Centre For Public Interest Litigation vs. Union Of India

REPORTABLE

IN THE SUPREME COURT OF INDIA
2026 INSC 55
CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 1373 OF 2018


CENTRE FOR PUBLIC INTEREST
LITIGATION …PETITIONER (S)

VERSUS

UNION OF INDIA …RESPONDENT(S)


J U D G M E N T

K.V. Viswanathan, J.
A. TEXT OF SECTION 17A……………………………..………………………..………………4
B. CONTENTIONS OF THE PETITIONER…………………………...…………………………5
C. CONTENTIONS OF THE RESPONDENT………………….....……………………………..8
D. QUESTION FOR CONSIDERATION………………………………………………………..15
E. PRECURSOR TO SECTION 17A……………………………………...………..................15
F. RATIO, SPIRIT AND ESSENCE OF VINEET NARAIN ………….………………………..21

G. INTRODUCTION OF SECTION 6A IN THE DELHI SPECIAL POLICE
ESTABLISHMENT ACT, 2003…………………………………………….……….............24
H. HOLDING IN SUBRAMANIAN SWAMY …………………………….…………….………28
Signature Not Verified
Digitally signed by
RADHA SHARMA
Date: 2026.01.13
16:56:53 IST
Reason:
I. METAMORPHOSIS OF SECTION 17A…………………………………………...............34
i) RECOMMENDATION OF THE LAW COMMISSION…..…………………………………..34
1


ii) RECOMMENDATION OF THE RAJYA SABHA SELECT
COMMITTEE……………………………………………………….……….......................36
J. QUALITATIVE DIFFERENCE BETWEEN THE ERSTWHILE SECTION 6A AND THE
PRESENT SECTION 17A……..…………………..………………………………………....38
K. MANNER OF FUNCTIONING OF GOVERNMENT MACHINERY….…………………..39

L. IMPORTANCE OF HONEST AND FEARLESS ADVICE BY PUBLIC
SERVANTS……………………………………………………………………...…………….43
M. CONSTITUTIONAL VALIDITY OF SECTION 17A……...……………………….............49
N. EXISTING STANDARD OPERATING PROCEDURE (SOP) GOVERNING THE
GRANT/REJECTION OF APPROVAL…………………..………..…… ………………….50
O. SOP – DOES NOT CONTEMPLATE SCREENING BY AN INDEPENDENT
AGENCY………………………………………..……………………… ……….................56
P. THROWING BABY OUT WITH THE BATHWATER – NOT AN
OPTION…..…………………………………………………….……… ……..……………..58
Q. POSSIBILITY OF ABUSE – NO GROUND TO HOLD PROVISION
UNCONSTITUTIONAL………………...…………………………..………………………..59

R. THE LOKPAL AND THE LOKAYUKTAS ACT, 2013……………… …….………………..64
S. BODIES NOT COVERED UNDER THE JURISDICTION OF LOKPAL…………………...99
T. TEST OF READING DOWN………………………………………… …………………….101
U. CONSTRUCTIVE APPROACH TO REMOVE DICHOTOMY…………………………...110
V. ANALOGY WITH JUDICIARY-NOT TENABLE………………………….……………….117
W. EXISTENCE OF JUDICIAL REVIEW-NOT ADEQUATE TO PASS THE SUBRAMANIAN
SWAMY TEST………………………………..……………………………………………...118
X. POSTSCRIPT AND DIRECTIONS……………………………………….…………………119
2


1. Independent India’s first Home Minister Shri Sardar
Vallabhbhai Patel referred to civil servants as the ‘ Steel Frame
of India ’. In a similar vein, noted economist Joseph Schumpeter
said – ‘ Bureaucracy is not an obstacle to democracy but an
inevitable complement to it’ . This case brings into sharp focus
the enduring profundity and the everlasting significance of
these words of wisdom.
2. By this writ petition, the petitioner is challenging the
constitutional validity of Section 17A of the Prevention of
Corruption Act, 1988 [for short “the Act”]. The said section
was introduced by virtue of Section 12 of the Prevention of
Corruption (Amendment) Act, 2018 (for short ‘the Amendment
Act’). It should be recorded that yet another prayer
challenging the validity of Section 7 of the Amendment Act on
the assumed premise that the ingredients of the erstwhile
Section 13(1)(d)(ii) of the Act were not engrafted, had been
given up during the course of the arguments by Mr. Prashant
Bhushan, learned counsel for the petitioner.
3


TEXT OF SECTION 17A:
3. Section 17A, as introduced w.e.f. 26.07.2018, reads as
under:-
“17A. Enquiry or Inquiry or investigation of offences relatable
to recommendations made or decision taken by public servant
in discharge of official functions or duties.-

No police officer shall conduct any enquiry or inquiry or
investigation into any offence alleged to have been committed by
a public servant under this Act, where the alleged offence is
relatable to any recommendation made or decision taken by such
public servant in discharge of his official functions or duties,
without the previous approval—


(a) in the case of a person who is or was employed, at the time
when the offence was alleged to have been committed, in
connection with the affairs of the Union, of that Government;

(b) in the case of a person who is or was employed, at the time when
the offence was alleged to have been committed, in connection
with the affairs of a State, of that Government;

(c) in the case of any other person, of the authority competent
to remove him from his office, at the time when the offence was
alleged to have been committed:

Provided 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 :

Provided further that the concerned authority shall convey its
decision under this section within a period of three months, which
may, for reasons to be recorded in writing by such authority, be
extended by a further period of one month.”

4. It will be noticed that under the said section, no police
officer shall conduct any enquiry or inquiry or investigation
4


into any offence alleged to have been committed by a public
servant under the Act, where the alleged offence is relatable
to any recommendation made or decision taken by such
public servant in discharge of his official functions or duties,
without the previous approval of the authority prescribed
therein. The proviso prescribes that no such approval is
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. It is also
prescribed that the concerned authority is to convey its
decision under this section within a period of three months,
which may, for reasons to be recorded in writing by such
authority, be extended by a further period of one month.
CONTENTIONS OF THE PETITIONER:
5. Mr. Prashant Bhushan, learned counsel for the petitioner,
ably assisted by Mr. Anurag Tiwary and Ms. Cheryl D’Souza,
learned Counsels contends that Section 17A of the Act is
violative of Articles 14 and 21 of the Constitution of India.
5


According to the learned counsel, this is an attempt to
reintroduce a provision which had already been struck down
twice by this Court in Vineet Narain and Others vs. Union of
1
India and Another and Subramanian Swamy vs. Director,
2
Central Bureau of Investigation and Another . According to
the learned counsel, in Subramanian Swamy (supra) , this
Court found that the provision prevented the investigating
agency from collecting material evidence. He contends that
all that Section 17A does is to extend the scope of protection
to all levels of public servants and not just to a particular
category. Pointing to the data filed by the Union of India
pertaining to the Central Bureau of Investigation [CBI], it is
contended by the learned counsel for the petitioner that out of
2395 cases, prior approval was refused in 41.3% of the cases,
namely, in 989 cases. According to the learned counsel, there
is no indication as to any transparent criteria for grant or
refusal of sanction. It is contended that there is a reasonable

1
(1998) 1 SCC 226
2
(2014) 8 SCC 682
6


apprehension of arbitrariness on the part of the authority.
According to the learned counsel, this will give room for
selectively targeting officials and also result in protecting and
shielding the politically connected officials. Learned counsel
for the petitioner contends that Section 17A, by vesting the
power in the government to grant approval, is repugnant to
the provisions of the Lokpal Act and Lokayuktas Act, 2013 (for
short ‘the Lokpal Act’) defeating the purpose of an
independent mechanism. Learned counsel further contends
that the impugned provision (Section 17A) runs contrary to the
dictum of this Court in Lalita Kumari vs. Government of Uttar
3
Pradesh and Others, which according to the learned counsel
for the petitioner, mandated registration of FIR on the
disclosure of a cognizable offence. Learned counsel also
contends that the provision is contrary to the United Nations
Convention against Corruption, particularly Articles 6(2), 19
and 36. Learned counsel submits that there is an obligation to

3
(2014) 2 SCC 1
7


interpret domestic law in the light of the obligation under the
International Conventions. Alternatively, without prejudice to
his arguments on the invalidity of Section 17A of the Act, Mr.
Prashant Bhushan, learned counsel, in the rejoinder
submissions, argued that if the regime of prior approval is to
be preserved then screening by an independent agency, like
for example the Lokpal, be engrafted.
CONTENTIONS OF THE RESPONDENT:
6. Mr. Tushar Mehta, learned Solicitor General, very ably
assisted by Mr. Kanu Agrawal and Mr.Rajat Nair, learned
counsels, vehemently opposed the submissions of the
petitioner while defending the validity of Section 17A. It is
contended that there is a presumption of constitutionality in
favour of a statutory provision. It is further contended that a
challenge to the validity can only be made in the background
of an actual fact scenario. According to the learned Solicitor
General, an extensive consultation, was undertaken before
the enactment of the said provision. Apart from the
8


Parliamentary Standing Committee, the matter was also
examined by the Law Commission of India and further by the
Rajya Sabha Select Committee. The learned Solicitor General
contended that Section 17A, as it stands, being a statutory
provision, the principles laid down in Vineet Narain (supra)
can have no application as the single directive in Vineet
Narain (supra) was struck down on the ground that an
executive instruction cannot be ultra vires the statute.
Similarly, according to the learned Solicitor General, Section
6A of the Delhi Special Police Establishment Act, 1946 [for
short “the DSPE Act”] which applied only to a class of
individuals was found to be discriminatory and that vice is not
attracted herein as Section 17A is applied across the board to
all public servants. Learned Solicitor General also referred to
the Standard Operating Procedure [SOP] for the grant or
refusal of approval under Section 17A. The contents of the SOP
have been dealt with in detail hereinbelow.
9


7. The learned Solicitor General contended that Section
17A was a salutary provision with substantial checks and
balances enacted for a specific purpose, i.e. to protect honest
public servants from harassment by way of enquiry or inquiry
or investigation in respect of the recommendations made or
decisions taken in bona fide performance of their official
functions or duties. It was contended that the said provision
was part of the larger parliamentary policy to protect genuine
bona fide executive decisions taken by public servants while
discharging their official functions or duties. The learned
Solicitor General contends that the screening mechanism was
introduced to prevent misuse of the legal process and to
ensure that only genuine cases are proceeded with. The
provision, according to the learned Solicitor General, was
intended to maintain a balance between accountability and
administrative efficiency. Learned Solicitor General,
however, in para 5 of his written submissions expressly stated
as under:-
10


“Before a public servant is publicly charged with acts of
dishonesty which amount to serious misdemeanour or
misconduct and a FIR is lodged against him, there must be
some suitable preliminary inquiry into the allegations by
a responsible officer.”

8. Learned Solicitor General traced the legislative history
leading to the enactment of Section 17A. The same has been
discussed later in this judgment in detail. Learned Solicitor
General brought out the qualitative distinction between
Section 6A and Section 17A and the scope, sweep and ambit
of the said two provisions. According to the learned Solicitor
General, while Vineet Narain (supra) struck down the single
directive on the ground of it being an executive instruction
contrary to the statutory provision, in Subramanian Swamy
(supra), Section 6A was struck down on the ground of
classification only.
9. Learned Solicitor General submitted that pre-
investigative sanctions are not an anathema to the rule of law
and illustrated the point with reference to the judgment of this
4
Court in K. Veeraswami vs. Union of India and Others and

4
(1991) 3 SCC 655
11


contended that the protection is not confined to judges in
constitutional courts but have been extended to all members
of the judiciary. Learned Solicitor General emphasized on the
use of the phrase “discharge of official duties” in Section 17A
to bring home the point about narrow tailoring of Section 17A.
5
Reliance was placed on Matajog Dobey vs. H.C. Bhari to
contend that like in Section 197 of the Code of Criminal
Procedure, 1973 (for short ‘the CrPC’), protection is
extendable under Section 17A only when there is a reasonable
connection between the act and the discharge of official duty.
It was further emphasized that the Section is further confined
to recommendation made and decision taken as is clear from
the use of the phrase “ relatable to any recommendation made
or decision taken ” which qualifies the phrase “ in discharge of
official duties ”. This was argued to make good the point that
all acts are not protected.

5
(1955) 2 SCR 925
12


10. It was argued that the prescription of time-limits for the
decision to be taken itself is a guarantee against misuse. It
was also argued that post the grant or refusal, remedies by
way of judicial review are available. Learned Solicitor
General laid emphasis on the proviso to Section 17A to
contend that on the spot arrests are outside the purview of the
screening mechanism. Learned Solicitor General contended
that in view of Section 56 of the Lokpal Act, the Lokpal Act has
an overriding effect and whenever there is an investigation
ordered or FIR is ordered to be registered by the Lokpal, the
provision of Section 17A has no application. A large number
of judgments of the High Court interpreting Section 17A were
placed for consideration.
11. It was argued by the learned Solicitor General that there
was no breach of Lalita Kumari (supra) as even Lalita
Kumari (supra) contemplated exceptions to the rule of
mandatory registration of FIR and amongst the exceptions,
corruption cases were covered. It was argued that where the
13


statute creates a new procedure and sets out a machinery
dealing with it, the general provisions of the CrPC will not
apply to those matters covered by the special statute.
12. Much emphasis was laid on the pre-investigative
sanction prescribed for members of judiciary to contend that
Section 17A which extends similar protection to the executive
cannot be faulted with. Citing U.P. Judicial Officers’
6
Association vs. Union of India and Others , it was argued that
the protection has been extended to the higher judiciary
which are not constitutional courts. It was submitted that
Subramanian Swamy (supra) wrongly understood the
protection given to the judicial officers as being confined to
the judges of the constitutional courts. It was argued that mere
possibility of abuse of provision cannot be the basis to judge
its validity.


6
(1994) 4 SCC 687
14


QUESTION FOR CONSIDERATION :
13. In the above background, the question that arises for
consideration is, whether Section 17A of the Act as introduced
w.e.f. 26.07.2018 by Section 12 of the Amendment Act, is

constitutionally valid?
PRECURSOR TO SECTION 17A:
14. Prior to the judgment dated 18.12.1997 in Vineet Narain
(supra), a directive popularly known as the Single Directive
was in vogue. It was in the form of an executive order which
contained certain instructions to the CBI regarding modalities
of initiating an inquiry or registering a case against certain
categories of civil servants. Directive No. 4.7(3) read as
under:-
“4.7(3)( i ) In regard to any person who is or has been a
decision-making level officer (Joint Secretary or
equivalent or above in the Central Government or such
officers as are or have been on deputation to a Public
Sector Undertaking; officers of the Reserve Bank of India
of the level equivalent to Joint Secretary or above in the
Central Government, Executive Directors and above of
the SEBI and Chairman & Managing Director and
Executive Directors and such of the bank officers who are
one level below the Board of Nationalised Banks), there
15


should be prior sanction of the Secretary of the
Ministry/Department concerned before SPE takes up any
enquiry (PE or RC), including ordering search in respect
of them. Without such sanction, no enquiry shall be
initiated by the SPE.

( ii ) All cases referred to the Administrative
Ministries/Departments by CBI for obtaining necessary
prior sanction as aforesaid, except those pertaining to any
officer of the rank of Secretary or Principal Secretary,
should be disposed of by them preferably within a period
of two months of the receipt of such a reference. In respect
of the officers of the rank of Secretary or Principal
Secretary to Government, such references should be
made by the Director, CBI to the Cabinet Secretary for
consideration of a Committee consisting of the Cabinet
Secretary as its Chairman and the Law Secretary and the
Secretary (Personnel) as its members. The Committee
should dispose of all such references preferably within
two months from the date of receipt of such a reference by
the Cabinet Secretary.

( iii ) When there is any difference of opinion between the
Director, CBI and the Secretary of the Administrative
Ministry/Department in respect of an officer up to the rank
of Additional Secretary or equivalent, the matter shall be
referred by CBI to Secretary (Personnel) for placement
before the Committee referred to in clause ( ii ) above.
Such a matter should be considered and disposed of by
the Committee preferably within two months from the
date of receipt of such a reference by Secretary
(Personnel).

( iv ) In regard to any person who is or has been Cabinet
Secretary, before SPE takes any step of the kind
mentioned in ( i ) above the case should be submitted to
the Prime Minister for orders.”

16


Vineet Narain (supra) dealt with the validity of the said
directive. Two questions arose in relation to the said Directive
No. 4.7(3) of the Single Directive, namely, its
propriety/legality and the extent of its coverage.
15. In defending the validity of the Single Directive, the then
Attorney General had contended that the CBI being a special
agency created by the Central Government, was required to
function according to the mandate of the Central Government
which had constituted the special agency. It was also
contended that the Officers at the decision-making level
needed protection against malicious or vexatious
investigations in respect of honest decisions taken by them.
While dealing with these contentions, this Court held that the
general power to review the working of the agency would not
extend to permitting the Minister to interfere with the course
of investigation and prosecution in any individual case and in
that respect the officers concerned are to be governed
entirely by the mandate of law and the statutory duty cast upon
them [para 28 of Vineet Narain (supra) ].
17


16. This Court quoted the judgment in Union of India and
7
Others vs. Sushil Kumar Modi and Others , which, in turn,
relied on the observations of Lord Denning in R v.
8
Metropolitan Police Commr. to the following effect:-
“I have no hesitation, however, in holding that, like every
constable in the land, he should be, and is, independent
of the executive. He is not subject to the orders of the
Secretary of State, …. I hold it to be the duty of the
Commissioner of Police, as it is of every chief
constable, to enforce the law of the land . He must take
steps so to post his men that crimes may be detected; and
that honest citizens may go about their affairs in peace. He
must decide whether or not suspected persons are to be
prosecuted; and, if need be, bring the prosecution or see
that it is brought; but in all these things he is not the
servant of anyone, save of the law itself. No Minister of
the Crown can tell him that he must, or must not, keep
observation on this place or that; or that he must, or
must not, prosecute this man or that one. Nor can any
police authority tell him so. The responsibility for law
enforcement lies on him. He is answerable to the law
and to the law alone .”
[Emphasis supplied]

17. Thereafter, Vineet Narain (supra) distinguished the
judgments in State of Bihar and Another vs. J.A.C. Saldanha
9
and Others and K. Veeraswami (supra) and held that
statutory powers cannot be fettered by single directives

7
(1997) 4 SCC 770
8
(1968) 1 All ER 763
9
(1980) 1 SCC 554
18


which are in the nature of executive instructions. This Court
further held that unlike the power to sanction prosecution
under the then Section 6 of the DSPE Act which was statutorily
prescribed, the Single Directive was in the nature of an
executive order. This Court held that in the absence of any
statutory requirement of prior permission or sanction for
investigation, the same cannot be imposed as a condition
precedent for initiation of the investigation once jurisdiction is
conferred on the CBI to investigate the offence statutorily.
18. Going further, this Court held that the law does not
classify offenders differently for treatment thereunder,
including investigation of offences and prosecution for
offences, according to their status in life. This Court found that
the Single Directive was applicable only to certain persons
above the specified level who are described as “decision-
making officers”. Further, this Court first excluded from the
applicability of the Single Directive accusation of bribery
which is supported by direct evidence including trap cases
and offence of possession of assets disproportionate to known
19


sources of income. Thereafter, dealing with cases where
accusation could not be supported by direct evidence and is
a matter of inference of corrupt motive, this Court held as
under:-
“46. There may be other cases where the accusation
cannot be supported by direct evidence and is a matter of
inference of corrupt motive for the decision, with nothing
to prove directly any illegal gain to the decision-maker.
Those are cases in which the inference drawn is that the
decision must have been made for a corrupt motive
because the decision could not have been reached
otherwise by an officer at that level in the hierarchy. This
is, therefore, an area where the opinion of persons with
requisite expertise in decision-making of that kind is
relevant and, may be even decisive in reaching the
conclusion whether the allegation requires any
investigation to be made. In view of the fact that the CBI or
the police force does not have the expertise within its fold
for the formation of the requisite opinion in such cases, the
need for the inclusion of such a mechanism comprising of
experts in the field as a part of the infrastructure of the CBI
is obvious, to decide whether the accusation made
discloses grounds for a reasonable suspicion of the
commission of an offence and it requires investigation. In
the absence of any such mechanism within the
infrastructure of the CBI, comprising of experts in the field
who can evaluate the material for the decision to be made,
introduction therein of a body of experts having expertise
of the kind of business which requires the decision to be
made, can be appreciated. But then, the final opinion is to
be of the CBI with the aid of that advice and not that of
anyone else. It would be more appropriate to have such a
body within the infrastructure of the CBI itself.”

