Single Directive to 17A: A long-drawn case

The Supreme Court's split verdict on Tuesday on the constitutional validity of Section 17A of the Prevention of Corruption (PC) Act has once again brought into focus a prolonged and unresolved legal battle over how far the State can go in insulating its officials from criminal investigation.

- Utkarsh Anand

With justices BV Nagarathna and KV Viswanathan delivering sharply divergent opinions, the issue now stands referred to the Chief Justice of India for constitution of a larger bench. The reference marks the latest chapter in a saga stretching back over five decades — one marked by repeated attempts by the government of the day to build protective barriers around bureaucrats, and equally consistent judicial resistance to any mechanism that stifles investigations at the threshold.

At the heart of the controversy lies a simple but consequential 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 that question in the affirmative.

Section 17A was introduced into the PC Act with effect from July 26, 2018, extending 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 official capacity. The provision removed the earlier distinction between senior and junior officials that existed under Section 6A of the Delhi Special Police Establishment (DSPE) Act, which had been struck down by the Supreme Court in 2014.

The provision bars the police from conducting any enquiry, inquiry or investigation without prior approval of the competent authority, except in cases involving arrest on the spot for accepting or attempting to accept a bribe. Critics argue that such a bar strikes at the very root of anti-corruption enforcement by allowing the executive to decide whether allegations can be examined at all. The government, on the other hand, has consistently defended such provisions as essential to protect honest officers and prevent “policy paralysis”.

The Supreme Court has encountered this tension before — twice.