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 AND HON’BLE MR. JUSTICE K.V. VISWANATHAN |
| Bench | Division Bench |
| Concurring or Dissenting Judges | Two opinions: one justice striking down S 17A; the other saving it via Lokpal/Lokayukta reading-in |
| Precedent Value | Pending—matter referred to constitution bench |
| Overrules / Affirms | Attempts to reintroduce measures struck down in Vineet Narain and Subramanian Swamy |
| Type of Law | Constitutional law; anti-corruption; CrPC inherent powers |
| Questions of Law | Whether Section 17A’s prior-approval rule violates Articles 14 & 21; can executive fiat bar even preliminary probes? |
| Ratio Decidendi (3–8 sentences) | One judge found S 17A an unconstitutional fetter on independent investigation and discriminatory by status, violating rule-of-law precedents in Vineet Narain and Subramanian Swamy. The other judge held the legislature may require screening but only via Lokpal/Lokayukta, broader than executive—read in under Art 56 of the Lokpal Act—preserving S 17A’s validity. Both agreed honest officials need protection but differ on who may screen, prompting a larger bench referral. |
| Judgments Relied Upon | Vineet Narain (1998) 1 SCC 226; Subramanian Swamy (2014) 8 SCC 682; Lalita Kumari (2014) 2 SCC 1; K. Veeraswami (1991) 3 SCC 655; Matajog Dobey (1955) 2 SCR 925 |
| Logic / Jurisprudence / Authorities | Rule of law; Section 482 CrPC; “policy paralysis” vs free enquiry; natural justice; separation of powers; Art 56 Lokpal override; Articles 77/166 Rules of Business |
| Facts as Summarised by the Court | Writ petition challenges S 17A (2018) requiring prior government sanction for any police inquiry into alleged offences “relatable to official recommendations or decisions”; CBI data showed 41.3% refusal rate; extensive consultations via Law Commission and Rajya Sabha Committee; Division Bench split. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts—pending larger bench ruling |
| Persuasive For | High Courts; other Supreme Court benches |
| Overrules | Single Directive 4.7(3) (Vineet Narain); Section 6A DSPE Act (1946) (Subramanian Swamy) |
| Distinguishes | Lalita Kumari (FIR-registration rule) |
| Follows | K. Veeraswami (sanction precedents); Matajog Dobey (judge protection) |
What’s New / What Lawyers Should Note
- First direct challenge to Section 17A of the PC Act (2018 Amendment).
- Division Bench split: one justice striking down S 17A as an unlawful bar on independent enquiry; the other saving it via Lokpal/Lokayukta screening.
- S 17A replays past veto‐regimes invalidated in Vineet Narain and Subramanian Swamy.
- Tests the balance between shielding honest officials and enabling prompt corruption probes at the inquiry stage.
- Counsel may cite the split to shape legislative drafting of prior-approval rules in anti-corruption measures.
- Pending larger bench, courts should flag S 17A challenges under Articles 14 & 21.
Summary of Legal Reasoning
- Legislative history: Vineet Narain quashed executive vetos on CBI probes; Subramanian Swamy struck DSPE Act 6A as discriminatory.
- Section 17A re-imposes prior approval for any police-led enquiry “relatable to recommendations or decisions”—applies to all public servants.
- Justice Nagarathna (strike down)
- S 17A violates Article 14 by carving out only decision-makers.
- Bars even preliminary probe—per Subramanian Swamy’s rule-of-law mandate.
- Executive-only screening lacks neutrality; invites bias.
- Justice Viswanathan (uphold w/ read-in)
- S 17A is status- and agency-neutral, with time-limits and exceptions.
- Save it by reading in Art 56 Lokpal/Lokayukta screening—binding on government.
- Both agree on need to protect honest officers, but differ on executor of that shield.
- Matter referred to larger bench pending final decision.
Arguments by the Parties
Petitioner
- S 17A reanimates veto regimes quashed in Vineet Narain (1998) and Subramanian Swamy (2014).
- Violates Articles 14 & 21: discriminatory, blocks even preliminary probe.
- No independent filter—enables selective blocking of genuine corruption investigations.
- Conflicts with Lalita Kumari mandatory FIR rule and UNCAC obligations.
Respondent (Union of India)
- Statute presumed constitutional; enacted after Law Commission & RS Committee scrutiny.
- S 17A agency- and status-neutral, narrowly tailored to bona fide decision-makers, trap-case exception, strict timelines.
- Comparable prior-sanction schemes upheld under CrPC 1973 and Veeraswami.
- If needed, Lokpal screening can be read in under Art 56.
Factual Background
A writ petition under Article 32 challenged Section 17A of the PC Act, 1988, enacted by the 2018 Amendment. S 17A bars any police inquiry into offences “relatable to recommendations or decisions” by public servants without prior government sanction, exempting on-the-spot arrests and imposing three-month timelines with a one-month extension. The petitioner cites a 41.3% refusal rate for CBI requests. The respondent defends S 17A as vital to prevent vexatious probes. The Division Bench split and referred the matter to a constitution bench.
Statutory Analysis
- Section 17A PC Act (w.e.f. 26.7.2018): No police inquiry into offences by public servants “relatable to any recommendation made or decision taken in discharge of official duties” without prior approval by Union/State Government or competent removal authority.
- Trap-case exception for on-the-spot bribe arrests.
- Approval decision in three months (+ one-month extension).
- Contrasts with DSPE Act 6A (Joint Secretary + CBI only) and Section 197 CrPC (cognizance stage).
- Introduced after Law Commission & RS Select Committee deliberations—omitted independent screening by Lokpal/Lokayukta.
Dissenting / Concurring Opinion Summary
Justice Nagarathna (strike down)
- S 17A revives illegal fetters on probe autonomy from Vineet Narain & Subramanian Swamy.
- Violates Article 14 by carving out only higher-level decision-makers.
- Demands truly independent screening, not executive veto.
Justice Viswanathan (uphold w/ read-in)
- S 17A is salutary, non-status-based, timed, non-barring of trap cases.
- Saved by reading in Lokpal/Lokayukta gatekeeping under Art 56.
- Preserves balance between accountability and efficiency.
Alert Indicators
- 🚨 Breaking Precedent – Revisits anti-corruption vetting after two larger-bench bans.
- ⚖️ Split Verdict – Two conflicting opinions, referred for larger bench.
- 🔄 Conflicting Decisions – Judges disagree on upholding vs striking down prior-approval rule.