20


19. What is important to note is, this Court held that the final
opinion whether to investigate or not has to be made by the
CBI and not by anybody else and exhorted the CBI to have
within its midst body of experts to make the required decision.
What was emphasized was that the final decision whether to
investigate or not was to rest with the agency. Holding so, the
Single Directive was held to be invalid.
20. A minute reading of Vineet Narain (supra) indicates that
this Court first addressed the question of propriety/legality of
the Single Directive. In answering the question, this Court
held that the executive cannot dictate to the investigating
machinery as to whom to prosecute or not to prosecute. This
Court also reiterated that the formation of the opinion as to
whether or not a case has to be placed for trial is that of a
police officer and by no other authority. (See para 29)
RATIO, SPIRIT AND ESSENCE OF VINEET NARAIN
(SUPRA)
21. Though said in the context of examining the validity of the
executive instruction, the ratio, true spirit and essence of the
21


judgment in Vineet Narain (supra) is that the executive on its
own cannot foreclose enquiry into any allegation of corruption
as that will be entering the domain of the investigative agency.
This is the principle that permeates the warp and woof of the
entire judgment in Vineet Narain (supra) . The fact that what
was struck down as an executive instruction and the
observations on the aspect of classification have all to be read
in the context of this one fundamental underpinning in the
judgment, namely, that any decision to foreclose an enquiry
against a public servant has to be taken by a body which is
independent of the executive.
22. In Vineet Narain (supra), this Court proceeded to give
certain directions to implement the rule of law, to reiterate as
far as possible the recommendations of the Independent
Review Committee popularly known as N.N. Vohra
Committee. The following words of this Court from Vineet
Narain (supra) repays study: -
“26. … There can also be no doubt that the conclusions
reached by the IRC and its recommendations are the
minimum which require immediate acceptance and
22


implementation in a bid to arrest any further decay of the
polity. It follows that the exercise to be performed now by
this Court is really to consider whether any
modifications/additions are required to be made to the
recommendations of the IRC for achieving the object for
which the Central Government itself constituted the IRC.
We are informed by the learned Attorney General that
further action on the report of the IRC could not be taken
so far because of certain practical difficulties faced by the
Central Government but there is no negative reaction to
the report given by the Central Government.”

23. This Court reiterated some of the recommendations
made by Lord Nolan of U.K. dealing with “Standards in Public
Life” wherein one of the recommendations was as follows:-
“Independent scrutiny

7 . Internal systems for maintaining standards should be
supported by independent scrutiny.”

In conclusion, this Court in Vineet Narain (supra) held as
under:-
“61. In the result, we strike down Directive No. 4.7(3) of
the Single Directive quoted above and issue the above
directions, which have to be construed in the light of the
earlier discussion. The Report of the Independent Review
Committee (IRC) and its recommendations which are
similar to this extent can be read, if necessary, for a
proper appreciation of these directions. To the extent we
agree with the conclusions and recommendations of the
IRC, and that is a large area, we have adopted the same in
the formulation of the above directions. These directions
23


require the strict compliance/adherence of the Union of
India and all concerned.”


INTRODUCTION OF SECTION 6A IN THE DELHI
SPECIAL POLICE ESTABLISHMENT ACT, 1946
24. By the insertion of Section 26(c) to the Central Vigilance
Commission Act, 2003 [CVC], Section 6A was introduced to
the DSPE Act in 2003. Section 6A read as under:
“ 6-A. Approval of Central Government to conduct
inquiry or investigation .—(1) The Delhi Special Police
Establishment shall not conduct any inquiry or
investigation into any offence alleged to have been
committed under the Prevention of Corruption Act, 1988
(49 of 1988) except with the previous approval of the
Central Government where such allegation relates to—

( a ) the employees of the Central Government of the level
of Joint Secretary and above; and

( b ) such officers as are appointed by the Central
Government in corporations established by or under any
Central Act, Government companies, societies and local
authorities owned or controlled by that Government.

(2) Notwithstanding anything contained in sub-section (1),
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 gratification other than legal
remuneration referred to in clause ( c ) of the Explanation
to Section 7 of the Prevention of Corruption Act, 1988 (49
of 1988).”

24


25. A Constitution Bench of this Court in Subramanian
Swamy (supra) examined the challenge to the validity of
Section 6A of the DSPE Act. It is crucial to notice the argument
of learned Amicus Curiae Shri Anil B. Divan, learned senior
counsel, in supporting the challenge to the validity:-
a) That the provision has to be struck down as it strikes at
the core of rule of law as explained in Vineet Narain
(supra) and the principle of independent, unhampered,
unbiased and efficient investigation;
b) That the provision was subversive of independent
investigation;
c) The very group of persons, namely, high-ranking
bureaucrats whose misdeeds and illegalities may have to
be inquired into, would decide whether the CBI should
even start an inquiry or investigation;
d) There will be no confidentiality and insulation of the
investigating agency from political as well as
bureaucratic control and influence because the approval
25


has to be taken from the Central Government which
would involve leaks and disclosures at every stage.
e) The very nexus of the criminal-bureaucrat-politician
which is subverting the whole polity would be involved
in granting or refusing prior approval before an inquiry
or investigation can take place.
f) The essence of a police investigation is skilful inquiry and
collection of material and evidence in a manner by which
the potential culpable individuals are not forewarned.
The submission made being that the prior sanction of the
same department would result in indirectly putting to
notice the officers to be investigated before the
commencement of investigation.
g) Lastly, the classification contained in Section 6A created
a privileged class of government officers of the level of
Joint Secretary and above level and certain officials in
Public Sector Undertakings, which is directly destructive
and ran counter to the object of the Act and undermined
26


the object of detecting and punishing high-level
corruption.
26. The validity of the statute was defended by contending
that those in decision-making positions could become target
of frivolous complaints and they need to be protected. Hence,
a screening mechanism is legitimate as otherwise governance
would be affected and decision makers instead of tendering
honest advice would only give safe and non-committal advice.
It was argued that the screening mechanism was to filter out
frivolous or motivated investigation that could be initiated
against senior officers to protect them from harassment to
enable them to take decision without fear. The decision in
Matajog (supra) was cited to contend that Section 197 of the
CrPC was held to be valid and not violative of Article 14 and
on similar logic Section 6A should also be upheld. It was
argued that there was intelligible differentia since high-
ranking public servants took policy decisions.

27


HOLDING IN SUBRAMANIAN SWAMY (SUPRA)
27. This Court, after analyzing the various arguments and
after considering several precedents including the judgments
in Vineet Narain (supra) , JAC Saldanha (supra) and K.
Veeraswami (supra), held as under:-
i) The classification made in Section 6A on the basis of
status in government service is not permissible under Article
14 as it defeats the purpose of finding prima facie truth into the
allegations of graft, which amount to an offence under the Act.
(para 59)
ii) Irrespective of their status or position, corrupt public
servants are corrupters of public power and whether high or
low, are birds of the same feather and must be confronted with
the process of investigation and inquiry equally (para 59).
Section 6A neither eliminates public mischief nor achieves
some positive public good. It advances public mischief and
protects the crimedoer. The provision thwarts an
independent, unhampered, unbiased, efficient and fearless
28


inquiry/investigation to track down the corrupt public
servants. (para 60)
iii) The essence of police investigation is skillful inquiry and
collection of material and evidence in a manner by which the
potential culpable individuals are not forewarned. The
previous approval from the Government necessarily required
under Section 6A would result in indirectly putting to notice
the officers to be investigated before the commencement of
investigation, if CBI is not even allowed to enquire. (para 61)
iv) A preliminary enquiry is intended to ascertain whether a
prima facie case for investigation is made out or not. If CBI is
not even allowed to verify complaints by a preliminary
enquiry, how can the case move forward? A fetter is put to
enable the CBI to gather relevant material. (para 61)
v) As a matter of fact, CBI is not able to collect the material
even to move the Government for the purpose of obtaining
previous approval from the Central Government. (para 61)
vi) In the criminal justice system, the inquiry and
investigation into an offence is the domain of the police. Even
29


this exercise of scrutiny of records and gathering relevant
information to find out whether the case is worth pursuing
further or not is not possible. (para 62)
vii) As per the CBI Manual, a preliminary enquiry relating to
allegations of bribery and corruption should be limited to the
scrutiny of records and interrogation of bare minimum
persons which being necessary to judge whether there is any
substance in the allegations which are being enquired into
and whether the case is worth pursuing further or not. (para
62)
viii) The very power of CBI to enquire and investigate into the
allegations of bribery and corruption against a certain class of
public servants and officials in public undertakings is
subverted and impinged by Section 6A. (para 62)
ix) Section 6A continues to suffer from the other two
infirmities a) Where inference is to be drawn that the decision
must have been for corrupt motive and direct evidence is not
there, the expertise to take decision whether to proceed or not
30


in such cases should be with CBI itself and not with the Central
Government, and;
b) In any event, the final decision to commence
investigation into the offences must be of CBI with the internal
aid and advice and not of anybody else. (para 65)
x) Section 6A also suffers from the vice of classifying
offenders differently for treatment thereunder for inquiry and
investigation of offences, according to their status in life.
Every person accused of committing the same offence is to be
dealt with in the same manner in accordance with law, which
is equal in its application to everyone. (para 65)
xi) The impugned provision blocks inquiry and
investigation by CBI by conferring the power of previous
approval on the Central Government. (para 66)
xii) CBI is not able to proceed even to collect the material to
unearth prima facie substance into the merits of allegations
and thus the object of Section 6A itself is discriminatory. (para
68)
31


xiii) That being the position, the discrimination cannot be
justified on the ground that there is a reasonable classification
because it has a rational relation to the object sought to be
achieved. (para 68)
xiv) The criminal justice system mandates that any
investigation into the crime should be fair, in accordance with
law and should not be tainted (Para 86).
xv) It is equally important that interested or influential
persons are not able to misdirect or hijack the investigation so
as to throttle a fair investigation resulting in the offenders
escaping the punitive course of law. These are important
facets of the rule of law. Breach of rule of law amounts to
negation of equality under Article 14. Section 6A fails in the
context of these facets of Article 14 (Para 86).
xvi) Whether decision-maker or not, an independent
investigation into such allegations is of utmost
importance and unearthing the truth is the goal. The aim
and object of investigation is ultimately to search for truth
32


and any law that impedes that object may not stand the
test of Article 14. (para 91)
28. The ratio, spirit and essence of the judgment in
Subramanian Swamy (supra) indicates that the Constitution
Bench was primarily concerned with the untenability of
foreclosing any enquiry or inquiry by an independent agency
before the grant or refusal of approval under Section6A. It
also emphasized on how vesting the power in the government
would forewarn the officials who are subject matter of the
inquiry. The Constitution Bench held that irrespective of the
status of the public servants, they must be confronted with the
same process of inquiry/investigation. It frowned upon the
erstwhile Section 6A for subverting an inquiry by an
independent agency and for that reason found the object of
Section 6A to be discriminatory. Additionally, it found the
classification of high-level public servants as illegal.
29. It is in this background that the validity of Section 17A, as
introduced in 2018, needs to be tested.
33


METAMORPHOSIS OF SECTION 17A :
RECOMMENDATIONS OF THE LAW COMMISSION
30. The Law Commission of India in its 254th report
considered the Prevention of Corruption (Amendment) Bill,
2013. The proposed Section 17A, after certain minor
amendments suggested by the Law Commission, read as
follows: -
“17A. Investigation of offences relatable to
recommendations made or decision taken by public
servant in discharge of official functions or duties.
(2) No police officer shall conduct any investigation into
any offence alleged to have been committed by a public
servant under this Act, where the alleged offence is
relatable to any recommendation made or decision taken
by a public servant in the discharge of his official functions
or duties, without the previous approval-
(c) of the Lokpal, in the case of a public servant who is
employed, or as the case may be, was at the time of
commission of the alleged offence employed in
connection with the affairs of the Union, and is a person
referred to in clauses (a) to (h) of sub-section (1) of section
14 of the Lokpal and Lokayuktas Act, 2013;
(d) of the Lokayukta of the State or such authority
established by law in that State under whose jurisdiction
the public servant falls, in the case of a person who is
employed, as the case may be, was at the time of
commission of the alleged offence employed in
connection with the affairs of a State,
34


conveyed by an order issued by the Lokpal in accordance
with the provisions contained in Chapter VII of the Lokpal
and Lokayuktas Act, 2013 or Lokayukta of the State or such
authority referred to in clause (b) for processing of
investigation against the public servant
Provided 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.”
31. It will be noticed that the section, as recommended by
the Law Commission, provided for previous approval of the
Lokpal in case of a public servant employed with the affairs of
the Union and Lokayukta of the State or such authority
established by law in that State under whose jurisdiction the
public servant fell, in case of a person who is employed with
the affairs of the State. This draft Bill is significant.
32. A close and minute reading of the judgments in Vineet
Narain (supra) and Subramanian Swamy (supra) clearly
brings to the fore the aspect that the Constitution Bench had
found fault with foreclosing any independent investigation
before the papers are put for approval to the Government.
Moreover, the Court had expressly observed that under the
impugned provisions therein, the very group of persons,
35


namely, high-ranking bureaucrats whose misdeeds and
illegalities may have to be inquired into were to decide
whether CBI should even start an inquiry or investigation
against them or not. The finding on discrimination was only
an additional finding as is clear from the use of the word “also”
employed in the judgment in Subramanian Swamy (supra) in
para 65 set out hereinabove.
33. The draft, as proposed by the Law Commission,
addressed this issue squarely and vested the power in the
Lokpal in accordance with Chapter VII of the Lokpal Act. The
draft Bill carrying amendments to the Prevention of
Corruption Act was thereafter placed before the Rajya Sabha
Select Committee in August 2016.
RECOMMENDATIONS OF THE RAJYA SABHA SELECT
COMMITTEE:
34. The Select Committee, in its Report, observed that
several stakeholders stated that the grant of sanction of
prosecution by Lokpal/Lokayukta for prosecuting public
36


servants under Section 23 of the Lokpal Act would be ultra
vires Article 311 of the Constitution. It was felt that
disciplinary/appointing authority should retain the power to
grant sanction of prosecution of government servant as that
authority is well placed with the functioning and conduct of
his/her employee. (See para 15.2 of the Report). The Select
Committee further observed that almost all State
Governments/UT Administration were of the view that the
power of granting sanction for prosecution should remain with
the competent/appointing authority of appropriate
government for practical reasons and administrative
convenience.
35. What is significant is that there was no discussion on the
serious concerns pointed out by the Constitution Bench in
Subramanian Swamy (supra) about the unconstitutionality in
vesting the power of grant of approval in the Government
without any independent screening mechanism.
37


36. The ultimate Section 17A which emerged has been set out
in para 3 hereinabove.
QUALITATIVE DIFFERENCE BETWEEN THE ERSTWHILE
SECTION 6A AND THE PRESENT SECTION 17A:
37. It will be seen that unlike Section 6A which was
applicable to “any offence alleged to have been committed
under the Act” [except those mentioned in sub-section (2)],
Section 17A applies only to “any offence alleged to have been
committed by a public servant under this Act (the PC Act) where
the alleged offence is relatable to any recommendation made or
decision taken by such public servant in discharge of his official
functions or duties.” Section 17A also excepted 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. Section 6A applied only to
employees of the Central Government of the Level of Joint
Secretary and above and to such officers as are appointed by
the Central Government in corporations established by or
38


under any Central Act, Government companies, societies and
local authorities owned or controlled by that Government.
The Section, as such, did not mention about its applicability to
State employees. Section 17A applies to all public servants
and in that sense does not make any classification and also
applies to employees at the State Government level.
MANNER OF FUNCTIONING OF GOVERNMENT
MACHINERY:
38. The phrase “is relatable to any recommendation made or
decision taken” is crucial because it considerably limits the
applicability of the filter mechanism to offences relatable to
recommendations made or decisions taken in discharge of
official duties or functions of the public servant.
39. In A. Sanjeevi Naidu, Etc. vs. State of Madras and
10
Another , K.S. Hegde, J. felicitously speaking for the
Constitution Bench of six Judges of this Court, while
explaining the method of administration under the Council of

