Introduction

The decision of the Supreme Court in Centre for Public Interest Litigation v. Union of India 2026 INSC 55, occupies a pivotal place in India’s constitutional and anti-corruption jurisprudence, as it interrogates the delicate equilibrium between administrative autonomy and criminal accountability of public servants. At the core of the adjudication lay the constitutional validity and operational ambit of Section 17A of the Prevention of Corruption Act, 1988, a statutory provision mandating prior approval before the initiation of inquiry or investigation against public officials for acts undertaken in discharge of official functions.

Factual and Procedural Matrix

The appellant, Centre for Public Interest Litigation (“CPIL”), filed a writ petition under Article 32 of the Constitution challenging Section 17A of the Prevention of Corruption Act, 1988 (as inserted by the 2018 amendment). At issue was the constitutional validity of Section 17A, which mandates prior governmental approval before initiating investigation or inquiry in respect of certain corruption allegations against public servants. The petitioner contended that the impugned provision subverts fundamental norms of equality, transparency, and the rule of law by erecting an arbitrary barrier to the initiation of corruption inquiries, thereby impairing the efficacy of statutory enforcement and constitutional promises of probity in public life. The respondent defended the provision as a legitimate and salutary measure to forestall frivolous and vexatious probes that could compromise governance.

Before the Supreme Court, a two-judge bench delivered a split verdict, with divergent constitutional conclusions.

Statutory Framework

Section 17A of the Prevention of Corruption Act, 1988 embodies a statutory precondition on the exercise of investigative powers by mandating prior approval of the competent authority before initiation of any inquiry or investigation against a public servant in respect of offences alleged to have been committed in relation to any recommendation made or decision taken in the discharge of official functions.

The provision is applicable only where the impugned act has a direct nexus with official decision-making and operates at the pre-investigation stage, distinct from the sanction for prosecution under Section 19. Its applicability is expressly excluded in trap cases, where the public servant is caught red-handed while accepting or attempting to accept undue advantage.

Issues for Determination, Justice N.V. Nagarathna

1. whether prior approval within the meaning of Section 17A of the Act has to be given at all?
2. whether the requirement of seeking prior approval within the meaning of Section 17A of the Act is justified?

Submissions on behalf of the Parties

(A) Petitioner’s Contentions, Mr. Prashant Bhushan

1. Dilution of the Anti-Corruption Framework: The petitioner contended that Section 17A fundamentally undermines the scheme and object of the Prevention of Corruption Act by imposing a requirement of prior executive approval even at the stage of inquiry or investigation. This threshold barrier was argued to shield corrupt public officials and substantially weaken the effectiveness of anti-corruption enforcement.

2. Defiance of Binding Judicial Precedent: It was submitted that Section 17A is a legislative reincarnation of earlier prior-approval regimes invalidated by this Court in Vineet Narain and Subramanian Swamy. Those decisions held that provisions preventing investigating agencies from collecting material at the threshold violate Article 14 and erode the independence of investigative bodies. Section 17A, it was argued, seeks to nullify the ratio of these binding precedents.

3. Arbitrary and Unworkable Standards: The provision was criticised for requiring a prima facie linkage between the alleged offence and official decision-making before investigation, when such linkage can ordinarily be established only through investigation itself. The approval mechanism was also assailed for creating conflicts of interest and institutional bias within the executive hierarchy.

(B) Respondent’s Contentions, Mr.Tushar Mehta( Solicitor General of India)

1. Section 17A as a Salutary Safeguard: Section 17A was defended as a salutary safeguard designed to protect honest public servants from harassment arising out of frivolous or motivated complaints concerning bona fide official decisions.

2. Prevention of Frivolous Allegations and Policy Paralysis: The provision was justified as a continuation of legislative policy from the Single Directive to Section 6A of the DSPE Act. Respondent further contested that it aimed at preventing vexatious investigations that chill administrative decision-making and result in policy paralysis.

3. No Conflict with Vineet Narain and Subramanian Swamy: It was submitted that Vineet Narain and Subramanian Swamy do not prohibit prior-approval regimes per se, but only unreasonable executive overreach, and that Section 17A, being a non-discriminatory statutory enactment, does not violate Article 14.

