Summary
| Category | Data |
|---|---|
| Court | Supreme Court of India |
| Case Number | W.P.(C) No.-001373 – 2018 |
| Diary Number | 40618/2018 |
| Judge Name | HON’BLE MRS. JUSTICE B.V. NAGARATHNA |
| Concurring or Dissenting Judges |
Majority: HON’BLE MR. JUSTICE K.V. VISWANATHAN Dissent: HON’BLE MRS. JUSTICE B.V. NAGARATHNA |
| Precedent Value | Binding authority on prior‐approval regime and Article 14 limits |
| Overrules / Affirms | Overrules single‐directive prior‐approval, DSPE Act 6A prior‐approval requirement |
| Type of Law | Constitutional law / Anti‐corruption law |
| Questions of Law | Is Section 17A constitutional under Articles 14 and 21? Must prior executive approval be a condition precedent to any police enquiry or investigation into alleged offences relatable to official decisions? |
| Ratio Decidendi | Section 17A’s “previous approval” mandate for corruption‐related inquiries is unconstitutional. It revives the ultra vires single directive invalidated in Vineet Narain and the discriminatory classification struck in Subramanian Swamy. A department cannot screen its own officers impartially, and the rule of law demands unfettered preliminary enquiries by the police. |
| Judgments Relied Upon |
|
| Logic / Jurisprudence / Authorities Relied Upon by the Court | Inherent power of police to conduct preliminary enquiries; Article 14 prohibition on arbitrary classification; rule‐of‐law requirement for independent screening; precedents forbidding executive curtailment of statutory investigation powers |
| Facts as Summarised by the Court | Petitioner challenged Section 17A (inserted by the Prevention of Corruption Amendment Act, 2018), which bars any police enquiry or investigation into offences “relatable to recommendations made or decisions taken” by public servants without prior government approval. Respondents defended it as a necessary filter to protect honest officers from frivolous prosecutions and to prevent policy paralysis. The Court debated the provision’s compatibility with prior rulings and constitutional guarantees. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate and trial courts dealing with anti‐corruption inquiries |
| Persuasive For | High Courts, tribunals, investigative agencies for policy on preliminary enquiries |
| Overrules | Executive prior‐approval directives; DSPE Act 6A (“Joint Secretary & above”) |
| Distinguishes | Preliminary enquiry exceptions (trap cases; post-fiduciary approvals under CrPC 1973) |
| Follows | Vineet Narain, Subramanian Swamy |
What’s New / What Lawyers Should Note
- SC strikes down Section 17A’s “previous approval” mandate under the Prevention of Corruption Act as unconstitutional.
- Revives the core principles of Vineet Narain (no executive curbs on CBI’s statutory investigations) and Subramanian Swamy (no arbitrary classification).
- Clarifies that all police may conduct threshold enquiries (scrutiny of records, minimal questioning) into allegations of corruption, without executive filter.
- Holds that departmental screening by the very government whose officers are to be investigated risks bias and breaches rule of law.
- Lawyers can rely on this decision to resist any attempts at executive vetting of corruption complaints and to advocate for unfettered preliminary inquiries.
Summary of Legal Reasoning
- Statutory Context: Section 17A required prior government approval for any police “enquiry or inquiry or investigation” into offences “relatable to recommendations made or decisions taken” by public servants.
- Precedent Check: Vineet Narain (1998) struck down the single directive for executive fettering of CBI; Subramanian Swamy (2014) invalidated DSPE Act 6A (Joint Secretary & above) as arbitrary under Article 14.
- Article 14 Analysis: Section 17A, though broadly worded, in practice protects only the cohort of officials making formal decisions or recommendations—an impermissible classification.
- Rule of Law & Independence: Allowing the department to veto even threshold enquiries breaches the rule of law and denies police the independence to gather prima facie material.
- Literal vs. Purposive Interpretation: No ambiguity warrants reading “Lokpal” into “Government.” Substitution would amount to judicial legislation and isn’t viable.
- International Obligations: Contravenes UNCAC Articles 6(2)/36 requiring independent anti‐corruption bodies.