10
(1970) 1 SCC 443
39


Ministers with civil servants manning each department
observed as under: -
“9. We think that the above submissions advanced on
behalf of the appellants are without force and are based
on a misconception of the principles underlying our
Constitution. Under our Constitution, the Governor is
essentially a constitutional head, the administration of
State is run by the Council of Ministers. But in the very
nature of things, it is impossible for the Council of
Ministers to deal with each and every matter that comes
before the Government. In order to obviate that
difficulty the Constitution has authorised the
Governor under sub-article (3) of Article 166 to make
rules for the more convenient transation of business of
the Government of the State and for the allocation
amongst its Ministers, the business of the
Government. All matters excepting those in which
Governor is required to act in his discretion have to be
allocated to one or the other of the Ministers on the
advice of the Chief Minister. Apart from allocating
business among the Ministers, the Governor can also
make rules on the advice of his Council of Ministers for
more convenient transaction of business. He cannot only
allocate the various subjects amongst the Ministers but
may go further and designate a particular official to
discharge any particular function. But this again he can do
only on the advice of the Council of Ministers.
10. The cabinet is responsible to the Legislature for every
action taken in any of the Ministries. That is the essence of
joint responsibility. That does not mean that each and
every decision must be taken by the cabinet. The political
responsibility of the Council of Ministers does not and
cannot predicate the personal responsibility of the
Council of Ministers to discharge all or any of the
Governmental functions. Similarly an individual Minister
is responsible to the Legislature for every action taken or
omitted to be taken in his ministry. This again is a political
responsibility and not personal responsibility. Even the
40


most hard working Minister cannot attend to every
business in his department. If he attempts to do it, he
is bound to make a mess of his department. In every
well planned administration, most of the decisions are
taken by the civil servants who are likely to be experts
and not subject to political pressure. The Minister is
not expected to burden himself with the day-to-day
administration. His primary function is to lay down
the policies and programmes of his ministry while the
Council of Ministers settle the major policies and
programmes of the Government. When a civil servant
takes a decision, he does not do it as a delegate of his
Minister. He does it on behalf of the Government. It is
always open to a Minister to call for any file in his
ministry and pass orders. He may also issue
directions to the officers in his ministry regarding the
disposal of Government business either generally or
as regards any specific case. Subject to that over all
power, the officers designated by the “Rules” or the
standing orders, can take decisions on behalf of the
Government. These officers are the limbs of the
Government and not its delegates.”
40. Further, explaining how when civil servants discharge
the functions allotted to them, they do so as limbs of the
government and not as persons to whom the power of the
government has been delegated, this Court observed as
under:-
12. In Ishwarlal Girdharlal Joshi, etc. v. State of Gujarat and
Another, [(1968) 2 SCR p. 266], this Court rejected the
contention that the opinion formed by the Deputy
Secretary under Section 17(1) of the Land Acquisition Act
cannot be considered as the opinion of the State
Government. After referring to the rules of business
41


regulating the Government business, this Court observed
at p. 282:
“In our case the Secretaries concerned were given the
jurisdiction to take action on behalf of Government and
satisfy themselves about the need for acquisition under
Section 6, the urgency of the matter and the existence of
waste and arable lands for the application of sub-sections
(1) and (4) of Section 17. In view of the Rules of business
and the instructions their determination became the
determination of Government and no exception could be
taken.”
13. In Capital Multi-purpose Cooperative Society v. State of
M.P. and others, [ Civil Appeal No. 2201 of 1966, decided
on 30-3-1957] this Court dealing with the scope of Section
68 ( d ) of the Act observed that the State Government
obviously is not a natural person and therefore some
natural person has to give hearing on behalf of the State
Government and hence the hearing given by the special
secretary pursuant to the power conferred on him by the
business rules framed under Article 166 (3) is a valid
hearing.
14. As mentioned earlier in the very nature of things,
neither the Council of Ministers nor an individual Minister
can attend to the numerous matters that come up before
the Government. Those matters have to be attended to
and decisions taken by various officials at various levels.
When those officials discharge the functions allotted to
them, they are doing so as limbs of the Government and
not as persons to whom the power of the Government had
been delegated. In Halsbury Laws of England , Vol. I, 3rd
Edn. at p. 170, it is observed:
“Where functions entrusted to a Minister are performed
by an official employed in the Minister's department there
is in law no delegation because constitutionally the act or
decision of the official is that of the Minister.”
This crucial aspect of transacting business in government has
to be borne-in-mind while considering the validity of Section
42


17A. If as laid down in Sanjeevi Naidu (supra), the law is that
the officers take decisions on behalf of the government and
that they are limbs of the government and not its delegates,
one question that arises is should there not be an independent
agency which will screen the information before grant or
refusal of approval under Section 17A and ought that decision
not bind the government?
IMPORTANCE OF HONEST AND FEARLESS ADVICE BY
PUBLIC SERVANTS:
41. Civil servants should have the necessary freedom to take
administrative decisions and express their views fearlessly
without any threat of frivolous or vexatious complaints, for if
they were to be exposed to such complaints in future, there
will be a chilling effect on them and their hands will be
shackled. The net result will be a “policy paralysis”. It will be
the tendency of every civil servant then to play it safe by
taking no decision at all. Though said in the context of a
43


debate on the erstwhile Section 6A, the observations of Shri
Shivraj V. Patil in the Lok Sabha merits mention herein: -
“I have seen files which have been moving not, only
from one table to the other, but they have been moving
from one Ministry to the other . If the Ministry of
Defence has to take a decision, the matter is referred
to the Finance Ministry. The Finance Ministry's
opinion is obtained and then the Finance Ministry also
does not give the final opinion. It says that it could go
to the Industries Ministry and let the Industries
Ministry decide whether a particular thing is to be
imported or whether it can be manufactured in the
country. If the Industries Ministry says that can be
manufactured in the country or it can be imported
from outside also, then they would say that they
should examine the legal position. So, the matter goes
to the Law Ministry and it opines something and then
it comes back to the Ministry of Defence. Then, the
Ministry of Defence again says that they have taken
decisions separately sitting in their own offices, but
they should take the decision jointly sitting in a
meeting. Again, the file goes back and then the
officers have to come together and take a decision.
The result of this kind of procedure adopted is that not
only months, but years pass before the final decision
is taken. When years pass, the cost of acquiring the
equipments or the cost of implementing a project goes
up by 25 per cent or 30 per cent or even 50 per cent.
The delays are there; time has its own cost. If you do
not respect time now, it will certainly increase the
cost. This aspect has to be considered. So, while
governing and administering, a balanced attitude is
required; and that balanced attitude is that there
should not be corruption and at the same time, there
44


should not be undue delays which can increase the
cost of doing things.
So, it is easy to allege anything against anybody but it is
very difficult to substantiate an allegation. As a
Government it has a responsibility to see that there is no
corruption and everything that is necessary for this
purpose should be done. At the same time it has a
responsibility to see that delays are avoided. That is a
very important thing. That is why we shall have to be
careful in seeing that corruption is not there, delay is
not there and the innocent people are not put to any

inconvenience.”
[Emphasis supplied]
42. This Court in State of Bihar and Others vs. Kripalu
11
Shankar and Others , while holding how file notings cannot
be the basis for an action for contempt made the following
telling observations. Speaking through V. Khalid, J., this Court
observed thus: -
“13. In our considered view the internal notes file of the
Government, maintained according to the rules of
business, is a privileged document. If the government
claims privilege or quasi-privilege regarding the notes
file we will not be justified in rejecting the claim outright.
In this case, the notes file was brought to the court not
voluntarily by the Government. It was summoned by the
court. The court can always look into it. The right of the
court to look into any file can never be denied. The
contents of the notes file brought to court got
communicated to the court because the court looks into it.
It would be dangerous to found an action for contempt,

11
(1987) 3 SCC 34
45


for the views expressed in the notes file, on the
discovery of unpleasant or unsavoury notes, on a
perusal of the notes file by the court after getting them
summoned. This would impair the independent
functioning of the civil service essential to
democracy. This would cause impediments in the
fearless expression of opinion by the officers of the
Government. The notings on files differ from officer to
officer. It may well be that the notes made by a
particular officer, in some cases, technically
speaking is in disobedience of an order of the court or
may be in violation of such order but a more
experienced officer sitting above him can always
correct him. To rely upon the notings in a file for the
purpose of initiating contempt, in our view, therefore,
would be to put the functioning of the Government out
of gear. We must guard against being over-sensitive,
when we come across objectionable notings made by
officers, sometimes out of inexperience, sometimes
out of over-zealousness and sometimes out of
ignorance of the nuances of the question of law
involved.
30. Before parting with this case we would like to observe
the need for restraint and care in dealing with the internal
files of the Government. We have already indicated its
privileged position and limited areas where exposure is
permissible of the notings in the file. This is not to say that
absolute privilege can be claimed of its exposure and
protection from the view of the courts. But what is to be
borne in mind is that the notings in the departmental
files by the hierarchy of officials are meant for the
independent discharge of official duties and not for
exposure outside. In a democracy, it is absolutely
necessary that its steel frame in the form of civil
service is permitted to express itself freely
uninfluenced by extraneous considerations. It might
well be that even orders of court come in for adverse
remarks by officers dealing with them, confronted with
difficult situations to straightway obey such orders.
Notings made on such occasions are only for the benefit
of the officers concerned. When a subordinate official
46


commits a mistake higher official will always correct it. It
is necessary for courts also to view such notings in the
proper perspective. In this case, the court, after looking
into the notes file could have passed appropriate orders
giving relief to the affected party and expressing its
displeasure at the manner in which its order was
implemented instead of initiating action on the notings
made in the file. That way the court would have enhanced
its prestige.”

12
43. In P. Sirajuddin, Etc vs. State of Madras, Etc , speaking
about the incalculable harm the lodging of FIR can do to an
honest public servant, this Court observed as under:-
“17. … Before a public servant, whatever be his status, is
publicly charged with acts of dishonesty which amount to
serious misdemeanour or misconduct of the type alleged
in this case and a first information is lodged against him,
there must be some suitable preliminary enquiry into the
allegations by a responsible officer. The lodging of such
a report against a person, specially one who like the
appellant occupied the top position in a department,
even if baseless, would do incalculable harm not only
to the officer in particular but to the department he
belonged to, in general. If the Government had set up a
Vigilance and Anti-Corruption Department as was done in
the State of Madras and the said department was entrusted
with enquiries of this kind, no exception can be taken to
an enquiry by officers of this department but any such
enquiry must proceed in a fair and reasonable
manner…...”
[Emphasis supplied]

12
(1970) 1 SCC 595
47


44. Very recently, I had occasion to make the following
observations in MMTC Limited vs. Anglo American
13
Metallurgical Coal Pvt. Limited about the need to protect
the honest public servants who are faced with the duty to take
decisions during the day-to-day administration: -
“99. Before we part, a small postscript. Whether in
Government, Public Sector Corporations or even in the
private sector, the driving force of the entity are the
persons who administer them. A certain play in the joints
is inevitable for their day-to-day functioning. If they are
shackled with the fear that, their decisions taken for the
day-to-day administration, could years later with the
benefit of hindsight, be viewed with a jaundiced eye, it will
create a chilling effect on them. A tendency to play it safe
will set in. Decision making will be avoided. Policy
paralysis will descend. All this will in the long run prove
detrimental not just to that entity but to the nation itself. We
are not to be understood to be condoning decisions taken
for improper purposes or extraneous considerations. All
that we are at pains to drive home is that great caution and
circumspection have to be exercised before such
allegations are brought forward and adequate proof must
exist to back them. Otherwise for fear that carefully built
reputations could be casually tarnished, best of talent will
not be forthcoming, especially for government and public
sector corporations.”



13
2025 INSC 1279
48


CONSTITUTIONAL VALIDITY OF SECTION 17A:
45. Viewed in this background, the object behind Section
17A to provide that without the previous approval, no police
officer shall conduct any enquiry or inquiry or investigation
into any offence alleged to have been committed by a public
servant where the alleged offence is relatable to any
recommendation made or decision taken by such public
servant in discharge of his official functions or duties, cannot
be found fault with. However, the question that arises is,
whether Section 17A addresses the issue of an independent
agency being involved in the filtering mechanism before the
decision is taken by the Government.
46. As adverted to earlier, a minute reading of the judgment
in Subramanian Swamy (supra) would clearly indicate that
the reasoning was not only on the ground of untenable
classification contrary to Article 14 but on larger grounds of
upholding the majesty of the rule of law because Section 6A
was perceived as foreclosing any enquiry before grant or
49


rejection of approval. If the ingredients of Section 6A were to
be reincarnated and made applicable to all public servants
irrespective of the level at which they are working, the said
section would still be unconstitutional, applying the ratio,
spirit and essence of Subramanian Swamy (supra) . As
noticed earlier, there is a qualitative difference between
Section 6A and the present Section 17A.
EXISTING STANDARD OPERATING PROCEDURE (SOP)
GOVERNING THE GRANT/REJECTION OF APPROVAL:
47. When a query was put to the learned Solicitor General as
to whether there was any Standard Operating Procedure
[SOP] for processing of cases under Section 17A of the Act, the
learned Solicitor General produced before the Court a
Standard Operating Procedure circulated with the letter of
03.09.2021 of the Additional Secretary, Government of India,
Ministry of Personnel, Public Grievances and Pensions to all
the Chief Secretaries of all State Governments/Union Territory
administrations. The SOP provides for –
50


“a) Stage-wise processing of information received by a
Police Officer;
b) Specifying the rank of the police officer entitled to seek
prior approval under Section 17A in respect of different
categories of public servants;
c) Consideration of the proposals under Section 17A of the
Act by the Appropriate Government or Authority;
d) Laying down of single window procedure to specify
receipt stage of the proposal; and
e) Check List for submitting proposals under Section
17A.”

48. The SOP provides that on receipt of an information, the
police officer shall place the matter before the police officer
of the appropriate rank for seeking prior approval under
Section 17A of the Act, by such police officer of appropriate
rank. Thereafter, it states that the police officer of the
appropriate rank shall make a proposal to the appropriate
government/authority under Section 17A of the Act, in respect
of a person who is or has been a public servant in accordance
with the prescription in Annexure-I thereon. Thereafter, it
states that the police officer of the appropriate rank shall
decide whether the information received, merits to be a)
enquired; or b) inquired into; or c) investigated. The police
51


officer of the appropriate rank shall thereafter make a
proposal containing the following information:
“i. the office held by the public servant(s) when the
offence was alleged to have been committed;
ii. the present rank and status of the public servant; or
iii. the post/office last held by the person who ceases to
be a public servant; and
iv. the appropriate Government or Authority, before
whom the proposal of previous approval is to be made in
accordance with the provisions of clauses (a) to (c) of
section 17A of the Act.
Thereafter, it states that the said proposal shall be made to the
appropriate government or authority through the single
window procedure as laid down by the SOPs and shall ensure
that the proposal is in accordance with the requirements laid
down in the Check List and shall enclose legible and
authenticated documents as may be required. Separate
proposals were to be submitted for enquiry/inquiry or
investigation, as the case may be. Separate proposals were to
be made in respect of each public servant, where a composite
offence is alleged against more than one public servant and
the proposal shall be submitted in a sealed cover in
52


accordance with the Check List as prescribed in Annexure-2
thereon. The Check List is as follows: -
Annexure-II
CHECK LIST OF ITEMS FOR MATTERS RELATING TO SECTION
17A OF THE PREVENTION OF CORRUPTION ACT, 1988

53

54

Signature_________________
Date:__________________

Name of Police officer authorised
to seek prior approval
(in Block letters)_______________________________

Designation________________
Telephone No.______________
email ID____________________
49. The Check List makes for an interesting reading. Apart
from some biographical particulars, Serial No.4 prescribes
the following: “Whether the complaint prima facie reveals
deriving of an undue advantage by a public servant for self or
any other person? [please furnish details]

55

SOP – DOES NOT CONTEMPLATE SCREENING BY AN
INDEPENDENT AGENCY:
50. To say the least, the SOP is only a compilation of
documents and does not indicate any independent
examination being carried out by any independent agency.
The crucial holding in Subramanian Swamy (supra) that the
investigating agencies are not able to proceed even to collect
the material to unearth prima facie substance into the merits
of the allegations has not been addressed at all in the SOP.
The further finding in Subramanian Swamy (supra) that the
criminal justice system mandates that any investigation into
the crime should be fair, in accordance with law and should
not be tainted and it is important to ensure that interested or
influential persons are not able to misdirect, hijack and
56


throttle a fair investigation has not been recognized at all in
the SOP.
51. There cannot be two opinions on the fact that honest and
independent public servants have to be protected from
frivolous prosecutions. In fact, that is the reason why when the
validity of Section 197 CrPC was questioned, this Court in
Matajog Dobey (supra) held as follows:-
“13 … Public servants have to be protected from
harassment in the discharge of official duties while
ordinary citizens not so engaged do not require this
safeguard. …”

52. The only distinction is that Section 197 CrPC like Section
19 of the Act would operate at the stage of cognizance. By then
the material is collected by the investigating agency and that
the sanctioning authority does is to weigh the material and
grant or refuse sanction. The sanctioning authority is not
groping in the dark unlike in a scenario that is prescribed in
the SOP of the government, as set out earlier.

57


THROWING BABY OUT WITH THE BATHWATER – NOT
AN OPTION:
53. What is the solution then? Is the option then to strike
down Section 17A and throw the baby out with the bathwater?
Certainly not. If honest public servants are not given a basic
assurance that decisions taken by them will not be subjected
to frivolous complaints, it is the nation that will suffer. Public
servants will resort to a play it safe syndrome and that will
result in policy paralysis. The panacea of striking down will
turn out to be worse than the disease. Instead, the correct
course is to find whether within the framework of law the
mischief pointed out in Subramanian Swamy (supra) and
Vineet Narain (supra) could be addressed in the process of
grant or refusal of approval under Section 17A.
54. Vineet Narain (supra) found the executive instructions to
be ultra vires the statutory provisions and held the foreclosing
of enquiry, to be a serious threat to the rule of law.
Subramanian Swamy (supra) echoed the same sentiments
58


and additionally found classification to be invalid. There can
be no manner of doubt that if an independent inquiry was to
precede a grant of approval no fault can be found. Section 17A
has no vice of invalid classification.
POSSIBILITY OF ABUSE – NO GROUND TO HOLD
PROVISION UNCONSTITUTIONAL:
55. There is no merit in the submission of Mr. Prashant
Bhushan that Section 17A could be struck down because there
is a possibility of the power being abused. It is well settled
that mere possibility of an abuse of an otherwise valid
provision cannot be a ground for declaring a provision
unconstitutional. The possibility of abuse of a statute
otherwise valid does not impart to it any element of invalidity.
The converse must also follow that a statute which is otherwise
invalid as being unreasonable cannot be saved by its being
administered in a reasonable manner. The constitutional
validity of the statute would have to be determined on the
basis of its provisions and on the ambit of its operation as
59


reasonably construed. [See The Collector of Customs,
14
Madras vs. Nathella Sampathu Chetty and Another ].
56. This case cannot be viewed only in a binary manner, that
is either to accept the SOP of the government and uphold the
provision under the rubric of protecting honest public
servants or to strike down the law on the ground that the SOP
does not contemplate an independent inquiry.
57. The SOP is only an executive instruction. Section 17A has
to be construed with the interpretative tools at our command.
A constitutional court in this scenario cannot throw up its
hands in despair and say that it is caught between Scylla and
Charybdis – between a rock and a hard place. This Court in
15
Manzoor Ali Khan vs. Union of India and Others , while
upholding a validity of Section 19 of the Act made the
following observations:-
“13. Thus, while it is not possible to hold that the
requirement of sanction is unconstitutional, the competent
authority has to take a decision on the issue of sanction
expeditiously as already observed. A fine balance has to

14
(1962) 3 SCR 786
15
(2015) 2 SCC 33
60


be maintained between need to protect a public
servant against mala fide prosecution on the one hand
and the object of upholding the probity in public life in
prosecuting the public servant against whom prima
facie material in support of allegation of corruption
exists, on the other hand.”
(Emphasis supplied)

58. As was rightly observed, a fine balance has to be
maintained between the need to protect a public servant
against mala fide prosecution on the one hand and the object
of upholding the probity in public life in prosecuting the
public servant against whom prima facie material in support
of allegation of corruption exists, on the other. It is necessary
to notice that Article 30(2) of the United Nations Convention
Against Corruption also advocates the striking of adequate
balance by providing as follows:-
“Each State Party shall take such measures as may be
necessary to establish or maintain, in accordance with its
legal system and constitutional principles, an appropriate
balance between any immunities or jurisdictional
privileges accorded to its public officials for the
performance of their functions and the possibility, when
necessary, of effectively investigating, prosecuting and
adjudicating offences established in accordance with this
Convention.”