4. Judicial Recognition of Prior Sanction Regimes: The respondents relied on precedents such as K. Veeraswami and Matajog Dobey to submit that this Court has consistently upheld prior sanction mechanisms as legitimate tools to prevent frivolous and vexatious prosecution of public servants, and that Section 17A is a continuation of this constitutionally accepted protective framework.

Binding Precedents in Contention

1. Vineet Narain v. Union of India (1998) 1 SCC 226: In Vineet Narain, the Supreme Court examined the legality of the “Single Directive”, which required prior governmental approval to investigate senior public officials, in the backdrop of alleged inaction by investigative agencies in probing the Jain Diaries scam. The Court held that the Directive amounted to impermissible executive interference with statutory investigative powers under the DSPE Act and struck it down, emphasising the independence of investigative agencies while issuing structural directions to strengthen anti-corruption institutions.
2. Subramanian Swamy v. Union of India (2016) 7 SCC 221: In Subramanian Swamy, a Constitution Bench of the Supreme Court examined the constitutional validity of Section 6A of the DSPE Act, 1946, which required prior approval of the Central Government to investigate senior public servants. Holding that the provision created an impermissible and arbitrary classification based solely on status, the Court struck it down as violative of Article 14, emphasising that investigative autonomy cannot be curtailed and that corruption allegations must be independently investigated irrespective of rank.

Ratio Decidendi: Divergent Opinions

A. Justice K. V. Viswanathan’s Opinion (Validity Subject to Read-Down) :- Justice Viswanathan upheld Section 17A as constitutionally sustainable subject to judicially imposed conditions. He emphasized that:

1. Recognition of Legislative Object: He accepted that Section 17A is intended to prevent frivolous and vexatious complaints against honest public servants arising from bona fide recommendations or decisions taken in discharge of official duties.

2. Core Infirmity: Absence of Independent Screening: He held that the constitutional weakness of Section 17A lies not in the concept of prior approval itself, but in the absence of an expressly provided independent screening mechanism, which is a requirement flowing from Vineet Narain and Subramanian Swamy.

3. Rejection of Blanket Invalidity: He cautioned that striking down Section 17A would be regressive, as it would allow immediate FIRs and coercive investigations into official decision-making without any preliminary filtration, thereby undermining administrative fairness.

B. Justice B. V. Nagarathna’s Opinion (Unconstitutionality) :- In contrast, Justice Nagarathna struck down Section 17A as ultra vires to the Constitution, holding that:

1. Arbitrariness and unequal treatment: “Section 17A is invalidated by the arbitrariness in its manner of operation, by foreclosing the possibility of even a bare inquiry/enquiry/investigation without prior approval, under the garb of being prejudicial, leading to the likelihood of corrupt public servants of a particular level and higher being shielded, which is impermissible and contrary to the objects of the Act as well as rule of law”.

2. Contrary to the object and scheme of the Act: “The requirement of prior approval within the meaning of Section 17A of the Act is contrary to the object and purpose of the Act, inasmuch as it forestalls an enquiry and thereby in substance protects the corrupt rather than seeking to protect the honest and those with integrity, who really do not require any such protection”.

3. Inadequate safeguards: The absence of procedural safeguards or guarantees against intra-departmental pressure in the grant/refusal of approval leads to potential abuse and conflict of interest. Section 17A of the Act inserted in the year 2018 is nothing but another attempt to resurrect on the statute book, what was struck down by this Court earlier.

4. Government to the Lokpal or Lokayukta, unconstitutionality does not vanish:“The expressions “Government” and “of the authority competent to remove him from his office” in Section 17A of the Act cannot be substituted, in light of no persisting ambiguity, absurdity or alternative meanings ascribable by any other expression as this would be an instance of judicial legislation. In fact, intentionally, the aforesaid expressions are used in order to ensure that no other independent body would have any say in the matter. Therefore, the said expressions cannot be substituted by the words “Lokpal” or “Lokayukta”. Further, by merely shifting the authority which is to grant prior approval”.

5. Struck down of Prior Approval: The prior approval being required for the purpose of protecting honest officers is not a valid reason for saving the provision from being declared unconstitutional as a regime of prior approval at the stage of inquiry/enquiry/investigation is fundamentally opposed to the objects and purpose of the Act and hence has to be struck down on that ground also.

