Why in news?

• A two-judge bench of the Supreme Court of India delivered a split verdict on the constitutionality of Section 17A of the Prevention of Corruption Act, 1988.
  • Given the divergent views, the case has been referred to the Chief Justice of India to constitute a larger bench for final adjudication.
• Inserted in 2018, the provision requires prior government approval before police can initiate enquiries or investigations against public servants for decisions taken in official duties.
• The judgment underscores a long-standing tension in administrative law — striking a balance between empowering agencies to act decisively against corruption and protecting honest civil servants from undue harassment.

What’s in Today’s Article?

• Addressing Policy Paralysis in Governance
• Section 17A as a Shield for the Corrupt
• Divergent Readings of Supreme Court Precedents

Addressing Policy Paralysis in Governance

• Section 17A was introduced to prevent “policy paralysis” by protecting civil servants from investigative harassment over bona fide decisions.
• The concern was that fear of probes could deter officials from taking bold, necessary policy decisions.
• Protecting the ‘Steel Frame’ of India
  • Justice K V Viswanathan underscored the need for such protection, invoking Sardar Vallabhbhai Patel’s description of civil servants as the “Steel Frame of India.”
  • He warned that without safeguards, honest officers would adopt a risk-averse “play-it-safe” approach, ultimately harming national interests.
• The Constitutional Flaw in Section 17A
  • Justice Viswanathan acknowledged a key defect in the provision: the authority to grant or deny approval for investigations rests with the government itself, undermining the independence essential for corruption inquiries.
  • To preserve the provision’s constitutionality, Justice Viswanathan adopted a “constructive approach.”
  • He upheld the requirement of prior approval but ruled that decision-making must not be confined to the government alone.
  • Instead, complaints must be independently screened by the Lokpal at the Centre and Lokayuktas in the States.
• How the Proposed Mechanism Works?
  • Under this framework, when police seek approval to investigate, the government must forward the request to the Lokpal.
  • The Lokpal’s Inquiry Wing conducts a preliminary assessment, and if a prima facie case is found, the government is obliged to grant approval.
  • This ensures independent scrutiny of corruption allegations while retaining necessary protection for honest public servants, thereby balancing administrative efficiency with accountability.

Section 17A as a Shield for the Corrupt

• Justice B V Nagarathna held that Section 17A is contrary to the very objective of the Prevention of Corruption Act, 1988.
• She argued that by blocking enquiries at the threshold, the provision effectively protects corrupt officials rather than safeguarding honest ones.
• Conflict of Interest in Government Approval
  • She rejected the assumption that the government can act as an impartial authority in granting approval for investigations.
  • She highlighted the risks of policy bias and conflict of interest, especially where allegations involve senior officials or ministers, making impartial decision-making by subordinate officers unrealistic.
• Violation of the Right to Equality
  • She found Section 17A violative of Article 14, as it grants protection only to officials involved in “recommendations or decisions.”
  • This, she said, unfairly discriminates against lower-level officials who perform clerical functions or record file notings and are denied similar safeguards.
• Rejection of Judicial Reconstruction
  • Justice Nagarathna strongly disagreed with Justice Viswanathan’s effort to save the provision by routing approvals through the Lokpal.
  • She termed this “judicial legislation,” asserting that courts cannot rewrite statutes by replacing “Government” with “Lokpal.”
• ‘Cart Before the Horse’ Argument
  • She dismissed the government’s claim that Section 17A acts as a gatekeeper against frivolous complaints.
  • Without a preliminary police enquiry, she argued, it is impossible to assess whether allegations are genuine or baseless.
• A Tool of Control Over Officials
  • Justice Nagarathna warned that Section 17A enables the government to wield a “Damocles’ sword” over public servants, pressuring them to conform to political interests under the threat of investigation approvals being selectively granted.

Divergent Readings of Supreme Court Precedents

• A key disagreement in the split verdict centred on how to interpret two landmark rulings of the Supreme Court of India: Vineet Narain v. Union of India and Subramanian Swamy v. CBI.
• Both judgments had struck down prior approval requirements that restricted corruption investigations.
• Justice Nagarathna: Section 17A as a Revival of Invalid Law
  • Justice B V Nagarathna viewed Section 17A as “old wine in a new bottle,” arguing that it resurrects protections earlier invalidated.
  • She relied on Subramanian Swamy Case, where the Court held that any fetter on even a preliminary enquiry undermines the investigation process.
  • In her view, Section 17A creates the same barrier—now extended to all public servants—and therefore suffers from the same constitutional infirmity.
• Justice Viswanathan: Distinguishing the Earlier Rulings
  • Justice K V Viswanathan took a different approach, distinguishing Section 17A from the provisions struck down earlier.
  • He noted that Subramanian Swamy invalidated Section 6A of the DSPE Act mainly because it discriminated between officers based on rank, violating equality under the Constitution.
  • Since Section 17A applies uniformly to all public servants, he argued that this defect does not arise.
  • Justice Viswanathan further reasoned that the core principle of Vineet Narain and Subramanian Swamy was preventing executive control over investigations.
  • By routing prior approval through an independent body like the Lokpal, he argued, Section 17A addresses this concern and meets constitutional requirements.
• The Crux of the Disagreement
  • Thus, while Justice Nagarathna saw Section 17A as fundamentally incompatible with binding precedent, Justice Viswanathan believed that institutional redesign—through independent screening—was sufficient to reconcile the provision with earlier Supreme Court rulings.