61


59. Echoing the need for an independent screening
mechanism by an impartial agency before prior approval is
granted, the Fourth Report (January 2007), of the Second
Administrative Reforms Commission had the following
emphatic observations to make: -
7.1 The raison d’être of vigilance activity is not to reduce
but to enhance the level of managerial efficiency and
effectiveness in the organization. Risk-taking should form
part of government functioning. Every loss caused to the
organization, either in pecuniary or non pecuniary terms,
need not necessarily become the subject matter of a
vigilance inquiry. One possible test for determining the
bona-fides could be whether a person of common
prudence working within the ambit of the prescribed
rules, regulations and instructions, would have taken the
decision in the prevailing circumstances in the
commercial/operational interests of the organization.
7.5 There is a general perception among officers and
managers that anti-corruption agencies do not fully
appreciate administrative and business risks and that they
tend to misinterpret the motives where the decision has
gone awry or where a loss is caused in a commercial
transaction. Such a perception is not without foundation. It
is essential therefore for the investigating agencies to
establish that their actions are designed in such a way as
to protect honest officers. This depends on the ethical
standards and professional competence of the personnel
manning anti-corruption agencies. Allegations can be
made by dishonest subordinates against whom the officer
has initiated disciplinary proceedings or he may have
stood in the way of dishonest intentions of the corrupt
subordinate. More sinister could be the role of
“aggrieved” outsiders who failed to have their wrongful
way.
62


7.6 It is generally assumed by the investigating agencies
that (1) a decision should be wrong for there to be
corruption, and (2) it is easier to involve everyone in the
chain of decision making and allege ‘conspiracy’ than to
take pains to find out the individuals who are actually
involved. It is often overlooked that a corruption can take
place even when the decisions are correct and that it also
takes place at specific points inside and outside the
system. This entrenched approach to investigation has led
to conviction rates being dismally low, honest
functionaries getting demoralized and dishonest ones
often going scot free.
7.7 The crucial question is one of ensuring a balance
between equality before law and protection of an
honest civil servant who has his reputation to
safeguard, unlike a corrupt one. Such a balance could
be achieved by an impartial agency which would
screen cases of prior permission for investigation and
sanction prosecution of public servants involved in
corruption. The Commission has already
recommended that the Central Vigilance Commission
should be empowered to give such permission.
[Emphasis supplied]

60.
Here is where the need for an independent agency to
consider the matter before the grant or refusal of the approval
under Section 17A becomes primordial. The stage is set now
to have a closer look at the provisions of the Lokpal Act.


63


THE LOKPAL AND THE LOKAYUKTAS ACT, 2013:
61. The Lokpal Act was enacted to provide for the
establishment of a body of Lokpal for the Union and Lokayukta
for States to inquire into the allegations of corruption against
certain public functionaries and for matters connected
therewith or incidental thereto. The Act was enacted to give
effect to the United Nations Convention Against Corruption. It
was enacted to give effect to the Government’s commitment
to clean and responsive governance and to punish acts of
corruption. It was enacted for providing prompt and fair
investigation and prosecution in cases of corruption.
62. Section 3 provides for establishment of Lokpal and reads
as follows: -
“ 3. Establishment of Lokpal.- (1) On and from the
commencement of this Act, there shall be established, for
the purpose of this Act, a body to be called the "Lokpal".
(2) The Lokpal shall consist of-
(a) a Chairperson, who is or has been a Chief Justice
of India or is or has been a Judge of the Supreme Court or
an eminent person who fulfils the eligibility specified in
clause (b) of sub-section (3); and
64


(b) such number of Members, not exceeding eight
out of whom fifty per cent shall be Judicial Members:
Provided that not less than fifty per cent of the
Members of the Lokpal shall be from amongst the persons
belonging to the Scheduled Castes, the Scheduled Tribes.
Other Backward Classes, Minorities and women.
(3) A person shall be eligible to be appointed,-
(a) as a Judicial Member if he is or has been a Judge
of the Supreme Court or is or has been a Chief Justice of a
High Court;
(b) as a Member other than a Judicial Member, if he
is a person of impeccable integrity and outstanding ability
having special knowledge and expertise of not less than
twenty-five years in the matters relating to anti-corruption
policy public administration, vigilance, finance including
insurance and banking, law and management.
(4) The Chairperson or a Member shall not be-
(i) a member of Parliament or a member of the
Legislature of any State or Union territory;
(ii) a person convicted of any offence involving
moral turpitude;
(iii) a person of less than forty-five years of age, on
the date of assuming office as the Chairperson or
Member, as the case may be;
(iv) a member of any Panchayat or Municipality;
(v) a person who has been removed or dismissed
from the service of the Union or a State,
and shall not hold any office of trust or profit (other than
his office as the Chairperson or a Member) or be affiliated
with any political party or carry on any business or
practise any profession and, accordingly, before he
65


enters upon his office, a person appointed as the
Chairperson or a Member, as the case may be, shall, if-
(a) he holds any office of trust or profit, resign from
such office; or
(b) he is carrying on any business, sever his
connection with the conduct and management of such
business; or
(c) he is practising any profession, cease to practise

such profession.”
63. Section 4 prescribes that the Chairperson and Members
of the Lokpal shall be appointed by the President after
obtaining the recommendations of a Selection Committee
consisting of a) the Prime Minister as the Chairperson; b) the
Speaker of the House of the People as Member; c) the Leader
of Opposition in the House of the People as Member; d) the
Chief Justice of India or a Judge of the Supreme Court
nominated by the Chief Justice as Member and e) one eminent
jurist, as recommended by the Chairperson and Members
referred to in Clauses (a) to (d) to be nominated by the
President as Member.
64. Section 11 provides for the establishment of an Inquiry
Wing of the Lokpal. It prescribes that the Lokpal shall
66


constitute an Inquiry Wing headed by the Director of Inquiry
for the purpose of conducting preliminary inquiry into any
offence alleged to have been committed by a public servant
punishable under the Act.
65.
Section 11, which occurs in Chapter III, reads as under: -
“11. Inquiry Wing.- (1) Notwithstanding anything
contained in any law for the time being in force, the Lokpal
shall constitute an Inquiry Wing headed by the Director of
Inquiry for the purpose of conducting preliminary inquiry
into any offence alleged to have been committed by a
public servant punishable under the Prevention of
Corruption Act, 1988 (49 of 1988):
Provided that till such time the Inquiry Wing is constituted
by the Lokpal, the Central Government shall make
available such number of officers and other staff from its
Ministries or Departments, as may be required by the
Lokpal, for conducting preliminary inquiries under this
Act.
(2) For the purposes of assisting the Lokpal in conducting
a preliminary inquiry under this Act, the officers of the
Inquiry Wing not below the rank of the Under Secretary to
the Government of India, shall have the same powers as
are conferred upon the Inquiry Wing of the Lokpal under
section 27.”
66. Chapter IV speaks of the Prosecution Wing. Section 12,
which occurs in Chapter XII, reads as under: -
67


“12. Prosecution Wing.- (1) The Lokpal shall, by
notification, constitute a Prosecution Wing headed by the
Director of Prosecution for the purpose of prosecution of
public servants in relation to any complaint by the Lokpal
under this Act:
Provided that till such time the Prosecution Wing is
constituted by the Lokpal, the Central Government shall
make available such number of officers and other staff
from its Ministries or Departments, as may be required by
the Lokpal, for conducting prosecution under this Act:
(2) The Director of Prosecution shall, after having been so
directed by the Lokpal, file a case in accordance with the
findings of investigation report, before the Special Court,
and take all necessary steps in respect of the prosecution
of public servants in relation to any offence punishable
under the Prevention of Corruption Act, 1988 (49 of 1988).
(3) The case under sub-section (2), shall be deemed to be
a report, filed on completion of investigation, referred to
in section 173 of the Code of Criminal Procedure, 1973 (2

of 1974).”

67. Chapter VI deals with jurisdiction in respect of inquiry by
the Lokpal. Section 14, which occurs in Chapter VI, reads as
under: -
“ 14. Jurisdiction of Lokpal to include Prime Minister,
Ministers, Members of Parliament, Groups A, B, C
and D officers and Officials of Central Government.-
(1) Subject to the other provisions of this Act, the Lokpal
shall inquire or cause an inquiry to be conducted into any
matter involved in, or arising from, or connected with, any
68


allegation of corruption made in a complaint in respect of
the following, namely:-
(a) any person who is or has been a Prime Minister:
Provided that the Lokpal shall not inquire into any
matter involved in, or arising from, or connected with, any
such allegation of corruption against the Prime Minister,-
(i) insofar as it relates to international relations,
external and internal security, public order, atomic
energy and space;
(ii) unless a full bench of the Lokpal consisting of its
Chairperson and all Members considers the initiation of
inquiry and at least two-thirds of its Members approves of
such inquiry:
Provided further that any such inquiry shall be held in
camera and if the Lokpal comes to the conclusion that the
complaint deserves to be dismissed, the records of the
inquiry shall not be published or made available to
anyone;
(b) any person who is or has been a Minister of the
Union;
(c) any person who is or has been a member of
either House of Parliament;
(d) any Group 'A' or Group 'B' officer or equivalent or
above, from amongst the public servants defined in sub-
clauses (i) and (ii) of clause (c) of section 2 of the
Prevention of Corruption Act, 1988 (49 of 1988) when
serving or who has served, in connection with the affairs
of the Union;
(e) any Group ‘C’ or Group 'D' official or equivalent, from
amongst the public servants defined in sub-clauses (i) and
(ii) of clause (c) of section 2 of the Prevention of
Corruption Act, 1988 (49 of 1988) when serving or who has
69


served in connection with the affairs of the Union subject
to the provision of sub-section (1) of section 20;
(f) any person who is or has been a chairperson or
member or officer or employee in any body or Board or
corporation or authority or company or society or trust or
autonomous body (by whatever name called) established
by an Act of Parliament or wholly or partly financed by the
Central Government or controlled by it:
Provided that in respect of such officers referred to in
clause (d) who have served in connection with the affairs
of the Union or in any body or Board or corporation or
authority or company or society or trust or autonomous
body referred to in clause (e) but are working in
connection with the affairs of the State or in any body or
Board or corporation or authority or company or society
or trust or autonomous body (by whatever name called)
established by an Act of the State Legislature or wholly or
partly financed by the State Government or controlled by
it, the Lokpal and the officers of its Inquiry Wing or
Prosecution Wing shall have jurisdiction under this Act in
respect of such officers only after obtaining the consent of
the concerned State Government;
(g) any person who is or has been a director, manager,
secretary or other officer of every other society or
association of persons or trust (whether registered under
any law for the time being in force or not), by whatever
name called, wholly or partly financed by the
Government and the annual income of which exceeds
such amount as the Central Government may, by
notification, specify:
(h) any person who is or has been a director, manager,
secretary or other officer of every other society or
association of persons or trust (whether registered under
any law for the time being in force or not) in receipt of any
70


donation from any foreign source under the Foreign
Contribution (Regulation) Act, 2010 (42 of 2010) in excess
of ten lakh rupees in a year or such higher amount as the
Central Government may, by notification, specify.
Explanation . For the purpose of clauses (f) and (g), it is
hereby clarified that any entity or institution, by whatever
name called, corporate, society, trust, association of
persons, partnership, sole proprietorship, limited liability
partnership (whether registered under any law for the
time being in force or not), shall be the entities covered in
those clauses:
Provided that any person referred to in this clause shall
be deemed to be a public servant under clause (c) of
section 2 of the Prevention of Corruption Act, 1988 (49 of
1988) and the provisions of that Act shall apply
accordingly.
(2) Notwithstanding anything contained in sub-section (1),
the Lokpal shall not inquire înto any matter involved in, or
arising from, or connected with, any such allegation of
corruption against any member of either House of
Parliament in respect of anything said or a vote given by
him in Parliament or any committee thereof covered
under the provisions contained in clause (2) of article 105
of the Constitution.
(3) The Lokpal may inquire into any act or conduct of any
person other than those referred to in sub-section (1), if
such person is involved in the act of abetting, bribe giving
or bribe taking or conspiracy relating to any allegation of
corruption under the Prevention of Corruption Act, 1988
(49 of 1988) against a person referred to in sub-section
(1):
Provided that no action under this section shall be taken
in case of a person serving in connection with the affairs
of a State, without the consent of the State Government.
71


(4) No matter in respect of which a complaint has been
made to the Lokpal under this Act, shall be referred for
inquiry under the Commissions of Inquiry Act, 1952 (60 of
1952).
Explanation .- For the removal of doubts, it is hereby
declared that a complaint under this Act shall only relate
to a period during which the public servant was holding
or serving in that capacity.”

68. It will be noticed that Lokpal has jurisdiction to inquire or
cause an inquiry to be conducted into any matter involved in,
or arising from, or connected with, any allegation of
corruption made in a complaint even in respect of the Prime
Minister of the country. Apart from the Prime Minister, the
Lokpal has jurisdiction over the Ministers of the Union and
other civil servants mentioned therein.
69. Chapter VII prescribes the procedure in respect of
preliminary inquiry and investigation. Section 20, which
occurs in Chapter VII, reads as under:-
“ 20. Provisions relating to complaints and
preliminary inquiry and investigation.- (1) The Lokpal
on receipt of a complaint, if it decides to proceed further,
may order-
72


(a) preliminary inquiry against any public servant by its
Inquiry Wing or any agency (including the Delhi Special
Police Establishment) to ascertain whether there exists a
prima facie case for proceeding in the matter; or
(b) investigation by any agency (including the Delhi
Special Police Establishment) when there exists a prima
facie case:
Provided that the Lokpal shall if it has decided to proceed
with the preliminary inquiry, by a general or special
order, refer the complaints or a category of complaints or
a complaint received by it in respect of public servants
belonging to Group A or Group B or Group C or Group D
to the Central Vigilance Commission constituted under
sub-section (1) of section 3 of the Central Vigilance
Commission Act, 2003 (45 of 2003) :
Provided further that the Central Vigilance Commission in
respect of complaints referred to it under the first proviso,
after making preliminary inquiry in respect of public
servants belonging to Group A and Group B, shall submit
its report to the Lokpal in accordance with the provisions
contained in sub-sections (2) and (4) and in case of public
servants belonging to Group C and Group D, the
Commission shall proceed in accordance with the
provisions of the Central Vigilance Commission Act, 2003:
Provided also that before ordering an investigation under
clause (b), the Lokpal shall call for the explanation of the
public servant so as to determine whether there exists a
prima facie case for investigation:
Provided also that the seeking of explanation from the
public servant before an investigation shall not interfere
with the search and seizure, if any, required to be
undertaken by any agency (including the Delhi Special
Police Establishment) under this Act.
73


(2) During the preliminary inquiry referred to in sub-
section (1), the Inquiry Wing or any agency (including the
Delhi Special Police Establishment) shall conduct a
preliminary inquiry and on the basis of material,
information and documents collected seek the comments
on the allegations made in the complaint from the public
servant and the competent authority and after obtaining
the comments of the concerned public servant and the
competent authority, submit, within sixty days from the
date of receipt of the reference, a report to the Lokpal.
(3) A Bench consisting of not less than three Members of
the Lokpal shall consider every report received under
sub-section (2) from the Inquiry Wing or any agency
(including the Delhi Special Police Establishment), and
after giving an opportunity of being heard to the public
servant, decide whether there exists a prima facie case,
and proceed with one or more of the following actions,
namely:-
(a) investigation by any agency or the Delhi Special Police
Establishment, as the case may be;
(b) initiation of the departmental proceedings or any
other appropriate action against the concerned public
servants by the competent authority;
(c) closure of the proceedings against the public servant
and to proceed against the complainant under section 46.
(4) Every preliminary inquiry referred to in sub-section
(1) shall ordinarily be completed within a period of ninety
days and for reasons to be recorded in writing, within a
further period of ninety days from the date of receipt of
the complaint.
(5) In case the Lokpal decides to proceed to investigate
into the complaint, it shall direct any agency (including
the Delhi Special Police Establishment) to carry out the
74


investigation as expeditiously as possible and complete
the investigation within a period of six months from the
date of its order:
Provided that the Lokpal may extend the said period by a
further period not exceeding of six months at a time for
the reasons to be recorded in writing.
(6) Notwithstanding anything contained in section 173 of
the Code of Criminal Procedure, 1973 (2 of 1974), any
agency (including the Delhi Special Police Establishment)
shall, in respect of cases referred to it by the Lokpal,
submit the investigation report under that section to the
court having jurisdiction and forward a copy thereof to the
Lokpal.
(7) A bench consisting of not less than three Members of
the Lokpal shall consider every report received by it
under sub-section (6) from any agency (including the
Delhi Special Police Establishment) and after obtaining
the comments of the competent authority and the public
servant may-
(a) grant sanction to its Prosecution Wing or investigating
agency to file charge-sheet or direct the closure of report
before the Special Court against the public servant;
(b) direct the competent authority to initiate the
departmental proceedings or any other appropriate
action against the concerned public servant.
(8) The Lokpal may, after taking a decision under sub-
section (7) on the filing of the charge-sheet, direct its
Prosecution Wing or any investigating agency (including
the Delhi Special Police Establishment) to initiate
prosecution in the Special Court in respect of the cases
investigated by the agency.
(9) The Lokpal may, during the preliminary inquiry or the
investigation, as the case may be. pass appropriate
75


orders for the safe custody of the documents relevant to
the preliminary inquiry or, as the case may be,
investigation as it deems fit.
(10) The website of the Lokpal shall, from time to time and
in such manner as may be specified by regulations,
display to the public, the status of number of complaints
pending before it or disposed of by it.
(11) The Lokpal may retain the original records and
evidences which are likely to be required in the process
of preliminary inquiry or investigation or conduct of a
case by it or by the Special Court.
(12) Save as otherwise provided, the manner and
procedure of conducting a preliminary inquiry or
investigation (including such material and documents to
be made available to the public servant) under this Act,
shall be such as may be specified by regulations.”
70. It will be noticed that, under Section 20, on receipt of a
complaint, the Lokpal may decide to proceed further or may
decide otherwise. If it decides to proceed further, the Lokpal
may order
a) the preliminary inquiry against any public servant by
its Inquiry Wing or any agency (including the DSPE) to
ascertain whether there exists a prima face case for
proceeding in the matter; or
76


b) investigation by any agency (including the DSPE)
when there exists a prima facie case ordinarily.
71. In case of utterly frivolous complaints, the Lokpal may
decide not to proceed further in its discretion for reasons to
be recorded. If it decides to proceed further, it may order a
preliminary inquiry to ascertain whether there exists a prima
facie case and investigation by any agency where prima facie
case exists. The proviso prescribes that the Lokpal shall if it
has decided to proceed with the preliminary inquiry, by a
general or special order, refer the complaints or a category of
complaints or a complaint received by it in respect of public
servants belonging to Group A or Group B or Group C or
Group D to the Central Vigilance Commission [CVC]
constituted under sub-section (1) of Section 3 of the Central
Vigilance Act, 2003. The proviso further provides that the
CVC in respect of complaints referred to it under the first
proviso, after making preliminary inquiry in respect of public
servants belonging to Group A and Group B, shall submit its
77


report to the Lokpal in accordance with the provisions
contained in sub-Sections (2) and (4) and in case of public
servants belonging to Group C and Group D, the Commission
shall proceed in accordance with the provisions of the CVC
Act, 2003.
72. In case the Lokpal decides to order an investigation,
before ordering the investigation, the Lokpal shall call for the
explanation of the public servant so as to determine whether
there exists a prima facie case for investigation. Sub-section
(2) of Section 20 prescribes that during the preliminary
enquiry referred to in sub-section (1), the Inquiry Wing or any
agency (including the DSPE) shall conduct a preliminary
inquiry and on the basis of material, information and
documents collected, seek the comments on the allegations
made in the complaint from the public servant and the
competent authority and after obtaining the comments of the
concerned public servant and the competent authority,
78


submit, within 60 days from the date of receipt of the
reference, a report to the Lokpal.
73. What is crucial to notice is that in proceedings under the
Lokpal Act when a preliminary inquiry is conducted an
opportunity is given not only to the public servant to explain
but also opportunity is given to the competent authority
before furnishing a report to the Lokpal.
74. Competent authority has been defined in Section 2(c) of
the Act as under:-
“(c) "competent authority", in relation to-
(1) the Prime Minister, means the House of the People;
(ii) a member of the Council of Ministers, means the Prime
Minister;
(iii) a member of Parliament other than a Minister, means-
(A) in the case of a member of the Council of States, the
Chairman of the Council; and
(B) in the case of a member of the House of the People, the
Speaker of the House;
(iv) an officer in the Ministry or Department of the Central
Government, means the Minister in charge of the Ministry
or Department under which the officer is serving;
79