CONTRADICTION IN JUDGEMENTS

Constitutional Validity

Justice Viswanathan upheld the constitutional validity of Section 17A, subject to a read-down interpretation mandating independent scrutiny—preferably by the Lokpal/Lokayukta—prior to grant of approval. In contrast, Justice Nagarathna declared Section 17A unconstitutional for violating Article 14, holding that it creates an impermissible class of protected public servants and impedes independent investigation.

Independent Screening Mechanism

Justice Viswanathan identified the absence of an express independent screening mechanism as the principal defect in Section 17A and sought to cure it through judicial harmonisation with the Lokpal framework. Justice Nagarathna rejected this approach, holding that courts cannot judicially substitute the “Government” with the “Lokpal,” as such an exercise would amount to impermissible judicial legislation.

Prior Approval Requirement

Justice Viswanathan viewed prior approval as a reasonable procedural safeguard, capable of balancing protection of honest officers with effective anti-corruption enforcement, provided it is independently administered. Justice Nagarathna, however, characterised the requirement as arbitrary and antithetical to the statute’s object, as it stifles even preliminary inquiry and shields wrongdoing.

Effect on Anti-Corruption Enforcement

Justice Viswanathan cautioned that striking down Section 17A in toto could expose public servants to frivolous investigations and induce policy paralysis. Justice Nagarathna countered that the absence of prior approval strengthens, rather than weakens, anti-corruption enforcement by preventing institutionalised protection of senior officials.

Method of Statutory Interpretation

Justice Viswanathan adopted a purposive and harmonised interpretation of Section 17A within the broader anti-corruption framework. Justice Nagarathna adhered to a strict textual approach, refusing to read in mechanisms absent from the statutory text and treating such judicial interpolation as unconstitutional.

Final Order of The Court Dated 13.01.2026

“Having regard to the divergent opinions expressed by us(Justice B.V. NAGARATHNA & Justice K.V. VISWANATHAN), we direct the Registry to place this matter before Hon’ble the Chief Justice of India for constituting an appropriate Bench to consider the issues which arise in this matter afresh”.

Critical Analysis of B.V. Nagarathna’s Judgement

On a holistic consideration of the issues, Section 17A of the Prevention of Corruption Act is held to be constitutionally infirm and unsustainable. The provision creates an impermissible and arbitrary classification by extending protection only to a select class of public servants engaged in decision-making functions, thereby violating Article 14 in a manner analogous to the infirmities identified in Vineet Narain and Subramanian Swamy. It represents a legislative attempt to resurrect, in altered form, prior-approval regimes already struck down by binding judicial precedent. By mandating prior approval even at the stage of inquiry or investigation, Section 17A operates arbitrarily, shields higher-level public servants from scrutiny, and subverts the object of the Act and the rule of law. The justification of protecting honest officers cannot salvage a mechanism fundamentally antithetical to effective anti-corruption enforcement. Further, the approval process envisaged under Section 17A is vitiated by structural biases, lack of neutrality, and potential conflicts of interest, rendering the provision incapable of constitutional sustenance. Consequently, the writ petition stands allowed, and Section 17A is struck down, with no order as to costs.

The matter has been referred to the Hon’ble Chief Justice of India for constitution of an appropriate Bench to adjudicate upon the constitutional validity of Section 17A of the Prevention of Corruption Act, 1988. Developments in this regard shall be closely monitored and reported in due course.

Conclusion

The split verdict in Centre for Public Interest Litigation v. Union of India (2026) brings to the fore a profound constitutional tension at the heart of India’s anti-corruption jurisprudence, the balance between effective investigation of corruption and protection of honest public servants from vexatious prosecution. Justice K.V. Viswanathan’s opinion represents a purposive and harmonising approach, seeking to preserve Section 17A by embedding it within an independent screening framework anchored in the Lokpal regime, thereby reconciling investigative autonomy with administrative fairness. In contrast, Justice B.V. Nagarathna’s opinion adopts a stricter constitutional posture, holding that any prior-approval regime at the pre-investigation stage is inherently arbitrary, violative of Article 14, and destructive of the rule of law, particularly in light of binding precedents such as Vineet Narain and Subramanian Swamy.