The Central Bureau of Investigation (CBI) has expressed concerns over Section 17A of the Prevention of Corruption (PC) Act, arguing that while prior approval requirements have not impeded investigations in high-profile cases, the 2018 amendment has removed the element of surprise, potentially allowing public servants under investigation to destroy evidence or influence witnesses before probes even begin. The comments come in the wake of a split verdict by the Supreme Court on the constitutional validity of Section 17A, which will now be referred to a larger bench.

Under Section 17A, no enquiry or investigation can be initiated against a public servant—serving or retired—without the prior sanction of the competent authority for acts committed during official duty. The provision was enacted in July 2018with the stated aim of protecting honest officers from frivolous or politically motivated investigations. While well-intentioned, CBI officials suggest that in practice it has created procedural hurdles that can be exploited by wrongdoers.

“In high-profile political cases or large frauds involving government servants, getting prior approval has not been a problem,” a senior CBI officer said, citing approvals received for investigations involving former Delhi chief minister Arvind Kejriwal and deputy chief minister Manish Sisodia. “However, what 17A has done is that if we inform a particular department that we want to investigate their official and that information reaches them, it takes away the element of surprise. This allows the accused to manipulate complainants, tamper with evidence, or otherwise obstruct the probe before it has even started,” the officer added, speaking on condition of anonymity.

Another CBI official drew parallels with the challenges posed by the withdrawal of general consent under Section 6 of the Delhi Special Police Establishment (DSPE) Act, which prevents the agency from exercising its powers in states that have revoked consent. Currently, eight states—West Bengal, Kerala, Jharkhand, Punjab, Meghalaya, Telangana, Tamil Nadu, and Karnataka—have withdrawn general consent, compelling the CBI to seek special permission for each investigation in those jurisdictions. These combined legal and procedural requirements have, officials say, made it harder to act swiftly, especially in lower-profile corruption cases.

CBI data show that the delays are more pronounced in smaller cases. As of December 2024, 72 requests involving 171 government servants were pending with various ministries and departments, including Railways, Defence, Health, Aviation, and Finance. Of these, 25 requests concerning 80 officials had been pending for over three months, despite clear guidelines stating that competent authorities must respond within that timeframe. “Most of these pending references are in smaller cases,” noted a second officer, who also requested anonymity.

The agency has attempted to adapt strategically to the constraints posed by Section 17A. According to officials, the CBI has increasingly focused on trap cases, which do not require prior approval. Trap cases involve catching a public servant red-handed while accepting or demanding a bribe, and they have seen a marked increase in recent years. In 2024, out of 807 regular cases (RCs) and preliminary enquiries (PEs) registered by the CBI, 222 were trap cases, compared to around 150-160 cases before 2023. Similarly, 198 trap cases were registered in 2023. This reflects a proactive operational shift aimed at circumventing procedural delays and ensuring actionable results.

The Supreme Court’s split verdict on Tuesday highlighted the ongoing debate over Section 17A. Justice BV Nagarathna declared the provision unconstitutional, arguing that it unduly hampers investigations and protects public servants beyond reasonable limits. In contrast, Justice KV Viswanathan upheld the law’s constitutionality, emphasizing the importance of safeguarding honest officers from harassment. The matter is now set to be examined by a larger bench of the Supreme Court, which will likely deliver a decisive ruling on its future.

CBI officials stress that while approvals are not a bottleneck in high-profile or politically sensitive cases, the situation is different for less prominent government employees, who may exploit delays to evade accountability. The 2018 amendment was intended to create a balance between investigative authority and protection against harassment, but in practice, it has sometimes tilted in favor of those under scrutiny.

The concerns raised by the CBI echo recommendations by the Parliamentary Standing Committee on Personnel, Public Grievances, and Law and Justice, which in multiple reports has suggested granting the agency wider investigative powers independent of state consent, particularly in corruption and fraud cases. Officials believe that streamlined protocols, combined with targeted focus on trap cases, may help mitigate the limitations imposed by Section 17A.

Officials argue that the element of surprise is critical in corruption investigations, particularly when dealing with financial misappropriation, falsification of records, or tampering with witnesses. By notifying competent authorities before initiating probes, Section 17A inadvertently alerts the individuals under investigation, reducing the likelihood of obtaining direct evidence. The increased reliance on trap cases has helped the CBI maintain effectiveness in spite of these constraints.

However, officials acknowledge that the agency’s focus on trap cases is not a complete solution. Trap operations are labor-intensive, require careful planning, and cannot address all forms of corruption or systemic fraud. High-value or complex schemes, especially those involving multiple officials or political figures, still depend on conventional investigations, which are slowed by the approval process under Section 17A.

The practical impact of Section 17A is evident from pending requests for approval. Delays in response from competent authorities not only slow investigations but also affect the morale of investigative teams. Officers claim that in many ministries, approval requests linger beyond the stipulated three-month timeline, allowing potential wrongdoers to leverage bureaucratic inertia to their advantage.

Despite these challenges, the CBI continues to play a key role in combating corruption and fraud. Officials say that with proper legal reforms, including potential amendments or judicial clarifications on Section 17A, the agency could regain the operational flexibility and tactical advantage necessary to tackle both high-profile and routine cases.

“The law was enacted with good intentions, to protect honest officers, but in practice it has created a grey area that can be exploited,” said a senior officer. “If the Supreme Court strikes it down or modifies it, it could restore the balance between protecting honest public servants and ensuring effective investigation against wrongdoing.”

As India’s principal anti-corruption agency, the CBI’s concerns underline a broader tension between legal safeguards and investigatory efficiency. Striking the right balance will be crucial not just for high-profile political cases but also for day-to-day corruption investigations affecting governance, public sector performance, and accountability in the civil services.

In conclusion, while Section 17A was designed to shield public servants from harassment, CBI officials argue that it has unintentionally benefited wrongdoers in smaller, less-visible cases by removing the element of surprise and creating procedural delays. With the Supreme Court’s larger bench now set to review the matter, a decisive verdict could have far-reaching implications for anti-corruption enforcement in India. Meanwhile, the agency continues to rely on trap cases and proactive measures to circumvent the procedural constraints and uphold its mandate to investigate corruption efficiently.