(v) a chairperson or members of any body or Board or
corporation or authority or company or society or
autonomous body (by whatever name called) established
or constituted under any Act of Parliament or wholly or
partly financed by the Central Government or controlled
by it, means the Minister in charge of the administrative
Ministry of such body or Board or corporation or authority
or company or society or autonomous body;
(vi) an officer of any body or Board or corporation or authority
or company or society or autonomous body (by whatever
name called) established or constituted under any Act of
Parliament or wholly or partly financed by the Central
Government or controlled by it, means the head of such
body or Board or corporation or authority or company or
society or autonomous body;
(vii) in any other case not falling under sub-clauses (i) to (vi)
above, means such Department or authority as the Central
Government may, by notification, specify:
Provided that if any person referred to in sub-clause (v) or
sub-clause (vi) is also a Member of Parliament, then, the
competent authority shall be-
(A) in case such member is a member of the Council of States,
the Chairman of the Council; and
(B) in case such member is a member of the House of the
People, the Speaker of the House;”

75. Reverting back to Section 20 of the Lokpal Act, sub-
section (7) of Section 20 prescribes that not less than three
Members of the Lokpal shall consider every report received
by it under sub-section (6) from any agency (including the
80


DSPE) and after obtaining the comments of the competent
authority and the public servant may - grant sanction to its
Prosecution Wing or investigation agency to file charge-sheet
or direct the closure of report before the Special Court against
the public servant. Sub-clause (b) of Section 20(7) provides
not less than three members of the Lokpal may direct the
competent authority to initiate the disciplinary proceedings or
any other appropriate action against the concerned public
servant. Under sub-section (8) of Section 20, the Lokpal may,
on the filing of the chargesheet, direct its Prosecution Wing or
any investigating agency (including the DSPE) to initiate
prosecution in the Special Court in respect of the cases
investigated by the agency. Under Section 23, the Lokpal has
the power, notwithstanding anything contained in Section 197
of the CrPC or the erstwhile Section 6A of the DSPE Act or
Section 19 of the Act, to grant sanction for prosecution under
clause (a) of sub-section (7) of Section 20.
81


76. Sub-section (2) of Section 23 prescribes that no
prosecution under sub-section (1) shall be initiated against
any public servant accused of any offence alleged to have
been committed by him while acting or purporting to act in
the discharge of his official duty, and no court shall take
cognizance of such offence except with the previous sanction
of the Lokpal.
77. The reason why the above provisions are set out is to
demonstrate that while drafting the amendments to the
provisions of the Act which ultimately culminated in the
Amendments of 2018, the Lokpal Act was also being drafted
and brought into force w.e.f 16.01.2014. Even the Prime
Minister is subject to a certain procedure under the Lokpal
Act. Any complaint could be made to the Lokpal and for the
rigors of Section 14 to kick in, the Lokpal may apply the
procedure under Section 20, on the same, subject to the
restrictions prescribed therein. The provision is so couched
that the Lokpal can decide not to proceed in absolutely
82


frivolous complaints and if it decides to proceed, it is vested
with an Inquiry Wing to conduct a preliminary Inquiry where
an opportunity is given to the public servant and the
competent authority.
78.
The statement of object and reasons which led to the
enactment of the Lokpal Act provide as under:-
“STATEMENT OF OBJECTS AND REASONS
The need to have a legislation for Lokpal has been felt
for the quite sometime. In its interim report on the
"Problems of Redressal of Citizens’ Grievances"
submitted in 1966, the Administrative Reforms
Commission, inter alia, recommended the setting up
of an institution of Lokpal at the Centre. To give effect
to this recommendation of the Administrative
Reforms Commission, eight Bills on Lokpal were
introduced in the Lok Sabha in the past. However,
these Bills had lapsed consequent upon the
dissolution of the respective Lok Sabha except in the
case of 1985 bill which was subsequently withdrawn
after its introduction.
2. In pursuance of the efforts to constitute a
mechanism for dealing with complaints on corruption
against public functionaries including in high places,
the Government constituted a Joint Drafting
th
Committee on 8 April, 2011 to draft a Lokpal Bill.
Divergent views emerged during deliberations in the
JDC. Government introduced a revised Bill namely
th
'Lokpal Bill, 2011’ in the Lok Sabha on 4 August, 2011.
This Bill was referred to the Department-related
83


Parliamentary Standing Committee on Personnel, Public
th
Grievances, Law and Justice on the 8 August, 2011 for
examination and report and this was followed by
th
discussions in both the Houses of Parliament on 27
August, 2011. A sense of the House was communicated to
the Standing Committee on the basis of discussions in the
Houses. The Department-related Parliamentary Standing
Committee after extensive discussion with all the
concerned Stakeholders suggested major amendments as
regards the scope and content of the Bill introduced in
August 2011. It also recommended that Lokpal at the
Centre and Lokayukta at the States be conferred
th
constitutional status in its report of 9 December, 2011.
Upon consideration of the recommendations of the
Standing Committee it was decided to withdraw the
Lokpal Bill, 2011 pending in Lok Sabha and to introduce a
thoroughly revised bill for carrying out the necessary
amendments to the Constitution for the setting up of
Lokpal and Lokayuktas as constitutional bodies.
3. India is committed to pursue the policy of
‘Zero Tolerance against Corruption'. India ratified the
United Nations Convention Against Corruption by
th
deposit of Instrument of Ratification on 9 May, 2011.
This Convention imposes a number of obligations,
some mandatory, some recommendatory and some
optional on the member States. The Convention, inter
alia, envisages that State Parties ensure measures in
the domestic law for criminalization of offences
relating to bribery and put in place an effective
mechanism for its enforcement. The obligations of the
Convention, with reference to India, have come into
th
force with effect from 8 June, 2011. As a policy of Zero
Tolerance against Corruption the Bill seeks to
establish in the country, a more effective mechanism
to receive complaints relating to allegations of
corruption against public servants including
84


Ministers, MPs, Chief Ministers, Members of
Legislative Assemblies and public servants and to
inquire into them and take follow up actions. The
bodies, namely, Lokpal and Lokayuktas which are
being set up for the purpose will be constitutional
bodies. This setting up of these bodies will further
strengthen the existing legal and institutional
mechanism thereby facilitating a more effective
implementation of some of the obligations under the
aforesaid Convention.”
79. As the statement of objects and reasons indicates, it was
enacted to give effect to the recommendations of the
Administrative Reforms Commission to provide a mechanism
for dealing with complaints of corruption against public
functionaries including in high places. The statement of
objects and reasons makes it clear that India as a nation has
committed to pursue the policy of “Zero Tolerance against
Corruption.” The Lokpal and Lokayuktas have been set up to
further strengthen the existing legal and institutional
mechanism for effective implementation of the United
Conventions against Corruption.
80. It will be useful to recall that even the Law Commission in
th
its 254 Report wanted to vest the power of prior approval in
85


the Lokpal. This aspect has been discussed hereinabove.
However, when the matter went to the Select Committee in
order to give effect to the wishes of the State Government and
on some assumed notion that it will be contrary to Article 311
the said clause was given up and Section 17A was enacted in
the present form. The Rajya Sabha Select Committee had
recorded that several stakeholders had opined that Article
311 of the Constitution would be violated if the Lokpal or
Lokayukta is mandated with the task of screening the
information prior to the grant of approval under Section 17A.
One is at a loss to understand how Article 311 would be
violated. The Lokpal Act as well as the State Acts permit the
authorities concerned in those statutes to inquire into the
conduct of public servant. Further, the interpretation that is
placed in this judgment is only to vest the screening
mechanism with the Lokpal/Lokayukta to bring the provision
in line with the holding of the decision of the Constitution
Bench in Subramanian Swamy (supra). Article 311 deals with
86


dismissal/removal or reduction in rank. Hence the reference
to Article 311 in this scenario is totally incorrect.
81. The only way the validity of the provision can be sustained
from a challenge under Article 14 and the consequent negation
of rule of law, is to have the examination of the information which
the appropriate government receives under Section 17A to be
forwarded to the Lokpal. The Lokpal/Lokayukta may if it finds
recommend for reasons to be
the information frivolous,
recorded in writing that the government reject the approval.
If the Lokpal finds that the complaint calls for an inquiry it may
order an inquiry by the Inquiry Wing. It may have the inquiry
conducted under Chapter III and where it finds that there
is no prima facie case, it can make the appropriate
recommendations. On the contrary, if it finds a prima facie case
it may forward the same to the Government which Government
will be obliged to follow the recommendation and proceed to
grant the approval. Thereafter, the investigating agency may
follow the appropriate procedure laid down in the appropriate
manual and regulate their investigation. This mechanism will
87


also take care of the serious concern to the threat to rule of law
envisaged in Vineet Narain (supra) and Subramanian Swamy
(supra), by vesting the decision to grant approval or not in the
government without any inquiry by an independent agency.
82. Similar mechanism is available in the different Lokayukta
Acts of the States and with regard to approval sought in the
case of persons employed in connection with the affairs of the
State. Reference will be made by the authority to whom
approval is sought to the State Lokpal.
83. A question may arise as to how in this mechanism the
officials covered by Section 17A(c) would be governed.
Section 17A(c) reads as under: -
“In the case of any other person, of the authority
competent to remove him from his office, at the time when
the offence was alleged to have been committed.”

84. The jurisdiction of Lokpal under the Central Act as
prescribed under Section 14 applies also to:-
a) Group ‘A’ or Group ‘B’ officer or equivalent or above,
who has served or is serving, in connection with the affairs of
the Union.
88


b) Group ‘C’ or Group ‘D’ official or equivalent, from
amongst the public servants who have served or have been
serving in connection with the affairs of the Union.
c) Any person who is or has been a chairperson or member
or officer or employee in any body or Board or corporation or
authority or company or society or trust or autonomous body
(by whatever name called) established by an Act of
Parliament or wholly or partly financed by the Central
Government or controlled by it.
d) Any person who is or has been a director, manager,
secretary or other officer of every other society or association
of persons or trust, by whatever name called, wholly or partly
financed by the Government and the annual income of which
exceeds such amount as the Central Government may, by
notification, specify;
e) Any person who is or has been a director, manager,
secretary or other officer or every other society or association
of persons or trust in receipt of any donation from any foreign
source under the Foreign Contribution (Regulation) Act, 2010
89


in excess of ten lakh rupees in a year or such higher amount
as the Central Government may, by notification, specify.
85. These officials will be subject to the jurisdiction of Lokpal
and any Section 17A information can easily be referred to the
Lokpal and the grant or refusal of approval under Section 17A
would depend on the recommendation of the Lokpal.
86. It is reiterated that, as prescribed in Section 20, the
Lokpal may in case where it decides to proceed further, may
order a) preliminary inquiry by its Inquiry Wing or any
agency (including the DSPE) to ascertain whether exists a
prima facie case for proceeding in the matter; or b)
investigation by any agency (including the DSPE) when there
exists a prima facie case.
87. The proviso empowers the Lokpal by a general or special
order, refer the complaints or a category of complaints or a
complaint received by it in respect of a public servants
belonging to Group A or Group B or Group C or Group D to
the Central Vigilance Commission constituted under sub-
90


Section (1) of Section 3 of the Central Vigilance Act, 2003. The
second proviso further provides that the Central Vigilance
Commission in respect of complaints referred to it under the
first proviso, after making preliminary inquiry in respect of
public servants belonging to Group A and Group B, shall
submit its report to the Lokpal and in case of public servants
belonging to Group C and Group D, the Commission shall
proceed in accordance with the provisions of the Central
Vigilance Act, 2003.
88. Section 8A of the CVC Act, 2003 deals with action on
preliminary inquiry in relation to public servants insofar as
Group C and Group D officials are concerned. Section 8A is
set out hereinbelow:-
“8A. Action on preliminary inquiry in relation to
public servants.- (1) Where, after the conclusion of the
preliminary inquiry relating to corruption of public
servants belonging to Group C and Group D officials of
the Central Government, the findings of the Commission
disclose, after giving an opportunity of being heard to the
public servant, a prima facie violation of conduct rules
relating to corruption under the Prevention of Corruption
Act, 1988 (49 of 1988) by such public servant, the
Commission shall proceed with one or more of the
following actions, namely:-

91


(a) cause an investigation by any agency or the Delhi
Special Police Establishment, as the case may be;

(b) initiation of the disciplinary proceedings or any other
appropriate action against the concerned public servant
by the competent authority;

(c) closure of the proceedings against the public servant
and to proceed against the complainant under section 46
of the Lokpal and Lokayuktas Act, 2013 (1 of 2014).

(2) Every preliminary inquiry referred to in sub-section
(1) shall ordinarily be completed within a period of ninety
days and for reasons to be recorded in writing, within a
further period of ninety days from the date of receipt of
the complaint.”


Both the provisos in Section 20 apply only when there exists
general or special order under the said Section of the Lokpal
Act. This will not be relevant when information is forwarded
by the Government to the Lokpal in the scenario that is being
contemplated here.
89. For the purpose of Section 17A all that Vineet Narain
(supra) and the Constitution Bench in Subramanian Swamy
(supra) have mandated is the need for an independent
examination to uphold the rule of law. Information under
Section 17A when being forwarded to the Lokpal may be
inquired into by the Inquiry Wing or any agency as the Lokpal
92


may deem appropriate. Based on the report submitted to the
Lokpal, the Lokpal may make a recommendation to the
government which recommendation will be binding on the
government for the grant or refusal of approval under Section
17A for all public servants Question of involvement of CVC
does not arise here.
90. Similarly, the State Lokpal Acts are designed broadly on
the same pattern as the Central Lokpal and Lokayuktas Act,
2013. To illustrate, under the Maharashtra Lokayukta and Upa-
Lokayuktas Act, 1971, which is currently in force, the “public
servant” is defined as under:-
“(k) "public servant" denotes a person falling under any
of the descriptions hereinafter following, namely:

(i) every Minister referred to in Clause (h);

(ii) every officer referred to in Clause (i);

(iii) (a) every President, Vice-President and Councillor of
a Zilla Parishad, Chairman, Deputy Chairman and
Member of a Panchyat Samiti, and Chairman of the
Standing or any Subjects Committee, constituted under
the Maharashtra Zilla Parishads and Panchyat Samitis Act,
1961 (Mah. V of 1962);

(b) every President, Vice-President and Councillor of a
Municipal Council, and Chairman of the Standing or any
Subjects Committee, constituted or deemed to be
93


constituted under the "Maharashtra Municipal Councils,
Nagar Panchyats and Industrial Townships Act, 1965
(Mah. XL of 1965);
(c) every Mayor, Deputy Mayor and Councillor of all
Municipal Corporations and Chairman of Standing or any
Subject Committee, constituted under the Mumbai
Municipal Corporation Act (Bom. III of 1888), the City of
Nagpur Corporation Act, 1948 (C. P. and Berar II of 1950)
and the Bombay Provincial Municipal Corporations Act,
1949 (Bom. LIX of 1949);

(iv) every person in the service or pay of,-

(a) any local authority in the State of Maharashtra, which
is notified by the State Government in this behalf in the
Official Gazette,

(b) any corporation (not being local authority)
established by or under a State of Provincial Act and
owned or controlled by the State Government,

(c) any Government company within the meaning of
section 617 of the Companies Act, 1956 (1 of 1956), in
which not less than fifty-one per cent. of the paid up share
capital is held by the State Government, or any company
which is a subsidiary of a company in which not less than
fifty-one per cent. of the paid up share capital is held by
the State Government,

(d) any society registered under the Societies
Registration Act, 1860 (21 of 1860), which is subject to the
control of the State Government and which is notified by
that Government in this behalf in the Official Gazette,”

91. Section 7 deals with matters which may be investigated
by the Lokayukta or Upa-Lokayuta, which reads as under:-
“ 7. Matters which may be investigated by Lokayukta
or Upa-Lokayukta. (1) Subject to the provisions of this
94


Act, the Lokayukta may investigate any action which is
taken by, or with the general or specific approval of,

(i) a Minister or a Secretary, or

(ii) any public servant referred to in sub-clause (iii) of
clause (k) of section 2; or

(iii) any other public servant being a public servant of a
class or sub-class of public servants notified by the State
Government in consultation with the Lokayukta in this
behalf,

in any case where a complaint involving a grievance or an
allegation is made in respect of such action or such action
can be or could have been, in the opinion of the
Lokayukta, the subject of a grievance or an allegation.

(2) Subject to the provisions of this Act, an Upa-Lokayukta
may investigate any action which is taken by, or with the
general or specific approval of, any public servant not
being a Minister, Secretary or other public servant
referred to in sub-section (1) in any case where a
complaint involving a grievance or an allegation is made
in respect of such action or such action can be or could
have been, in the opinion of the Upa-Lokayukta, the
subject of a grievance or an allegation.

(3) Notwithstanding anything contained in sub-section (2),
the Lokayukta may, for reasons to be recorded in writing,
investigate any action which may be investigated by an
Upa-Lokayukta under that sub-section whether or not a
complaint has been made to the Lokayukta in respect of
such action.

(4) Where two or more Upa-Lokayuktas are appointed
under this Act, the Lokayukta may, by general or special
order, assign to each of them matters which may be
investigated by them under this Act:

Provided that, no investigation made by an Upa-
Lokayukta under this Act and no action taken or thing
95


done by him in respect of such investigation shall be open
to question on the ground only that such investigation
relates to a matter which is not assigned to him by such
order.”

Apart from a Minister or a Secretary, any action which is taken
by or with the general or specific approval of, a public servant
referred to in Section 2(k)(iii), as extracted above, and any
other public servant being a public servant of a class or sub-
class of public servants notified by the State Government in
consultation with the Lokayukta in his behalf, are all within the
ken of the Lokayukta.
92. Section 10 deals with procedure for investigation and
authorizes the Lokayukta or Upa-Lokayukta to carry a
preliminary enquiry.
Section 10 reads as under:-
“ 10. Procedure in respect of investigations. (i) Where
the Lokayukta or an Upa-Lokayukta proposes (after
making such preliminary inquiry, as he deems fit) to
conduct any investigation under this Act, he-

(a) shall forward a copy of the complaint or, the case of
any investigation which he proposes to conduct on his
own motion, a statement setting out the grounds
therefore, to the public servant concerned and the
competent authority concerned;

96


(b) shall afford to the public servant concerned an
opportunity to offer his comments on such complaint or
statement; and

(c) may make such orders as to the safe custody of
documents relevant to the investigation, as he deems fit.

