Two-Judge Bench Upholds Section 17A With Lokpal Screening While a Co‑Bench Judge Strikes It Down; Matter Referred to Larger Bench

A two‑Judge bench of the Supreme Court, consisting of Justices K.V. Viswanathan and B.V. Nagarathna, heard a challenge to the constitutional validity of Section 17A of the Prevention of Corruption Act, 1988 — inserted by the 2018 Amendment — which made prior approval by the government a pre‑condition for police enquiry or investigation into offences “relatable to any recommendation made or decision taken” by a public servant. The petition was filed by the Centre for Public Interest Litigation and the Union of India defended the amendment.

The Court delivered differing opinions. Justice K.V. Viswanathan held that Section 17A was constitutionally valid but required a reading down to preserve the rule of law: the competent authority’s grant or refusal of prior approval must depend on the recommendation of the Lokpal (for Union matters) or the Lokayukta (for State matters), and governments must immediately forward Section 17A referrals to those independent bodies for screening and recommendation. The judgment observed that the Government’s existing SOPs were inadequate and prescribed a binding mechanism under which the Lokpal/Lokayukta could conduct a preliminary inquiry and recommend grant or rejection of approval to the appropriate authority. The Court, in its reasoning, observed: “The only way the validity of the provision can be sustained from a challenge under Article 14 and the consequent negation of rule of law, is to have the examination of the information which the appropriate government receives under Section 17A to be forwarded to the Lokpal. The Lokpal/Lokayukta may if it finds the information frivolous, recommend for reasons to be recorded in writing that the government reject the approval. If the Lokpal finds that the complaint calls for an inquiry it may order an inquiry by the Inquiry Wing… On the contrary, if it finds a prima facie case it may forward the same to the Government which Government will be obliged to follow the recommendation and proceed to grant the approval.” The majority judgment concluded: “Section 17A … is constitutionally valid, subject to the condition that grant or refusal of the approval … will depend on the recommendation of the Lokpal/Lokayukta.”

By contrast, Justice B.V. Nagarathna wrote a separate opinion holding Section 17A unconstitutional and liable to be struck down. She found that the 2018 provision replicated earlier executive or statutory schemes that this Court had invalidated in Vineet Narain and Subramanian Swamy, and that requiring prior approval at the pre‑investigation stage imperilled independent investigation and the object of the Prevention of Corruption Act. She emphasised that prior approval at the enquiry stage could “in substance protect the corrupt” and was inconsistent with Articles 14 and the Act’s purpose. The two judges therefore differed on remedy and validity.

Background The petition challenged the constitutional validity of Section 17A, enacted w.e.f. 26.07.2018, which prevented any police officer from commencing enquiry, inquiry or investigation into an offence by a public servant that was “relatable to any recommendation made or decision taken” by that public servant in discharge of official duties, without prior approval of the Union/State government or the authority competent to remove the official. The petitioner relied on Vineet Narain (1998) and Subramanian Swamy (2014), which had struck down earlier prior‑approval regimes (the Single Directive and Section 6A of the DSPE Act) as incompatible with independent investigation and Article 14. The Union contended the amendment safeguarded honest officials from vexatious probes and was accompanied by SOPs and timelines; the Solicitor General accepted that a preliminary inquiry might be appropriate and urged a narrow reading. The Viswanathan judgment accepted governmental objectives but read Section 17A down to require independent Lokpal/Lokayukta screening and made detailed directions; Justice Nagarathna disagreed and held the provision unconstitutional. The Court directed that the matter be placed before the Chief Justice for constitution of an appropriate Bench to consider the divergent views afresh.

Case Details: Case No.: WRIT PETITION (C) NO. 1373 OF 2018 Case Title: Centre for Public Interest Litigation v. Union of India Appearances: For the Petitioner(s): Prashant Bhushan, Senior Advocate; Anurag Tiwary, Advocate; Cheryl D’Souza, Advocate For the Respondent(s): Tushar Mehta, Solicitor General of India; Kanu Agrawal, Advocate; Rajat Nair, Advocate