The Supreme Court’s recent split verdict on the constitutional validity of Section 17A of the Prevention of Corruption Act (PCA) has raised questions about the robustness of India’s primary legislative framework for anti-corruption. The section, which mandates prior government approval before investigating public servants for corruption allegations, was partially read down and upheld as constitutional by Justice K V Viswanathan while it was struck down by Justice B V Nagarathna. The case will now go to a larger bench.
Anti-graft laws in India
Public servants in India can be penalised for corruption under the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and the Prevention of Corruption Act (PCA), 1988. The Benami Transactions (Prohibition) Act, 1988 prohibits benami transactions linked to corruption. The Prevention of Money
Laundering Act, 2002 also penalises public servants for the offence of money laundering. The Prevention of Corruption Act was enacted to streamline all legislation pertaining to such offences committed by public servants.
Section 17A
Section 17A of the PCA bars investigative agencies from probing public servants without prior approval from the government. The section was introduced in July 2018 through an amendment to the Act. It bars the police from conducting any inquiry without prior approval of the competent authority (Central government, state government, or the authority empowered to remove him/her from office). The only exception is cases involving arrest on the spot for accepting or attempting to accept a bribe.
The section was brought in to protect public servants from harassment through frivolous complaints, creating a statutory filter to screen complaints before any full-fledged investigation can be launched. This way, it also ensures that investigations are conducted with proper oversight. Critics argue that such a pre-condition effectively makes investigations against senior officials a non-starter, while the government claims such provisions are essential to protect honest officers and prevent ‘policy paralysis’.
The petition
In November 2018, the Centre for Public Litigation moved the Supreme Court complaining that Section 17A attacks the heart of the anti-graft law. It said the amendment seeks to stall investigations at the very threshold for want of sanction. The petitioner’s counsel, Prashant Bhushan, argued that the requirement for prior approval for investigation mirrored similar provisions already struck down by the Supreme Court in earlier cases. The petition also sought to point out the conflict of interest that Section 17A throws up as it allows higher government authorities, including ministers who may themselves be involved in decision-making, to decide whether an investigation should start.
Single Directive
Section 17A of PCA is not the first such provision the government inserted to shield public servants. In 1969, the then Central government issued the Single Directive, a consolidated set of executive instructions, to the CBI on initiating inquiries and registering cases against senior officials of the government, public sector units and nationalised banks, mandating prior approval for such probes. In December 1997, the Supreme Court struck it down as unconstitutional in Vineet Narain v. Union of India, better known as the Jain hawala case.
Section 6A of DPSE Act
Six years later, in 2003, the government introduced Section 6A of the Delhi Special Police Establishment (DPSE) Act to restore the prior approval requirement for investigating senior officials. Section 6A(1) stipulated that any investigation into charges against officers of the rank of joint secretary and above can begin only after government approval. This looked like the Single Directive being reintroduced with a new name. The Supreme Court struck down this provision, too, in Subramanian Swamy v Union of India. The 2014 judgment held that the section violated the norm of equality as it extended protection only to a higher class of officials and not everyone.
‘Old wine in new bottle’
According to Justice Nagarathna, Section 17A of PCA is “a resurrection of Section 6A of the DSPE Act, 1946 though in a different avatar, in other words, it is old wine in a new bottle.” She said Section 17A has to be struck down for being contradictory to the judgments of the larger bench and Constitution bench of the Supreme Court.
“An analysis of the Single Directive No.4.7(3) and Section 6A of the DSPE Act, 1946 read with Section 17A brings out the substantive common aspects. Considering the substance and the true intent of Section 17A of the Act, it is nothing but another manifestation of the Single Directive No.4.7(3) and Section 6A of the DSPE Act, 1946, which have been quashed by larger Benches of this Court,” the judgment dated January 13, 2026 read. Hence, Section 17A is liable to be struck down for attempting to obviate the earlier decisions of the SC, the order said.
Justice Nagarathna also found Section 17A to be violative of Article 14 of the Constitution (equality before law) because it seeks to protect only those public servants who have the responsibility of making a recommendation or taking a decision in the discharge of their official duties. Also, mandating prior approval for preliminary inquiries is tantamount to shielding potentially corrupt high-level officials while exposing the lower ranks to automatic investigation, she said in her judgment. This would defeat the PCA's core objective of eradicating corruption and contravenes rule of law principles.
Throwing baby out with bathwater
While Justice Viswanathan upheld Section 17A as valid, he partially agreed with the concerns over letting the government be the sanctioning authority and handed over that mandate to the Lokpal or the Lokayukta. According to him, outright invalidation of the section would be like throwing the baby out with the bathwater. “If honest public servants are not given a basic assurance that decisions taken by them will not be subjected to frivolous complaints, it is the nation that will suffer. Public servants will resort to a play it safe syndrome and that will result in policy paralysis,” his judgment read.
He rejected the petitioner’s plea to strike down the section on grounds of power misuse. “The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. The converse must also follow that a statute which is otherwise invalid as being unreasonable cannot be saved by its being administered in a reasonable manner. The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed.”
Calling for a balanced view, Justice Viswanathan said the objective of incorporating Section 17A of the Act was not to condone official acts done for improper purposes but to protect bona fide recommendations.