(2) Every such investigation shall be conducted in private
and in particular, the identity of the complainant and of the
public servant affected by the investigation shall not be
disclosed to the public or the press whether before,
during or after the investigation:


Provided that, the Lokayukta or an Upa-Lokayukta may
conduct any investigation relating to a matter of definite
public importance in public, if he, for reasons to be
recorded in writing, thinks fit to do so.

(3) Save as aforesaid the procedure for conducting any
such investigation shall be such as the Lokayukta or, as the
case may be, the Upa-Lokayukta considers appropriate in
the circumstances of the case.

(4) The Lokayukta or an Upa-Lokayukta may, in his
discretion, refuse to investigate or ceases to investigate
any complaint involving a grievance or an allegation if in
his opinion,-

(a) the complaint is frivolous or vexatious, or is not made
in good faith;

(b) there are no sufficient grounds for investigating or, as
the case may be, for continuing the investigation; or

(c) other remedies are available to the complainant and in
the circumstances of the case it would be more proper for
the complainant to avail of such remedies.

(5) In any case where the Lokayukta or Upa-Lokayukta
decides not to entertain a complaint or to discontinue any
investigation in respect of a complaint, he shall record his
97


reasons therefore and communicate the same to the
complainant and the public servant concerned.

(6) The conduct of an investigation under this Act in
respect of any action shall not affect such action, or any
power or duty of any public servant to take further action
with respect to any matter subject to the investigation.”


Similar provisions exist in other States.
93. In view of these provisions, insofar as public servants
employed with the affairs of the Central Government and
those public servants who are employed in bodies controlled
by the Central Government, the Lokpal will conduct the
inquiry. With regard to employees with the affairs of the State
Government and with the agencies controlled by the State
Government, the State Lokayukta will make an inquiry and
forward the recommendation to the appropriate
government/authority competent to remove.
94. If while forwarding the information received under
Section 17A for screening and obtaining of recommendation
any issue arises as to whether the concerned Lokpal will be
Central Lokpal or the State Lokpal the issue will be resolved
by applying the following test:-
98


With regard to the concerned public servant covered
under Section 17, whether the Central Lokpal or the State
Lokayukta would be the jurisdictional Lokpal/Lokayukta
for receiving a complaint directly in case a complaint
were to be made to the Lokpal directly?
Applying this test, the issue would be resolved and the
information for approval received under Section 17A would
be forwarded by the authorities concerned in Section 17A to
the concerned Lokpal. For example, in the case of a public
servant covered under Section 17A(c) if the authority
competent to remove receives an information with a request
for grant of approval, the authority competent to remove
would apply the test set out hereinabove and forward the
information to the concerned Lokpal/Lokayukta accordingly.
BODIES NOT COVERED UNDER THE JURISDICTION OF
LOKPAL: -
95. Insofar as the judiciary is concerned, already
Veeraswami (supra) and U.P. Judicial Officers’ Association
(supra) have provided a mechanism. Section 17A(c) could
99


also be attracted in cases where the body/organization/public
servant is not covered within the jurisdiction of Lokpal. For
such associations/bodies/public servants, when a scenario
presents itself the authority competent to remove the public
servant in question, would before grant or refusal of approval,
commission any appropriate independent investigative
agency to screen the information received and act in
accordance with the recommendation of the said independent
investigative agency.
96. This is the appropriate course to adopt for the reason that
if the complainants were to proceed with the complaint to the
Lokpal directly, there will be no choice but to follow the
procedure under the Lokpal Act. That is the procedure the
highest executives of the government at the Centre and of the
States are being subjected to. Why cannot the public servants
engaged in the affairs of the Union or the State or those
covered under Section 17A be subjected to the same
rigour? Merely for the reason that the information is not
100


lodged as a complaint in the Lokpal should a different
procedure be adopted. There is no good reason to hold so. By
this mechanism, what is being followed is the procedure laid
down by Parliament and the State Legislature by setting up of
an independent machinery. No prejudice will be caused to
honest public servants also. Section 17A can be retained in its
same form except that the procedure, as set out hereinabove,
will have to be followed. A constitutional court faced with a
challenge to the validity of the statute can always interpret a
provision in the manner so as to save its validity and to
harmonize it in such a manner that the provision does not fall
foul of the provisions of the constitution or of any earlier
binding judgments of the court.
TEST OF READING DOWN
97. In considering the validity of a statute, to save a statute
from being rendered unconstitutional, the Court can apply the
101


test of reading down. In B.R. Enterprises vs. State of U.P. and
16
Others , this Court held as under:-
“81…. Thus, where there are two possible interpretations,
one invalidating the law and the other upholding, the
latter should be adopted. For this, the courts have been
endeavouring, sometimes to give restrictive or expansive
meaning keeping in view the nature of legislation, maybe
beneficial, penal or fiscal etc. Cumulatively it is to
subserve the object of the legislation. Old golden rule is
of respecting the wisdom of legislature that they are
aware of the law and would never have intended for an
invalid legislation. This also keeps courts within their
track and checks individual zeal of going wayward. Yet in
spite of this, if the impugned legislation cannot be saved
the courts shall not hesitate to strike it down. Similarly, for
upholding any provision, if it could be saved by reading
it down, it should be done, unless plain words are so clear
to be in defiance of the Constitution. These
interpretations spring out because of concern of the
courts to salvage a legislation to achieve its objective
and not to let it fall merely because of a possible
ingenious interpretation. The words are not static but
dynamic. This infuses fertility in the field of
interpretation. This equally helps to save an Act but
also the cause of attack on the Act. Here the courts
have to play a cautious role of weeding out the wild
from the crop, of course, without infringing the
Constitution. For doing this, the courts have taken
help from the Preamble, Objects, the scheme of the
Act, its historical background, the purpose for
enacting such a provision, the mischief, if any which
existed, which is sought to be eliminated…”

98. Further, in Subramanian Swamy (supra), dealing with
the concept of reading down, this Court mentioned as under:-

16
(1999) 9 SCC 700
102


“61. Reading down the provisions of a statute cannot be
resorted to when the meaning thereof is plain and
unambiguous and the legislative intent is clear. The
fundamental principle of the “reading down” doctrine can
be summarised as follows. Courts must read the
legislation literally in the first instance. If on such
reading and understanding the vice of
unconstitutionality is attracted, the courts must
explore whether there has been an unintended
legislative omission. If such an intendment can be
reasonably implied without undertaking what,
unmistakably, would be a legislative exercise, the Act
may be read down to save it from unconstitutionality.
The above is a fairly well-established and well-
accepted principle of interpretation which having
been reiterated by this Court time and again would
obviate the necessity of any recall of the huge number
of precedents…”

99. In the present case, the object of preventing frivolous
and vexatious complaints against honest public servants is
sub-served by Section 17A. The only aspect missing
expressly from the statute is the provision for an independent
screening mechanism. Section 17A has been enacted after the
judgments of this Court in Vineet Narain (supra) and
Subramanian Swamy (Supra). Two of the infirmities pointed
out in those judgments, namely, that an executive instruction
cannot go ultra vires to a statutory provision and that there has
to be a valid classification among public servants have been
103


taken care of in the enactment of Section 17A. Vineet Narain
(supra) and Subramanian Swamy (Supra) both emphasize the
need for an independent screening mechanism before the
grant or refusal of an approval to prosecute.
100. When Parliament enacts a law it is deemed to be
conscious of the judicial pronouncements having a bearing on
the subject-matter. Viewed in that light, one has to presume
that Section 17A does contemplate in the grant or refusal of the
previous approval of exercise of a screening by an
independent mechanism. No doubt, it has not been expressly
set out. However, the simultaneous enactment of the Lokpal
and Lokayuktas Act in the Centre and the States and the Law
Commission’s recommendation that the approval itself under
Section 17A has to vest with the Lokpal/Lokayukta do have a
bearing on the interpretation of the provision. The Lokpal Act
contemplates an Inquiry Wing, Investigation Wing and a
Prosecution Wing. In this judgment, all that has been done is
to avail the advantage of the independent Inquiry Wing for
screening the information received under Section 17A for the
104


purpose of grant or refusal of approval. If direct complaints
could be entertained by the Lokpal and those complaints
could be subjected to the procedure under the Act, there is no
reason why Section 17A information received by the
Government cannot be screened by the Inquiry Wing of the
Lokpal and why that recommendation of the Lokpal after the
screening was done ought not to be binding on the
Government. This interpretation will take care of the mischief
pointed out in Vineet Narain (supra) and Subramanian
Swamy (Supra). The SOP prevalent now is wholly
unsatisfactory and does not address the serious infirmity
pointed in Vineet Narain (supra) and Subramanian Swamy
(Supra).
101. We are a country governed by the rule of law and not by
rule of men. Executives at the highest level, including the
Prime Minister and Ministers have subjected themselves to
the jurisdiction of the Lokpal. There is no reason why, as set
out earlier, public servants against whom information is
placed for previous approval with the concerned authority in
105


Section 17A cannot be subjected to the screening mechanism
of the Lokpal/Lokayukta.
102. This interpretation will also address the discriminatory
situation that would prevail if with regard to information
received under Section 17A, Government/authority
competent to remove is the screening authority and with
regard to complaints directly addressed to the
Lokpal/Lokayukta, the Lokpal/Lokayukta becomes the
authority to proceed with after following the screening
mechanism under the Act. The Lokpal is an independent body
headed by people who have held high offices and who will
bring to bear on the discharge of their duty a great deal of
independence which the judgments in Vineet Narain (supra)
and Subramanian Swamy (Supra) exhort.
103. If Section 17A is invalidated on the ground that prior
approval should not exist at all, the immediate consequence
would be that any complaint alleging corruption in official
decision-making could straightaway result in a police inquiry
106


or investigation. This would permit immediate registration of
FIRs, commencement of investigation and resort to coercive
steps in cases involving recommendations and decisions in
discharge of duty, regardless of whether the complaint is
frivolous, motivated, or based on hindsight. Such a result
would be regressive.
104. Under Section 20 of the Lokpal Act, the Lokpal may order
a preliminary inquiry or may direct investigation. The use of
the word “may” is significant. It reflects a deliberate
legislative choice to vest the Lokpal with discretionary
gatekeeping power at the very threshold of the process. The
Lokpal does not automatically direct investigation upon
receipt of a complaint. Instead, it exercises institutional
judgment, often through a preliminary inquiry, before
deciding whether further escalation is warranted. This
demonstrates that screening is treated as an indispensable
safeguard, even when oversight is exercised by an
independent statutory body.
107


105. If Section 17A is struck down, there would be an

anomalous situation:
● Complaints routed through the Lokpal would
continue to be subject to screening and escalation
whereas,
● Complaints routed through the police would face no
screening at all.
This would create a structural imbalance, where identical
allegations involving the same category of public servants are
treated differently solely based on the fora chosen by the
complainant. Such structural imbalances would result in
parties bypassing the Lokpal Act to deny the public servant
the benefit of the screening mechanism. This would result in
undermining the Lokpal’s role as an independent gatekeeper
apart from perpetuating a dichotomy in procedure.
106. The Prevention of Corruption Act and the Lokpal Act
operate in the same normative field. Both address allegations
of corruption against public servants, both recognize the need
for screening, and both seek to balance accountability with
protection against misuse. My Sister B.V. Nagarathna, J., has
108


raised a hypothetical question as to what if the Lokpal Act of
2013 is repealed. If that were the line of enquiry, then one may
as well ask the question – What if the Prevention of Corruption
Act, 1988 itself is repealed? The constitutional validity of
Section 17A has to be judged in the context of the existing
legal regime and not on such hypothetical considerations.
107. Section 17A is textually neutral. It applies to any “public
servant” in relation to a decision or recommendation taken in
the discharge of official functions. The provision does not
classify public servants by rank, level, or seniority. Protection
under Section 17A depends not on who the public servant is,
but on what the public servant did.
108. The assumption that lower-level officers merely perform
clerical tasks and do not make recommendations is factually
incorrect and inconsistent with administrative practice. In
governance and administration:
109


● File notings, scrutiny reports, technical evaluations,
and compliance assessments constitute
recommendations in law;
● Numerous statutory and regulatory frameworks vest
recommendatory power in officers below senior
ranks;
The expression “recommendation” is deliberately broad and
is not confined to final policy decisions alone.
CONSTRUCTIVE APPROACH TO REMOVE
DICHOTOMY:
109. This Court in Vishundas Hundumal and Others vs. State
17
of Madhya Pradesh and Others adopting a constructive
approach to remove discrimination held as under: -
“6. Conceding that this was discrimination unconsciously
indulged into by inadvertence or oversight on the part of
a governmental agency, by this order we only propose to
rectify the same and not reject the whole scheme. Such an
approach would be destructive of a wholesome effort
towards nationalisation of bus transport which is
generally undertaken in public interest. When
discrimination is glaring the State cannot take recourse to
inadvertence in its action resulting in discrimination. The
approach is, what is the impact of State action on the
fundamental rights of citizen. In this case denial of equal
protection is complained of. And this denial of equal

17
(1981) 2 SCC 410
110


protection flows from State action and has a direct impact
on the fundamental rights of the petitioners. We,
therefore, propose to take a constructive approach by
removing the discrimination by putting the present
petitioners in the same class as those who have
enjoyed favourable treatment by inadvertence on the
part of the Regional Transport Authority.

7. Accordingly we hereby direct that the
order/conditions in permits curtailing the permits of
the petitioners prohibiting them from passing over the
overlapping portion of their route with the notified
route be quashed and declared to be of no
consequence till all the operators including those
excluded and similarly situated are similarly
treated.”


18
110. In D.S. Nakara and Others vs. Union of India, while
reading down the office memoranda and refusing to set aside
the entire liberalized pension scheme, this Court again
adopted a constructive approach and held as under:-
“58. Now if the choice of date is arbitrary, eligibility
criteria is unrelated to the object sought to be
achieved and has the pernicious tendency of dividing
an otherwise homogeneous class, the question is
whether the liberalised pension scheme must wholly
fail or that the pernicious part can be severed,
cautioning itself that this Court does not legislate but
merely interprets keeping in view the underlying
intention and the object, the impugned measure seeks
to subserve? Even though it is not possible to
oversimplify the issue, let us read the impugned
memoranda deleting the unconstitutional part.
Omitting it, the memoranda will read like this:

18
(1983) 1 SCC 305
111



“At present, pension is calculated at the rate of 1/80th
of average emoluments for each completed year of
service and is subject to a maximum of 33/80 of
average emoluments and is further restricted to a
monetary limit of Rs 1000 per month. The President is,
now, pleased to decide that with effect from March 31,
1979 the amount of pension shall be determined in
accordance with the following slabs.”
If from the impugned memoranda the event of being
in service and retiring subsequent to specified date is
severed, all pensioners would be governed by the
liberalised pension scheme. The pension will have to
be recomputed in accordance with the provisions of
the liberalised pension scheme as salaries were
required to be recomputed in accordance with the
recommendation of the Third Pay Commission but
becoming operative from the specified date. It does
therefore appear that the reading down of impugned
memoranda by severing the objectionable portion
would not render the liberalised pension scheme
vague, unenforceable or unworkable.

59. In reading down the memoranda, is this Court
legislating? Of course “not”. When we delete basis of
classification as violative of Article 14, we merely set
at naught the unconstitutional portion retaining the
constitutional portion.
60. We may now deal with the last submission of the
learned Attorney-General on this point. Said the learned
Attorney-General that principle of severability cannot be
applied to augment the class and to adopt his words
“severance always cuts down the scope, never enlarges
it”. We are not sure whether there is any principle which
inhibits the court from striking down an unconstitutional
part of a legislative action which may have the tendency
to enlarge the width and coverage of the measure.
Whenever classification is held to be impermissible
and the measure can be retained by removing the
unconstitutional portion of classification, by striking
down words of limitation, the resultant effect may be
of enlarging the class. In such a situation, the court
112


can strike down the words of limitation in an
enactment. That is what is called reading down the
measure. We know of no principle that “severance”
limits the scope of legislation and can never enlarge it. To
refer to the Jaila Singh case [(1976) 1 SCC 602 : AIR 1975
SC 1436 : 1975 Supp SCR 428] , when for the benefit of
allotment of land the artificial division between pre-1955
and post-1955 tenant was struck down by this Court, the
class of beneficiaries was enlarged and the cake in the
form of available land was a fixed quantum and its
distribution amongst the larger class would pro tanto
reduce the quantum to each beneficiary included in the
class. Similarly when this Court in Randhir Singh
case [(1982) 1 SCC 618 : 1982 SCC (L&S) 119] held that the
principle of “equal pay for equal work” may be properly
applied to cases of unequal pay based on no classification
or irrational classification it enlarged the class of
beneficiaries. Therefore, the principle of “severance” for
taking out the unconstitutional provision from an
otherwise constitutional measure has been well
recognised. It would be just and proper that the provision
in the memoranda while retaining the date for its
implementation, but providing “that in respect of
government servants who were in service on March 31,
1979 but retiring from service on or after that date” can be
legally and validly severed and must be struck down. The
date is retained without qualification as the effective date
for implementation of scheme, it being made abundantly
clear that in respect of all pensioners governed by 1972
Rules, the pension of each may be recomputed as on April
1, 1979 and future payments be made in accordance with
fresh computation under the liberalised pension scheme
as enacted in the impugned memoranda. No arrears for
the period prior to March 31, 1979 in accordance with
revised computation need be paid.”

111.
In the present case, there is no need to resort to the
principle of severance. Section 17A has to be brought in line
113


with the pronouncements in Vineet Narain (supra) and
Subramanian Swamy (Supra) so that while section remains on
the statute book it ensures that there exists a screening
mechanism by an independent agency before the grant or
refusal or approval by the government and the
recommendations of the independent agency are binding on
the government. This will ensure that the otherwise salutary
provision in preventing frivolous complaints against honest
public servants is not completely set at naught.
112. Recently, in Association of old settlers of Sikkim and
19
Others vs. Union of India and Another , while interpreting
explanation to Section 10 (26-AAA) of the Income Tax Act, it
was held as under (M.R. Shah, J.):-
“43. In view of the above and for the reasons stated
above, we are of the firm opinion that Section 10(26-AAA)
to the extent it excludes the Old Indian Settlers, who have
settled in Sikkim prior to the merger of Sikkim with India
on 26-4-1975, but whose names are not recorded as
“Sikkim Subjects”, from the definition of “Sikkimese” is
ultra vires, being arbitrary, discriminatory and violative
of Article 14 of the Constitution of India. The definition of
“Sikkimese” in Section 10(26-AAA) of the Income Tax
Act shall also include all Indians, who have
permanently settled in Sikkim prior to the merger of

19
(2023) 5 SCC 717
114


Sikkim with India on 26-4-1975 irrespective of the fact
that whether their names have been recorded in the
register maintained under the Sikkim Subjects
Regulations, 1961 or not. Therefore, it is held that the
“Sikkimese” like the petitioners, who are Old Indian
Settlers and who have settled in Sikkim prior to the
merger of Sikkim with India on 26-4-1975 shall also be
entitled to the exemption under Section 10(26-AAA) of
the Income Tax Act, 1961.”