- Outcome: Section 17A unconstitutional; executive prior‐approval regime overruled; unfettered preliminary police enquiries reaffirmed.
Arguments by the Parties
Petitioner (CPIL)
- Section 17A contradicts Vineet Narain and Subramanian Swamy by reviving prior‐approval for corruption probes.
- Creates arbitrary classification—protects formulaic decision-makers while denying same process to all others.
- Risks departmental bias; undermines rule of law.
- Frustrates section’s anti‐corruption object; shields corrupt officials.
- Violates UN Convention Against Corruption’s demand for independent screening.
Respondent (Union of India)
- Statutory presumption of constitutionality; valid legislative policy to shield honest officers from vexatious and frivolous probes.
- Section 17A is agency‐neutral (applies to all police), status‐neutral (all public servants), narrowly tailored (only offences linked to decisions/recommendations), and time‐limited (3 + 1 months).
- Does not contravene Vineet Narain since that struck down an executive directive, not a statute; classification issue in Subramanian Swamy differs.
- Lalita Kumari allows threshold scrutiny in corruption cases.
- SOP and judicial review guard against abuse.
- Protects vital public interest: prevents “policy paralysis.”
Factual Background
- In July 2018, Parliament amended the Prevention of Corruption Act, 1988 to add Section 17A, which bars any police enquiry/inquiry/investigation into offences “relatable to recommendations made or decisions taken” by public servants in office without prior government approval.
- The petitioner (CPIL) filed a writ petition under Article 32 challenging Section 17A’s constitutionality (W.P.(C) No. 1373/2018, Diary No. 40618/2018).
- The Supreme Court heard rival contentions: petitioner invoked Articles 14/21 and UN‐convention obligations; respondents defended a need to shield honest officers, citing administrative efficiency and SOP.
- Two separate opinions emerged: majority would read in a Lokpal‐screening mechanism; dissent would strike down Section 17A as unconstitutional.
Statutory Analysis
- Prevention of Corruption Act, 1988
- Section 17: empowered specified police officers to investigate corruption offences; no prior sanction in text.
- Section 19: prior sanction needed before taking cognizance at trial stage.
- Section 17A (2018): added a new prior‐approval filter at the preliminary enquiry/investigation stage for acts “relatable to recommendations or decisions.”
- Delhi Special Police Establishment Act, 1946
- Former Section 6A (2003–2014): required CBI to get Central Government approval to investigate Joint Secretary‐level and above; struck down in Subramanian Swamy.
- Lokpal & Lokayuktas Act, 2013
- Sections 11, 20: set up independent Inquiry Wing for preliminary enquiries and elaborate procedures (no govt filter).
- Section 56: Lokpal Act prevails over conflicting laws.
Dissenting / Concurring Opinion Summary
Majority (Viswanathan, J.)
- Upholds Section 17A as constitutional if read to require that prior‐approval proposals be first screened by the Lokpal/Lokayukta’s Inquiry Wing under the 2013 Act or State laws.
- Advocates harmonising Section 17A with established precedents by adding an independent gatekeeper.
Dissent (Nagarathna, J.)
- Strikes down Section 17A outright as violating Articles 14 and 21.
- Holds the prior‐approval filter a reviving of the single‐directive and DSPE Act 6A debacles, undermining rule of law.
- Rejects reading “Lokpal” into “Government” as illegitimate judicial legislation.
- Warns of systemic bias in departmental vetting.
Procedural Innovations
- No new procedures; reliance on existing CrPC, Lokpal and Lokayukta frameworks.
- Suggestion (majority view) to adapt 2013 Act’s Inquiry Wing as prior‐approval screen.
Alert Indicators
- 🚨 Breaking Precedent – Statutory prior‐approval approved/enacted since 2018 is now struck down.
- ✔ Precedent Followed – Reaffirms Vineet Narain’s rule against executive curbs, Subramanian Swamy’s Article 14 reasoning.
- ⚖️ Split Verdict – Two‐judge Bench split; dissent struck Section 17A, majority offered read‐in fix.