Top Court Divided on Whether Prior Government Approval for Corruption Investigations Is Constitutional
Tacit Legal 13-Jan-2026
A two-judge Bench of the Supreme Court of India has delivered a split verdict on the constitutionality of Section 17A of the Prevention of Corruption Act, 1988, a provision inserted by the 2018 amendment which requires prior government approval before investigating a public servant for corruption linked to official decisions.
While Justice B.V. Nagarathna held that Section 17A is unconstitutional and liable to be struck down, Justice K.V. Viswanathan upheld the provision but read it down by directing that the Lokpal or Lokayukta, and not the executive government, must decide the question of sanction.
Due to this divergence, the matter has now been referred to the Chief Justice of India for constitution of a larger Bench.
Background of the Case
The case arose from a writ petition filed by the Centre for Public Interest Litigation (CPIL) challenging the 2018 amendments to the Prevention of Corruption Act, particularly Section 17A. Section 17A prohibits any police officer from conducting any enquiry, inquiry or investigation against a public servant in respect of decisions taken in the discharge of official duties without prior approval from the Central or State Government.
The petitioner argued that this provision reintroduced executive control over corruption investigations, which had earlier been struck down by the Supreme Court in Vineet Narain v. Union of India and Dr. Subramanian Swamy v. Director, CBI.
What Section 17A Provides
Section 17A states that no investigation shall be initiated against a public servant for acts relating to official decisions without prior approval of:
The Central Government (for Central employees)
The State Government (for State employees)
The competent authority (in other cases)
An exception exists for trap cases where a public servant is caught accepting a bribe on the spot.
Justice B.V. Nagarathna: Section 17A Is Unconstitutional, Justice Nagarathna struck down Section 17A in its entirety, holding that :- It Revives executive control over corruption probes Directly contradicts earlier Supreme Court rulings, Protects corrupt officials instead of honest officers She observed:
“Section 17A is an attempt to resurrect what has already been struck down. It forecloses inquiry and protects the corrupt rather than seeking to protect the honest.”
According to her, sanction at the investigation stage is constitutionally impermissible because it prevents even preliminary scrutiny of corruption allegations.
She held that Section 17 (rank of investigating officer) and Section 19 (sanction for prosecution) already provide sufficient safeguards for honest officers.
Justice K.V. Viswanathan: Section 17A Valid if Decided by Lokpal:- Justice Viswanathan refused to strike down Section 17A but held that it cannot be administered by the executive government.
He ruled that the power to grant or refuse sanction under Section 17A must vest in an independent authority the Lokpal at the Centre and Lokayukta in the States. He cautioned that striking down the provision entirely would lead to: Policy paralysis, Unfiltered police investigations, Structural imbalance between Lokpal complaints and police FIRs
He observed:
“Throwing out Section 17A would be throwing the baby out with the bathwater.” Thus, Section 17A was read down to mean that prior approval must come from Lokpal/Lokayukta and not the political executive.
Arguments of the Parties:- Petitioner (Prashant Bhushan) argued that:- Section 17A recreates Section 6A of the DSPE Act, which was struck down in Subramanian Swamy Allowing the executive to control investigations creates a conflict of interest
Existing safeguards like Section 17, Section 19, and Lalita Kumari preliminary inquiry are sufficient
Union of India (SG Tushar Mehta) The Solicitor General argued that:- Section 17A only protects bona fide official decision-making It prevents frivolous complaints and harassment It does not block prosecution, only filters investigations
Why the Matter Goes to a Larger Bench
Since one judge struck down the law and the other upheld it (with modifications), there is no binding judgment. The case has therefore been referred to the Chief Justice of India to constitute a larger bench to finally decide:- Whether Section 17A of the Prevention of Corruption Act is constitutional.
The final decision will determine whether political approval can control corruption investigations in India.
Case Details
Case Title
Centre for Public Interest Litigation v. Union of India Case No. W.P. (C) No. 1373 of 2018
Supreme Court of India
Bench
Justice B.V. Nagarathna & Justice K.V. Viswanathan
Date of Judgment
January 2026
Provision Involved
Section 17A, Prevention of Corruption Act
Status:& Referred to larger Bench