113. In the same judgment, B.V. Nagarathna, J. in an erudite
opinion had the following to say on the explanation to Section
10 (26-AAA):-
“146. Hence, it has to be directed that till such
amendment is made to the down the Explanation to
Section 10(26-AAA) of the IT Act, 1961, all individuals
domiciled in Sikkim up to 26-4-1975 shall be entitled
to the exemption under the said provision. This
direction is being issued in exercise of powers under
Article 142 of the Constitution so as to eliminate
discrimination and disparity in respect of the
aforesaid category of Sikkimese, who subsequently
have become citizens of India w.e.f. 26-4-1975 and to
save the Explanation from being rendered
unconstitutional vis-à-vis such individuals who form a
small percentage of Sikkimese and who are also
entitled to such an exemption. Such as approach is
being adopted rather than striking down the
Explanation to Section 10(26-AAA) of the IT Act, 1961
which would have the effect of withdrawing the benefit
of exemption even from those categories of persons
who are presently eligible for the same.
147. Hence, until the amendment is made, the following
clause shall be read as a part of the Explanation to
Section 10(26-AAA) of the IT Act, 1961, possibly as sub-
clause ( iv ) thereof:
“( iv ) any other individual, whose name does not appear
in the Register of Sikkim Subjects but it is established
115


that such individual was domiciled in Sikkim on or before
26-4-1975.”
This provision would extend the benefit of exemption to
those individuals, domiciled in Sikkim on the day it
merged with India i.e. 26-4-1975.
148. In the result, the writ petitions are disposed of in the
following terms:
148.1. That the benefit of income tax exemption presently
is restricted only to those Sikkimese who fall within the
three clauses of the Explanation to Section 10(26-AAA) of
the IT Act, 1961, or those persons domiciled in Sikkim, or
are Sikkimese as covered under the 1961 Regulations.
148.2. In terms of the Sikkim (Citizenship) Order, 1975 as
amended by the Sikkim (Citizenship) Amendment Order,
1989, issued by the Government of India any person who
was a Sikkim Subject under the 1961 Regulations was to
be deemed to be a citizen of India w.e.f. 26-4-1975.
Conversely, it is held that all citizens of India, having a
domicile in Sikkim on the day it merged with India i.e. 26-
4-1975 must be covered under the Explanation in order to
avail the benefit of the exemption under Section 10(26-
AAA) of the IT Act, 1961.
148.3. The Union of India shall make an amendment to the
Explanation to Section 10(26-AAA) of the IT Act, 1961, so
as to suitably include a clause to extend the exemption
from payment of income tax to all Indian citizens
domiciled in Sikkim on or before 26-4-1975. The reason
for such a direction is to save the Explanation from
unconstitutionality and to ensure parity in the facts and
circumstances of the case.
148.4. Till such amendment is made by Parliament to the
Explanation to Section 10(26-AAA) of the IT Act, 1961, any
individual whose name does not appear in the Register of
Sikkim Subjects but it is established that such individual
was domiciled in Sikkim on or before 26-4-1975, shall be
entitled to the benefit of exemption.
148.5. This direction is being issued in exercise of powers
under Article 142 of the Constitution so as to eliminate
discrimination and disparity in respect of the aforesaid
category of Sikkimese, who subsequently have become
citizens of India w.e.f. 26-4-1975 and to save the
Explanation from being rendered unconstitutional vis-à-
116


vis such individuals who form a small percentage of
Sikkimese.
148.6. The proviso to Section 10(26-AAA), insofar as it
excludes from the exempted category, “ a Sikkimese
woman who marries a non-Sikkimese man after 1-4-
2008” is hereby struck down as being ultra vires Articles 14,
15 and 21 of the Constitution of India ”.

114. By a process of reading down and with no need to resort
to Article 142, Section 17A can be aligned, in the present case,
with Vineet Narain (supra) and Subramanian Swamy (Supra).
In view of the precedents set out hereinabove, there is enough
legal support for the course of action adopted.
ANALOGY WITH JUDICIARY – NOT TENABLE
115. One contention that the learned Solicitor General so
strongly urged was the analogy drawn with the screening
mechanism for the judiciary. The comparison is completely
unjustified. The very nature of the functioning of the judiciary
and the need for it to be completely insulated from the
executive, demands the nature of protection that Veeraswami
(Supra) envisaged. Vineet Narain (Supra) and Subramaniam
Swamy (supra) have both dealt with similar contentions
advanced and rejected the same. The learned Solicitor
117


General is right that the screening mechanisms provided are
not confined to the constitutional court judges but to the
members of the judiciary across the board. That does not
denude the reasoning in Subramanian Swamy (Supra) and
the ratio decidendi therein. Nothing more needs to be said on
this aspect of the matter.
EXISTENCE OF JUDICIAL REVIEW – NOT ADEQUATE TO
PASS THE SUBRAMANIAN SWAMY (SUPRA) TEST
116. Equally, the argument that orders granting or refusing
approval being subject to Judicial review, there is enough
check against the misuse of power by Government is not a
tenable argument. Though attractive at first blush, it does not
survive a deeper probe. The parameters for judicial review
are well known and need no reiteration. A court in judicial
review is primarily concerned not so much with the decision
itself but the decision-making process. Unless the safeguard
of a screening by Lokpal/Lokayukta is read into the validity of
the section, it cannot be sustained in view of the binding
earlier rulings of larger Benches. A court in judicial review
118


will only look at the screening done by the Government to
uphold or reject the challenge. Hence, this argument of the
learned Solicitor General, cannot be accepted.
POSTSCRIPT AND DIRECTIONS:
117. In a democracy governed by the rule of law, each organ
of the State plays a significant part. Ultimately, as was echoed
in the Constituent Assembly by late Shri Babu Rajendra Prasad
and Dr. Babasaheb Ambedkar, the functioning of the organs
will depend upon the persons who work them. Work they
must do and do it well, for if they don’t, the progress of the
nation may come to a standstill.
118. One essential component of the executive wing are the
bureaucrats and officers who engage in its operation and
keep the wheels of governance moving. It is presumed that
official acts are regularly performed and there is statutory
backing too for the same.
119. Here is a case where Parliament in all its wisdom stepped
in and engrafted a mechanism in the form of enacting Section
17A to give impetus to decision making by the administrative
119


machinery so that “policy paralysis” does not set in. The
concern was that if it were not so, fearing that carefully built
reputations could be casually tarnished, a “play it safe
syndrome” may set in and decision making will be avoided,
causing serious detriment to the progress of the nation.
120. The object of incorporating Section 17A of the Act was
certainly not to condone official acts done for improper
purposes or for extraneous considerations. The singular
object is to protect bona fide recommendations and decisions
taken by officials and bureaucrats.
121. For an honest person, personal integrity and reputation
is priceless and is valued even higher than life. As was said
in the sacred Bhagavad Gita -
“ सम्भावितस्य चाकीवतिर्िरणादवतररच्यते”
'' Sambhaavitasya cha akeerti, maranaat atirichyate ''

''For a self-respecting man, death is preferable to dishonour.”

In a similar vein, Divine Poet Tiruvalluvar said in his immortal
work Tirukkural:

120


“மயிர்நீப்பின் வாழாக் கவரிமா அன்னார்
உயிர்நீப்பர் மானம் வரின்”
“Mayirn ī ppi ṉ v āḻā k kavarim ā a ṉṉā r
Uyirn ī ppar m āṉ am vari ṉ” .


“Just as a yak, which is shorn of its wool does not survive,
A man of honour will not live if he loses it.”

[Translated by Dr. S.M. Diaz and Dr. N. Mahalingam]
With the extent of public gaze prevalent today, propelled by
social media, arrest and the consequential parading in court,
of a honest person itself causes incalculable harm to the fair
name and goodwill of the individual and the family. Even a
subsequent exoneration in the investigation cannot redeem
the permanent damage done to the integrity and reputation
of the individual. It is no answer to say that protection is
available at the stage of Section 19 when the file seeking
sanction for prosecution is processed, for by then irreversible
and immeasurable harm would have ensued.
122. If in the process of examining the validity of the said
provision (Section 17A), to avoid dichotomy in procedure and
to align it with the pronouncements of this Court, certain
121


safeguards are ensured for its implementation, that certainly
does not tantamount to “substitution” or “judicial legislation”.
123. The safeguards provided for will not only strengthen the
hands of honest officers but will also ensure that the corrupt
are brought to book. More importantly, the safeguards would
guarantee that the administrative machinery continues to
attract the best of talent for the service of the nation.

124. For the reasons stated above, the writ petition is disposed
of with the following directions:-
i) Section 17A of the Prevention of Corruption Act, 1988
inserted by virtue of Section 12 of the Prevention of
Corruption (Amendment) Act, 2018 is constitutionally
valid, subject to the condition that grant or refusal of the
approval by the competent authority mentioned therein
will depend on the recommendation of the
Lokpal/Lokayukta (in case of States) respectively in
accordance with the reasoning set out in the body of the
judgment.
122


ii) The Union of India or State Governments and the
authorities competent to remove set out in Section 17A
will, on receipt of the information under Section 17A,
immediately forward the information to the
Lokpal/Lokayukta (insofar as the States are concerned)
and the Lokpal/Lokayukta shall in accordance with the
reasoning set out in the body of the judgment may have
an inquiry on the information in accordance with the
provisions of the Lokpal/Lokayukta statutes and forward
the recommendation to the appropriate authority who
shall be bound and shall act in accordance with the
recommendation insofar as grant or refusal of permission
under Section 17A is concerned.
Bodies not covered under the jurisdiction of Lokpal: -
iii) Insofar as the judiciary is concerned, already
Veeraswami (supra) and U.P. Judicial Officers
Association (supra) have provided a mechanism.
Section 17A(c) could also be attracted in cases where the
body/organization/public servant is not covered within
123


the jurisdiction of Lokpal. For such
associations/bodies/public servants, when a scenario
presents itself the authority competent to remove the
public servant in question, would before grant or refusal
of approval, commission any appropriate independent
investigative agency to screen the information received
and act in accordance with the recommendation of the
said independent investigative agency.
iv) The time-limit stipulated in the proviso to Section 17A
shall apply and all the authorities concerned will act in
accordance with the time-limit laid out therein.
v) Needless to say, the Lokpal/Lokayukta while forwarding
their recommendation, shall set out reasons for the said
recommendation.
No order as to costs.
……….........................J.
[ K. V. VISWANATHAN ]
New Delhi;
th
13 January, 2026
124


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.1373 OF 2018
CENTRE FOR PUBLIC INTEREST LITIGATION …PETITIONER
VERSUS
UNION OF INDIA …RESPONDENT
J U D G M E N T
NAGARATHNA, J.
I N D E X
Facts: ......................................................................................................................................... 5
Section 17A of the Act : A Historical Perspective: .............................................................. 7
Submissions on behalf of the Petitioner: ............................................................................ 16
Submissions on behalf of the Respondents: ....................................................................... 23
Reply Arguments: ................................................................................................................... 32
Corruption in India: ............................................................................................................... 33
United Nations Convention Against Corruption:
............................................................... 42
Vineet Narain:
......................................................................................................................... 47
Subramanian Swamy:
........................................................................................................... 52
Analysis of Section 17A of the Act: ..................................................................................... 60
Meaning of “Government” under Section 17A of the Act: ................................................ 74
Relevant Provisions of the Constitution: ............................................................................ 78
Functioning of Government Departments: ......................................................................... 89
Institutions to Check Corruption: .......................................................................................106
Establishment of CVC, CBI and Lokpal & Lokayukta:
....................................................106
The Indian Ombudsman System: Lokpal and Lokayukta:
.............................................108
Scheme of the 2013 Act:
......................................................................................................110
The Overarching Object of the Act and Section 17A: At Odds ? ....................................120
Impermissibility of Substitution of Plain Meaning of Words in Section 17A: .............137
Summary of Conclusions: ....................................................................................................141
Post Script: .............................................................................................................................144







1


I have perused the judgment authored by my learned Brother
K.V. Viswanathan, J. I wish to author a separate opinion by
holding that Section 17A of the Prevention of Corruption Act, 1988
(hereinafter referred to as “the Act”) is contrary to the objects of the
said Act and unconstitutional and hence ought to be struck down.
The reasons for saying so may be summarily stated as under:
(i) Firstly, the question is, whether prior approval within the
meaning of Section 17A of the Act has to be given at all? The
question is not about who , within the Government or outside the
Government, should give such an approval.
In my view, no such prior approval is required to be taken for
the reasons that I have explained hereinafter.
(ii) Secondly, the larger Benches of this Court in Vineet Narain
vs. Union of India , (1998) 1 SCC 226 (“Vineet Narain”) (three-
Judge Bench) and Subramanian Swamy vs. Director, Central
Bureau of Investigation, (2014) 8 SCC 682 (“Subramanian
Swamy”) (five-Judge Bench) have struck down the Single Directive
4.7(3) as well as Section 6A of the Delhi Special Police
Establishment Act, 1946 (for short, “DSPE Act, 1946), respectively.





2


In my view, 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.
(iii) Thirdly, in my view, 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.
(iv) Fourthly, in view of the above, I do not concur with the view
taken by my learned Brother K.V. Viswanathan, J. for seeking to
substitute the expression “Government” in Section 17A of the Act
and the expression “of the authority competent to remove him from
his office” with “Lokpal” or “Lokayukta”, as the case may be, as
such substitution is impermissible by way of interpretation.
(v) Fifthly, by such an interpretation, the question as to whether
the requirement of seeking prior approval within the meaning of
Section 17A of the Act is justified has to be addressed and which I
propose to discuss hereinafter.





3


(vi) The following aspects also require consideration which makes
the provision arbitrary while considering a request for grant of
approval under Section 17A of the Act:
(a) “policy bias” on the part of the public servants of an
administrative department which could result in an absence of
neutrality or objectivity while considering a request for
approval for carrying out an enquiry, inquiry or investigation
into a complaint vis-à-vis a recommendation made or decision
taken by a public servant during the course of discharge of his
duties;
(b) that no single public servant may be responsible for making a
recommendation or taking a decision during the course of
discharge of his public duties and therefore, the difficulty in
giving approval for conducting an enquiry, inquiry or
investigation into such matter in respect of a single public
servant within the meaning of Section 17A of the Act.
(c) “conflict of interest” inasmuch as public servant entrusted with
the power to grant or refuse approval for conducting an enquiry,
inquiry or investigation under Section 17A of the Act may
himself have played a vital role in making such a




4


recommendation or taking a decision either individually or
collectively with other public servants. The rules of natural
justice require that exercise of discretion must be without bias
and not be arbitrary or unreasonable, therefore, fairness in
action without any underlying bias is a requirement while
considering a request for prior approval for conducting an
enquiry, inquiry or investigation by a police officer.
(d) grant or refusal of approval to a police officer to conduct an
enquiry, inquiry or investigation is an institutional decision
emanating within the institution i.e. the Government
department, which is arbitrary in itself.
Hence, my separate opinion.
Facts:
2. The instant writ petition has been preferred by the petitioner
– Centre for Public Interest Litigation (for short, “CPIL”), a non-
governmental organization assailing Section 17A of the Act as
being unconstitutional, invalid and void. While the writ petition
also sought to earlier challenge Section 7 of the Act, the said
challenge has since been given up.




5


2.1 Section 17A was inserted as a new provision in the Act by
way of Section 12 of the Prevention of Corruption (Amendment) Act,
2018 and came into effect from 26.07.2018. For ease of reference,
the text of the provision has been extracted hereunder:
“17A. Enquiry or Inquiry or investigation of offences
relatable to recommendations made or decision taken
by public servant in discharge of official functions or
duties .— No police officer shall conduct any enquiry or
inquiry or investigation into any offence alleged to have
been committed by a public servant under this Act, where
the alleged offence is relatable to any recommendation
made or decision taken by such public servant in
discharge of his official functions or duties, without the
previous approval—
(a) in the case of a person who is or was employed, at the
time when the offence was alleged to have been committed,
in connection with the affairs of the Union, of that
Government;
(b) in the case of a person who is or was employed, at the
time when the offence was alleged to have been committed,
in connection with the affairs of a State, of that
Government;
(c) in the case of any other person, of the authority
competent to remove him from his office, at the time when
the offence was alleged to have been committed:
Provided 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:
Provided further that the concerned authority shall convey
its decision under this section within a period of three
months, which may, for reasons to be recorded in writing




6


by such authority, be extended by a further period of one
month.”

2.2 From a perusal of the aforesaid provision, it is evident that
Section 17A functions as a mandatory pre-condition that restricts
a police officer from conducting any inquiry/enquiry/investigation
into an offence alleged to have been committed by a public servant
in relation to any recommendation made or decision taken in
discharge of their official duties without the prior approval of the
concerned authority.
Section 17A of the Act : A Historical Perspective:
3. Learned counsel for the petitioner submitted that Section 17A
of the Act is similar to Single Directive 4.7(3) as well as Section 6A
of the DSPE Act, 1946 which were struck down by this Court and
therefore, the said provision is contrary to the judgments of this
Court and hence has to be struck down. It was contended that the
provision once again attempts to protect corrupt public servants
and therefore, the mandate of granting prior approval by the
Government even for a preliminary inquiry to be made by a police
officer. If the Government declines to grant prior approval then no




7


police officer can conduct an enquiry/inquiry/investigation within
the meaning of Section 17A of the Act.
3.1 According to the submissions of learned Solicitor General, the
essence of Section 17A of the Act is the need to protect decision-
makers from harassment through frivolous complaints. Hence a
screening mechanism has been devised under the said Section in
order to filter out baseless allegations against officers/officials who
discharge their duties with integrity so as to ensure effective
governance and thereby maintain a balance between
accountability and efficiency. Allegations without any basis or
truth made against public servants can cause irreparable harm not
only to the public servants concerned but also to the system of
governance by the concerned department to which they belong.
Hence, before a public servant is charged with a misdemeanour
and a First Information Report (FIR) is lodged against a public
servant, a suitable preliminary enquiry into the allegations made
is necessary. Thus, there is a need to protect honest public
servants from frivolous and vexatious complaints while discharging
their official duties.




