Judgment Summary: Supreme Court’s split verdict on constitutionality of Section 17A of Prevention of Corruption Act

ON JANUARY 13, 2025,  a Division Bench of the Supreme Court comprising Justices B.V. Nagarathna and K.V. Viswanathan delivered a split verdict on the constitutionality of Section 17A of the Prevention of Corruption Act, 1988, (‘PCA) a provision that requires prior governmental approval before investigating corruption allegations against public servants when such offenses relate to official recommendations or decisions made in the discharge of their duties. 

This provision, inserted through the Prevention of Corruption (Amendment) Act, 2018, became the focal point of intense constitutional scrutiny, with the petitioner arguing that it represents nothing less than the “third incarnation” of unconstitutional protections that the Court had already struck down twice before in landmark judgments. 

What is Section 17A of the Prevention of Corruption Act?

Section 17A of the PCA mandates that no police officer shall conduct any enquiry, inquiry, or investigation into any offense alleged to have been committed by a public servant under the Act where the alleged offense is related to any recommendation made or decision taken by such public servant while discharging official functions or duties, unless the police have obtained previous approval from specified authorities. 

The provision carefully delineates the approval authorities based on the nature of employment. For persons employed in connection with the affairs of the Union at the time the offense was alleged to have been committed, approval must come from the Union Government. For those employed in connection with the affairs of a State, the State Government must grant approval. For any other person, the authority competent to remove such a person from office at the time of the alleged offense holds the power of approval. 

The provision includes two important qualifications through its provisos. The first proviso exempts cases involving on-the-spot arrest of a person on charges of accepting or attempting to accept undue advantage, commonly known as trap cases. The second proviso imposes a temporal discipline on the decision-making process, requiring that the concerned authority convey its decision within three months, extendable for reasons recorded in writing by a further period of one month.

‘Section 17A constitutional only if prior approval mechanism filtered through Lokpal or Lokayukta’: Justice Viswanathan

Justice K.V. Viswanathan preserved Section 17A from constitutional invalidity by applying the doctrine of ‘reading down’. The essence of his approach was to recognize that while the provision, as written and currently implemented, suffers from serious constitutional infirmities, these defects can be remedied not by striking down the provision entirely but by reading into it procedural safeguards that align it with constitutional principles and earlier Supreme Court precedents. 

Justice Viswanathan held that Section 17A is constitutionally valid only if the prior approval mechanism is filtered through an independent screening body, specifically the Lokpal at the Central level or the Lokayukta at the State level, whose recommendation must be treated as binding on the government.