Single Directive to 17A: A long-drawn case

THe sublime margaret court’s stock split finding of fact on tues 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.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.The core question of prior approval before investigationAt 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”.From the Single Directive to Section 6A: the first two roundsThe Supreme Court has encountered this tension before — twice.The first instance 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. According to the government, the said directive was issued to protect senior officers from the perils of vexatious inquiries and investigations and to ensure they were not victimised for taking honest decisions. It was said that absence of such protection could adversely affect the efficiency and efficacy of the government institutions because officers would then avoid taking any decisions which could later lead to their harassment.But in Vineet Narain Vs Union of India (1997), a three-judge bench struck it down, holding that all persons accused of the same offence must be subject to the same investigative process, regardless of status or rank.“If the conduct amounts to an offence, it must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld, and the rule of law vindicated,” held the court, shooting down the Centre’s argument that the Single Directive is applicable only to certain class of officers who are decision makers. The top court also held the Single Directive to be invalid on the ground of legislative competence, noting that the powers of CBI conferred under DSPE Act were interfered with by way of an administrative instruction issued by the government.Undeterred, the Centre gave statutory backing to a similar protection by inserting Section 6A into the DSPE Act in 2003, requiring prior approval to investigate officers of the rank of joint secretary and above.Ten years later, this too was invalidated — this time by a five-judge Constitution bench in Subramanian Swamy Vs Director, CBI (2014) on the ground that it violated Article 14 (equality) by creating an impermissible classification and shielding precisely those whose misconduct most urgently required scrutiny. The court warned that allowing senior bureaucrats to control the initiation of investigations against themselves posed a grave threat to the rule of law. Terming Section 6A as “discriminatory”, the judgment said that “the protection in Section 6A has the propensity of shielding the corrupt”.Section 17A: the third avatarIn July 2018, the Centre revived the prior-approval regime yet again, this time by amending the PC Act itself. Unlike Section 6A, Section 17A applies uniformly to all public servants, removing the rank-based classification that proved fatal earlier. But it goes further in one crucial respect — it forecloses even a preliminary inquiry without prior approval, something the court had explicitly frowned upon in earlier rulings.While a period of four months has been given for under Section 17A for a competent authority to convey its decision on granting sanction, the provision clarifies that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person – borrowed from Section 6A of the DSPE Act.Civil society organisation Centre for Public Interest Litigation (CPIL) challenged the amendment in 2018 itself, arguing that it resurrects, in substance if not form, the very immunity regimes struck down in Vineet Narain and Subramanian Swamy.The challenge remained pending for years, even as the Supreme Court clarified in interim rulings that Section 17A would operate prospectively from July 26, 2018. In September 2023, a Constitution bench led by Justice Sanjay Kishan Kaul (since retired) ruled that the court’s 2014 order that revoked the immunity to senior officers booked by CBI in corruption cases between September 2003 and May 2014 “will have retrospective operation”, effectively meaning that such public servants could be prosecuted without government approval.The split verdict and the stakesOn Tuesday, the long-pending challenge culminated in a split verdict. Justice Nagarathna struck down Section 17A as unconstitutional, holding that it violates Article 14, undermines the rule of law, and directly contravenes binding precedents. She found that the provision effectively resurrects the Single Directive and Section 6A in another guise, stifles investigation at the threshold, and is riddled with arbitrariness due to institutional bias, conflict of interest, and lack of neutrality within government departments.Justice Viswanathan, however, cautioned against what he described as “throwing the baby out with the bathwater”. While acknowledging the dangers of executive interference, he held that striking down Section 17A altogether would expose honest officers to irreparable reputational harm and trigger a “play-it-safe” syndrome leading to policy paralysis. In his view, the provision could be constitutionally sustained if complaints are first screened through independent institutions such as the Lokpal or Lokayuktas by way of preliminary inquiries.The diametrically opposite conclusions have now necessitated reference to a larger bench.The eventual outcome will have far-reaching consequences, not merely for corruption cases, but for the balance between accountability and administrative autonomy. On one side lies the Supreme Court’s long-standing insistence that no office or rank can justify insulating corruption from investigation. 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 government’s persistence in reintroducing protective mechanisms and the court’s unresolved struggle to reconcile efficiency with constitutional accountability.The reference to a larger bench ensures that the battle over Section 17A is far from over. What is at stake is not merely the fate of a single provision, but a foundational question about the architecture of India’s anti-corruption regime: should investigation be the rule and protection the exception, or vice versa?