New Delhi: The Supreme Court on Tuesday delivered a split verdict on the constitutional validity of a 2018 provision of the anti-graft law, which mandates prior sanction for initiating a probe against a government servant in a corruption case.
While Justice BV Nagarathna said Section 17A of the Prevention of Corruption Act is unconstitutional and needs to be struck down, Justice KV Viswanathan held the provision as constitutional while stressing on the need to protect honest officers.
Section 17A of the Prevention of Corruption Act, 1988, introduced in July 2018, bars any “enquiry or inquiry or investigation” against a public servant for recommendations made in discharge of official duties without prior approval from the competent authority.
“Section 17A has no vice of invalid classification. The possibility of abuse is no ground to strike down Section 17A,” he pronounced.
In view of the split verdict, the matter will now be referred to a larger Bench.
The verdict came on a PIL filed by the Centre for Public Interest Litigation challenging the validity of Section 17A of the Act introduced through an amendment in 2018.
The petitioner had contended that the requirement of prior approval for investigating a public servant reintroduced a protection that had already been struck down by the Supreme Court in Vineet Narain v. Union of India and Dr. Subramaniam Swamy v. Director, CBI, wherein the top court.
The Bench had reserved its verdict on the contentious issue on August 6, 2025.
Declaring the impugned provision invalid, Justice Nagarathna said, “Section 17A is unconstitutional and it ought to be struck down. No prior approval is required to be taken. This provision is an attempt to resurrect what has been earlier struck down in Vineet Narain and Subramanian Swamy judgments.
“The requirement of prior sanction is contrary to the object of the Act, and it forecloses inquiry and protects the corrupt rather than seeking to protect the honest and those with integrity who really do not require any protection,” she said.
On the other hand, Judge Vishwanathan concluded that an independent agency free from the Executive must decide the issue of prior sanction.
“Section 17A is constitutionally valid subject to the condition that the sanction must be decided by the Lok Pal or the Lok Ayukta of the State,” Justice Viswanathan said, adding that striking down the provision will amount to “throwing the baby out with the bath water”.
He sought to emphasise that unless honest and public servants were shielded from frivolous investigations, a “policy paralysis” will set in.
A fine balance has to be maintained between the need to protect a public servant from mala fide cases and the importance of upholding probity in public offices, Justice Viswanathan said.
