against without any prior approval.​

This creates an in-substance classification within the same class of public servants which, according to Justice Nagarathna, fails the twin test under Article 14—intelligible differentia and rational nexus with the object of the Act.​

Insulating a particular tier of public servants from investigation bears no rational nexus with the object of combating corruption and the rule of law.​

Arbitrariness, Policy Bias and Conflict of Interest

Justice Nagarathna further finds the mechanism under Section 17A arbitrary on several counts:​

• Policy bias: The authority within the department might be influenced by policy considerations or departmental interest while deciding whether to grant approval​

• Collective decision-making: Many decisions/recommendations are collective; singling out one official at the approval stage is impracticable and arbitrary.​

• Conflict of interest: The authority empowered to grant/refuse approval may itself have participated in, or be institutionally bound to defend, the impugned decision.​

Grant or refusal of approval thus becomes an institutional decision of the concerned department, which, in her view, is arbitrary and contrary to fairness and natural justice.​

Why “Read Government as Lokpal/Lokayukta” Was Rejected

Justice K.V. Viswanathan, in his separate opinion, attempted to save Section 17A by reading the expression “Government”/“authority competent to remove him from office” as a reference to the Lokpal or Lokayukta.​

Justice Nagarathna expressly disagreed:

• Such a reading, she held, amounts to judicial legislation, which is impermissible.​

• The very requirement of prior approval being unconstitutional, merely shifting the approving authority does not cure the defect.​

• She notes that the Legislature appears to have intentionally used “Government”/competent authority so that no independent body would have a say; these words, therefore, cannot simply be swapped for “Lokpal/Lokayukta”.​

At the same time, she remarks that if any such screening was to exist, it ought to have been entrusted to an independent and autonomous body not controlled by the Government—failing which Section 17A is vague, unguided and effectively frustrated.​

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Articles 14 and 21, and India’s Anti-Corruption Commitments

Justice Nagarathna concludes that:

• By erecting a barrier at the inception of the investigative process, Section 17A frustrates the effective enforcement of the PC Act.​

• It thereby violates Article 14 (due to invidious classification and arbitrariness) and Article 21 (by undermining the fair and effective administration of criminal justice in corruption cases).​

• The provision also undermines India’s domestic and international commitments to combat corruption.​

On this reasoning, she strikes down Section 17A as unconstitutional.​

Why This Judgment Matters for the Legal Fraternity

For judges, prosecutors and defence counsel, this opinion is significant because:

• It revives the Vineet Narain–Subramanian Swamy line that resists executive/legislative attempts to place senior public servants beyond investigative reach.​

• It offers a clear doctrinal critique of pre-investigation approval regimes on Article 14 grounds—both classification and arbitrariness.​

• It frames the debate in terms of institutional conflict of interest and policy bias, which will influence how future courts scrutinise “prior approval/sanction” mechanisms even beyond the PC Act context.​

Given the split, the issue will likely require consideration by a larger Bench, but Justice Nagarathna’s opinion already furnishes a detailed constitutional roadmap for challenges to statutory devices that insulate decision-making public servants from corruption inquiries.​

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