The Supreme Court’s recent split verdict on the constitutional validity of Section 17A of the Prevention of Corruption (PC) Act has once again brought into sharp focus a prolonged and complex legal struggle over the extent to which the State can protect its officials from criminal investigation. With Justices BV Nagarathna and KV Viswanathan delivering sharply divergent opinions, the matter has now been referred to the Chief Justice of India for constitution of a larger bench. This development marks yet another chapter in a saga that spans over fifty years, characterized by repeated efforts by successive governments to construct protective barriers around bureaucrats and an equally persistent judicial insistence that such barriers should not obstruct investigation and accountability.

At the heart of the controversy lies a fundamental question: can the executive insist on prior approval before even a preliminary inquiry into allegations of corruption against public servants? Section 17A, inserted into the PC Act through the 2018 amendments, answers this question in the affirmative. The provision was brought into force on July 26, 2018, and extends protection from investigation without prior approval to all serving and retired public servants, provided the alleged offence relates to recommendations made or decisions taken in an official capacity. In doing so, Section 17A removed the earlier distinction between senior and junior officials that had existed under Section 6A of the Delhi Special Police Establishment (DSPE) Act, a provision that had been struck down by the Supreme Court in 2014.

Under Section 17A, the police are barred from conducting any inquiry or investigation without prior approval from the competent authority, except in cases involving the immediate arrest of a public servant caught accepting or attempting to accept a bribe. While the government maintains that the provision is necessary to protect honest officers and prevent “policy paralysis,” critics argue that such a bar strikes at the very foundation of anti-corruption enforcement by allowing the executive to decide whether allegations should be examined at all. In effect, they contend, it empowers the State to stifle scrutiny and investigation at the outset, undermining the rule of law and public trust in the integrity of governance.

The tension between administrative autonomy and accountability is not new in Indian jurisprudence. The Supreme Court has grappled with this issue twice before, in two earlier legal episodes. The first was the Single Directive of 1969, an executive instruction that required prior governmental approval before the Central Bureau of Investigation (CBI) could investigate senior officials. The government had defended the directive by asserting that it was necessary to shield senior officers from vexatious inquiries and investigations, which could otherwise deter them from taking decisions for fear of later harassment. The argument was that without such protections, the efficiency and efficacy of government institutions would suffer, as officers would avoid making decisions that might later be subjected to scrutiny.

However, in Vineet Narain vs Union of India (1997), a three-judge bench of the Supreme Court struck down the Single Directive. The Court held that all persons accused of the same offence must be subject to the same investigative process, regardless of their status or rank. It emphasised that if conduct constitutes an offence, it must be promptly investigated, and offenders against whom a prima facie case exists should be prosecuted expeditiously to uphold the majesty of the law and vindicate the rule of law. The Court also found the Single Directive invalid on the ground of legislative competence, noting that the powers conferred on the CBI under the DSPE Act were interfered with by an administrative instruction issued by the government.

Undeterred by this ruling, the government sought statutory backing for a similar protection by inserting Section 6A into the DSPE Act in 2003. This provision required prior approval to investigate officers of the rank of joint secretary and above. However, ten years later, a five-judge Constitution bench in Subramanian Swamy vs Director, CBI (2014)invalidated Section 6A, holding that it violated Article 14 of the Constitution, which guarantees equality before the law. The bench noted that Section 6A created an impermissible classification, shielding exactly those officials whose misconduct most urgently required scrutiny. The Court observed that allowing senior bureaucrats to control the initiation of investigations against themselves posed a grave threat to the rule of law and described Section 6A as discriminatory, emphasizing that such protection had the propensity to shield the corrupt rather than promote honest governance.

In July 2018, the government revived the prior-approval regime yet again, this time by amending the PC Act itself through Section 17A. Unlike Section 6A, Section 17A applies uniformly to all public servants, removing the rank-based classification that had previously proved constitutionally fatal. Yet the provision goes further in one crucial respect: it forecloses even preliminary inquiry without prior approval, a measure that previous court rulings had explicitly criticized. While Section 17A provides a period of four months for the competent authority to convey its decision on granting sanction, it clarifies that no approval is required in cases involving on-the-spot arrests for accepting or attempting to accept any undue advantage, essentially borrowing this exception from Section 6A of the DSPE Act.

The Centre for Public Interest Litigation (CPIL) challenged Section 17A soon after its introduction, arguing that it resurrected, in substance if not in form, the immunity regimes struck down in Vineet Narain and Subramanian Swamy. This legal challenge remained pending for years. Interim rulings from the Supreme Court clarified that Section 17A would operate prospectively from July 26, 2018. In September 2023, a Constitution bench led by Justice Sanjay Kishan Kaul ruled that the 2014 order revoking immunity for senior officers booked by the CBI between 2003 and 2014 would have retrospective effect, effectively allowing such public servants to be prosecuted without government approval.

The recent proceedings culminated in a split verdict. Justice Nagarathna struck down Section 17A as unconstitutional, holding that it violated Article 14, undermined the rule of law, and contravened binding precedents. She found that the provision effectively resurrected the Single Directive and Section 6A in a new guise, stifling investigation at the threshold and introducing arbitrariness through institutional bias, conflicts of interest, and lack of neutrality within government departments.

Justice Viswanathan, in contrast, cautioned against what he described as “throwing the baby out with the bathwater.” While acknowledging the dangers of executive interference, he contended that striking down Section 17A altogether would expose honest officers to irreparable reputational harm and create a “play-it-safe” mindset, resulting in policy paralysis. In his view, the provision could be constitutionally sustained if complaints were first screened through independent institutions such as the Lokpal or Lokayuktas via preliminary inquiries.

The diametrically opposed conclusions of the two judges now necessitate the formation of a larger bench to provide clarity. The eventual outcome will have far-reaching implications, not only for corruption cases but also for the delicate balance between accountability and administrative autonomy in India. On one side stands the Supreme Court’s long-standing insistence that no office or rank can justify insulating officials from investigation for corruption. On the other lies the State’s argument that decision-making in a complex modern administration cannot survive under the constant threat of criminal process triggered by hindsight or political vendetta.

That this is the third round of litigation on essentially the same issue underscores both the persistence of governments in seeking protective mechanisms for officials and the judiciary’s continued struggle to reconcile administrative efficiency with constitutional accountability. The reference to a larger bench ensures that the debate over Section 17A is far from over. At stake is not merely the fate of a single statutory provision but a fundamental question about the architecture of India’s anti-corruption regime: should investigation be the rule and protection the exception, or should protection dominate at the cost of investigative accountability?

The long legal journey from the Single Directive of 1969 to Section 17A reflects the enduring tension between protecting public servants from vexatious inquiries and upholding the constitutional principles of equality, transparency, and accountability. As India awaits the larger bench verdict, the case underscores the continuing challenge of maintaining integrity within governance structures while ensuring that officials remain answerable under the law. The Supreme Court’s ruling, in whichever form it emerges, is likely to shape the contours of anti-corruption policy and bureaucratic accountability for decades to come, reaffirming the perennial question: in a democracy, should public office be a shield or a responsibility?