8


3.2 From a historical perspective, the Santhanam Committee
Report, 1964 is relevant. Shri K. Santhanam was appointed as the
Chairman of a Committee on Prevention of Corruption. Chapter 10
of the Report deals with the Special Police Establishment which
was created by the Government of India in the year 1941 by an
executive order and upon the establishment of the Central Bureau
of Investigation (for short, “CBI”) with effect from 01.04.1963, the
Special Police Establishment has been made one of its divisions
which exercises its powers under the Delhi Special Police
Establishment Act, 1946 (for short, “DSPE Act, 1946). The
aforesaid Committee, inter alia, had recommended that the request
for grant of sanction to prosecute should be dealt with
expeditiously.
3.3 In the year 1969, the Single Directive No.4.7(3), as a
consolidated set of instructions was issued to the CBI by various
ministries or departments through an executive order regarding
the modalities of initiating an enquiry prior to registering a case
against certain categories of civil servants. Directive No.4.7(3)
reads as under:





9


“4.7(3)(i) In regard to any person who is or has been a
decision making level officer (Joint Secretary or equivalent
of above in the Central government or such officers as are
or have been on deputation to a Public Sector Undertaking;
officers of the Reserve Bank of India of the level equivalent
to Joint Secretary of above in the Central Government,
Executive Directors and above of the SEBI and Chairman
& Managing Director and Executive Directors and such of
the Bank officers who are one level below the Board of
Nationalised Banks), there should be prior sanction of the
Secretary of the Ministry/Department concerned before
SPE takes up any enquiry (PE or RC), including ordering
search in respect of them. Without such sanction, no
enquiry shall be initiated by the SPE.
(ii) All cases referred to the administrative
Ministries/Departments by CBI for obtaining necessary
prior sanction as aforesaid, except those pertaining to any
officer of the rank of Secretary or Principal Secretary,
should be disposed of by them preferably within a period
of two months of the receipt of such a reference. In respect
of the officers of the rank of Secretary or Principal
Secretary to Government, such references should be made
by the Director, CBI to the Cabinet Secretary for
consideration of a Committee consisting of the Cabinet
Secretary as its Chairman and the Law Secretary and the
Secretary (Personnel) as its members. The Committee
should dispose of all such references preferably within two
months from the date of receipt of such a reference by the
Cabinet Secretary.
(iii) When there is any difference of opinion between the
Director, CBI and the Secretary of the Administrative
Ministry/Department in respect of an officer up to the rank
of Additional Secretary or equivalent, the matters shall be
referred by CBI to Secretary (Personnel) for placement
before the Committee referred to in Clause (ii) above. Such
a matter should be considered and disposed of by the
Committee preferably within two months from the date of
receipt of such a reference by Secretary (Personnel).




10


(iv) In regard to any person who is or has been Cabinet
Secretary, before SPE takes any step of the king mentioned
in (i) above the case should be submitted to the Prime
Minister for orders.”

3.4 The validity of Directive No.4.7(3) of the Single Directive was
considered by this Court and it was struck down by holding that
in the absence of any statutory requirement of prior permission or
sanction for investigation, a mere executive order could not be
imposed as a condition precedent for institution of an investigation.
This was in the case of Vineet Narain . The details of the reasoning
in the said judgment shall be dealt with later.
3.5 In the meanwhile, the Central Vigilance Commission (for
short, “CVC”) was set up by the Government of India by a
resolution dated 11.02.1964. This was on the recommendation of
the Santhanam Committee. Pursuant to the judgment of this Court
in Vineet Narain, the Commission was accorded statutory status
with effect from 25.08.1988 through the Central Vigilance
Commission Ordinance, 1988 under which Section 8(1)(c) provided
for a provision for granting of prior approval or otherwise for the
conduct of an investigation into allegations of corruption under the
Act against the persons mentioned in Section 6A of the DSPE Act,




11


1946. The amendment to the aforesaid Ordinance was first
promulgated on 27.10.1988.
3.6 Thereafter, the Central Vigilance Commission Bill, 1988 was
introduced in the Lok Sabha on 07.12.1988, which was then
referred to the Parliamentary Standing Committee on Home Affairs
and the Union Government accepted most of the amendments
recommended by the said Committee. The Lok Sabha considered
this bill and passed it on 15.03.1999 but before the Rajya Sabha
th
could consider the same, the 12 Lok Sabha was dissolved on
26.04.1999 and consequently the Bill lapsed. The Central Vigilance
Commission Bill, 1999, on the same lines as the earlier Bill, was
introduced in the Lok Sabha and was referred to the Joint
Committee of both the Houses of Parliament, namely, the Joint
Parliamentary Committee (JPC). The JPC submitted its report and
made its observations therein.
th
3.7 The 13 Lok Sabha as well as the Rajya Sabha extensively
debated on the Central Vigilance Commission Bill, 1999 and the
same was passed by both Houses of Parliament. The President gave




12


his assent on 11.09.2003 and consequently, the Central Vigilance
Commission Act, 2003 came into effect from 11.09.2003.
3.8 Thereafter, the Hota Committee on Civil Services Reforms,
2004 noted that honest civil servants face vigilance/CBI probes
under the Act in respect of bona fide commercial or policy decisions
which may incidentally benefit private parties, leading to decision-
paralysis. The said Committee recommended setting up experts’
committees in various departments to scrutinize cases of the
officers before initiating departmental action for alleged corrupt
practices/launching prosecution against them under the Act,
under the aegis of the CVC. According to this report, such a reform
would encourage honest officers to take bold commercial decisions
in public interest without any lurking fear of a vigilance/CBI
enquiry.
3.9 Subsequently, the Second Administrative Reforms
th
Commission submitted its 4 Report on “Ethics in Governance” in
2007, wherein in paragraphs 7.1 and 7.2, it was recorded as under:
“7.1 The raison d’etre of vigilance activity is not to reduce
but to enhance the level of managerial efficiency and
effectiveness in the organisation. Risk-taking should form
part of government functioning. Every loss caused to the




13


organisation, either in pecuniary or nonpecuniary terms,
need not necessarily become the subject matter of a
vigilance inquiry. One possible test for determining the
bona-fides could be whether a person of common prudence
working within the ambit of the prescribed rules,
regulations and instructions, would have taken the
decision in the prevailing circumstances in the
commercial/operational interests of the organisation.
7.2 Even more than in government, managerial decision-
making in public sector undertakings and day-to-day
commercial decisions in public sector banks offers
considerable scope for genuine mistakes being committed
which could possibly raise questions about the bona fides
of the decision-maker. The Central Vigilance Commission
has recognized this possibility of genuine commercial
decisions going wrong without any motive whatsoever
being attached to such decisions…”

Consequently, in paragraph 7.9, the recommendations read as
under:
“7.9 Recommendations:
a. Every allegation of corruption received through
complaints or from sources cultivated by the investigating
agency against a public servant must be examined in
depth at the initial stage itself before initiating any enquiry.
Every such allegation must be analyzed to assess whether
the allegation is specific, whether it is credible and whether
it is verifiable. Only when an allegation meets the
requirements of these criteria, should it be recommended
for verification, and the verification must be taken up after
obtaining approval of the competent authority. The levels
of competent authorities for authorizing verifications/
enquiries must be fixed in the anti-corruption agencies for
different levels of suspect officers.




14


b. In matters relating to allegations of corruption, open
enquiries should not be taken up straightaway on the
basis of complaints/source information. When
verification/secret enquiries are approved, it should be
ensured that secrecy of such verifications is maintained
and the verifications are done in such a manner that
neither the suspect officer nor anybody else comes to know
about it. Such secrecy is essential not only to protect the
reputation of innocent and honest officials but also to
ensure the effectiveness of an open criminal investigation.
Such secrecy of verification/enquiry will ensure that in
case the allegations are found to be incorrect, the matter
can be closed without anyone having come to know of it.
The Inquiry/Verification Officers should be in a position to
appreciate the sensitivities involved in handling allegations
of corruption.
c. The evaluation of the results of verification/enquiries
should be done in a competent and just manner. Much
injustice can occur due to faulty evaluation of the facts and
the evidence collected in support of such facts. Personnel
handling this task should not only be competent and
honest but also impartial and imbued with a sense of
justice.
xxx”
3.10 In the year 2013, an amendment to Section 6A of the DSPE
Act, 1946 was sought to be made and a Bill was introduced in that
regard. In Subramanian Swamy, this Court struck down Section
6A of the DSPE Act, 1946 by, inter alia , holding that the provision
created an impermissible classification based solely on the status
of the public servant in Government service (Joint Secretary and
above in the Union and certain Public Sector Undertakings (PSUs)




15


Executives), in the matter of initiation of an enquiry/investigation
under the provisions of the Act.
3.11 As a result, the Law Commission of India considered the
Prevention of Corruption (Amendment) Bill, 2013 along with the
th
proposed amendments in its 254 Report and gave its
recommendations thereon. The Rajya Sabha Select Committee,
2016 sought opinions from stakeholders by holding certain
consultations and thereafter made its recommendations and
suggested amendments to the proposed Section 17A of the Act. On
26.07.2018, both the Houses of Parliament after debating the same,
passed the Bill which received the assent of the President and was
brought into force from that date. In this case, the of Section
vires
17A of the Act is under challenge.
Submissions on behalf of the Petitioner:
4. Sri Prashant Bhushan, learned counsel for the petitioner at
the outset submitted that the impugned amendment to the Act in
the form of Section 17A renders the entire scheme of the said Act,
ineffective, as it protects corrupt officials and would lead to an
exponential rise of corruption in the country.




16


4.1 It was contended that the introduction of Section 17A
functions as the third attempt by the Union of India to bring in a
provision that requires prior approval for the purpose of initiating
a bare investigation, despite similar attempts having been thwarted
earlier by this Court in the case of Vineet Narain and
Subramanian Swamy. That this Court in the aforesaid two
judgments has found that provisions protecting public servants in
a manner that would prevent the investigating agencies from even
being able to collect material relating to an allegation is a form of
curtailing their power and preventing their independence of
functioning.
4.2 That in Vineet Narain, Directive 4.7(3) of the Single Directive
issued by the Union Government in the form of a consolidated set
of instructions to the CBI requiring prior sanction to initiate
investigation into certain classes of public servants, namely,
“decision-making level officers” was struck down by this Court on
the basis of the said Directive being violative of Article 14 as a form
of unreasonable classification. That the said Directive was also
struck down on the basis of creating an impermissibility governing
the power for investigation by the CBI that had been endowed by




17


way of statutory provisions enacted by Parliament, through
executive action.
4.3 It was submitted that following the striking down of the said
Directive for being unconstitutional and on the ground of executive
overreach, the Union Government once again tried to introduce a
prior approval requirement for commencement of investigations
into allegations levelled against a public servant in the form of
Section 6A of the DSPE Act, 1946 which also required prior
approval to initiate investigations into the actions of certain classes
of public servants, namely those at the level of Joint-Secretary and
above as well as officers appointed by the Central Government in
corporations, Government companies, societies and local
authorities owned or controlled by the Government. That, this
Court, in Subramanian Swamy held Section 6A of the DSPE Act,
1946 to be violative of Article 14 of the Constitution on the basis of
it making an unreasonable classification between senior officers
and junior officers in terms of the protection they would receive
from being inquired/enquired/investigated into.
4.4 It was further submitted that this Court also held in
Subramanian Swamy, that it would be impermissible for




18


investigating agencies to be prevented from being able to even
collect material with respect to a certain allegation because of the
requirement of prior approval. That this would result in the officer
in question being put to notice as to the existence of a possible
inquiry/enquiry/investigation into their actions. That only the
investigating agencies would have the requisite expertise so as to
decide, whether, to proceed with the investigation or not and,
hence, the final decision to proceed with an investigation must be
taken by the investigating agencies and not the Central
Government.
4.5 It was vehemently contended that the aforementioned two
judgments of this Court in Vineet Narain and Subramanian
Swamy were not merely decided on the question of the validity of
the classification between classes of officers but also took note of
the overarching problem of corruption in India as a source of grave
danger to our constitutional republic. That this Bench would be
bound by the decisions in Vineet Narain and Subramanian
Swamy as they were a three-Judge Bench and five-Judge
Constitution Bench decision of this Court respectively. That the
introduction of Section 17A was for the sole purpose of rendering




19


ineffective the judgments of this Court in Vineet Narain and
Subramanian Swamy . That this Court is required to interpret
anti-corruption provisions in a manner that would enhance and
not subdue their efficiency and functioning.
4.6 It was further submitted that the introduction of Section 17A
is contrary to the position of law laid down by this Court in Lalita
Kumari vs. Government of Uttar Pradesh, (2014) 2 SCC 1
(“Lalita Kumari”) , which held that registration of an F.I.R was
mandatory upon the investigating officer receiving information of
the commission of a cognizable offence.
4.7 It was contended that the effect of Section 17A would be an
interference with the confidentiality and insulated nature of the
investigations conducted by the investigating agencies, wherein
there is a high likelihood of leaks and disclosures of information
within a department of the Government, as the concerned
authority granting the approval would have to be kept abreast of
the particularities of the case.
4.8 That the requirement for prior approval to conduct an
inquiry/enquiry/investigation is in violation of Articles 6(2) and 36




20


of the United Nations Convention Against Corruption, which India
has ratified.
4.9 Further, under Section 17A of the Act, in linking the offence
committed to any recommendation made or decision taken in
discharge of official functions or duties places a burden on the
investigating agency to establish such a linkage prima facie before
being able to conduct any form of investigation, when on the other
hand, investigation itself may be required to establish such a
linkage to begin with.
4.10 It was submitted that the effect of Section 17A would be that
when the public servants sought to be investigated are themselves
of a higher level, an incongruous situation would arise where they
would be in-charge of deciding on grant of approval in relation to
their own case. That even otherwise, a high-ranking member of the
same department could not be relied upon to be sufficiently
impartial in relation to the case of a subordinate officer.
4.11 That it is erroneous to suggest that Section 17A has been
introduced in compliance with the recommendation made by the
th
254 Law Commission report, which had recommended the




21


inclusion of a provision regarding grant of prior approval for
inquiry/enquiry/investigation into alleged offences committed by a
public servant with the approval required to be granted by the
concerned Lokpal/Lokayukta and not by the Union/State
Government. That if the goal was to protect honest officers from
frivolous investigations, two safeguards in the form of Sections 17
and 19 of the Act already exist. That under Section 17, only certain,
high-ranking police officers can investigate the actions of a public
servant and under Section 19, prior sanction of the concerned
authority would be required before taking cognizance in a matter
involving allegations of corruption leveled against a public servant.
That the conduct of a preliminary enquiry/inquiry/investigation on
its own could not be claimed to cause prejudice or impede the
functioning of a public servant.
4.12 It was further submitted that in the affidavit dated
07.05.2025 filed by the Union of India, which only contained data
with respect to requests made by the CBI seeking grant of prior
approval to commence inquiry/enquiry/investigation into
allegations made against a public servant, such approval was
denied in a worrying 41.3% of cases.




22


4.13 Hence, it was contended by learned counsel for the
petitioner that for all of the aforesaid reasons, it would be
necessary to strike down Section 17A as being violative of Articles
14 and 21 of the Constitution.
Submissions on behalf of the Respondents:
5. Per contra, learned Solicitor General of India Sri Tushar
Mehta, vehemently opposed the aforesaid submissions and
defended the vires of Section 17A.
5.1 At the outset, it was submitted that Section 17A of the Act
is a salutary provision, containing sufficient in-built safeguards
and modes to address grievances. That the provision was
introduced with the goal of preventing harassment of honest public
servants by subjecting even bona fide recommendations made or
decisions taken by them to the process of investigation.
5.2 That the animating impetus from the time of the Single
Directive, 1969 to Section 6A of the DSPE Act, 1946 and now to
Section 17A has been to ensure that every decision taken or
recommendation made by a public servant, merely by virtue of
someone being disgruntled with the same or seeking to settle other




23


scores, is not frivolously challenged. That such frivolous challenges
do not merely waste the time of the concerned public servant and
cause them prejudice and harassment but further have a larger
disadvantageous effect on the ability of government departments
to function, as public servants would refrain from acting entirely
so as to involve being dragged into an investigation. That this would
contribute to “policy paralysis” and decision-making being shuffled
from one officer to the other as nobody would wish to take
responsibility for any decision of the department of the Government.
5.3 That pursuant to the Law Commission making its
th
recommendation in its 254 Report, the Rajya Sabha Select
Committee conducted extensive stakeholders’ consultations and
further engaged in an in-depth debate and held discussions before
enacting Section 17A in its current form. That this is reflective of
the deliberate and intentional framing of the provision in its
current form as many of the concerns raised by the petitioner were
raised in these debates and have been sufficiently addressed.
5.4 It was further contended that material differences exist
between Section 6A of the DSPE Act, 1946 and Section 17A of the
Act and the fact of the former having been struck down as being




24


unconstitutional does not have a bearing on the vires of the latter
provision. That Section 6A of the DSPE Act, 1946 concerned the
requirement of prior approval of the Central Government for the
commencement of investigations by the CBI alone, protected only
those Central Government officers who were at the rank of Joint
Secretary and above and equivalent officers in certain Public Sector
Undertakings (PSUs), had only a narrow exception where approval
would not be required in trap cases and did not prescribe any
timelines. That Section 17A, on the contrary, applies to the
commencement of investigation by any agency, be it the CBI or the
State police, protects all public servants and not any particular
class, is narrowly tailored to cover only offences relating to any
recommendation made or decision taken and prescribes a timeline
of three months, with a possible one additional month of extension
within which the concerned authority is required to either grant or
deny approval.
5.5 It was submitted that Section 17A of the Act is not contrary
to the precedents set by this Court either in the case of Vineet
Narain or in the case of Subramanian Swamy . That, in Vineet
Narain , the striking down of parts of the Single Directive was not




25


on the basis of any general impermissibility of a prior approval
regime but instead hinged on the fact that a classification was
being made between ranks of officers, leading to different regimes
of investigation being applicable to different classes of officers. That
such a classification did not have any rational nexus to the object
of preventing frivolous allegations and harassment of public
servants and was thus held to be violative of Article 14. Further,
that the Single Directive functioned as a consolidated set of
instructions issued to the CBI as to how it should go about
prosecuting cases of corruption. That the Executive doing such an
act through a directive as opposed to the Parliament through the
enactment of statutory provisions was further held to be
impermissible. Similarly, in Subramanian Swamy , the main
issue was as regards the classification made between officers
holding the rank of Joint Secretary and above and all other officers
and not the existence of a system of prior approval for conducting
an investigation into alleged acts of corruption by a public servant
itself.
5.6 It was submitted that as Section 17A of the Act does not
engage in any such classificatory exercise and it is a validly enacted




26


statutory provision, it cannot be said to be a different avatar of
either the Single Directive or Section 6A of the DSPE Act, 1946.
Hence, there is no contravention of the principles laid down in
either Vineet Narain or Subramanian Swamy in enacting
Section 17A of the said Act.
5.7 It was contended that there is no merit to the claim that
under Section 17A, there would be a situation where an officer
accused of an offence under the Act would himself be in charge of
granting approval to conduct an investigation in his own case. That
a clear chain of command exists that would determine who the
competent authority is in each case to grant the said approval.
5.8 It was submitted that some form of pre-investigation scrutiny
has been upheld by this Court as being valid on various occasions
and it is not anathema to the rule of law.
5.9 It was also submitted that in the case of K Veeraswami vs.
Union of India, (1991) 3 SCC 655 (“Veeraswami”) , this Court
recognized the purpose of prior sanction required to take
cognizance of an offence under Section 6 of the Prevention of
Corruption Act, 1947 as being for the purpose of preventing




27


“frivolous and vexatious prosecution”. That the said case also
upheld the duty of the competent authority to accord such sanction
when the material on record discloses a prima facie commission of
an offence.
5.10 That the vires of Section 197 of the Code of Criminal
Procedure, 1898 (corresponding to Section 197 of the Code of
Criminal Procedure, 1973), which mandates prior sanction to take
cognizance of offences committed by public servants while acting
in discharge of their official duty was upheld by this Court in the
case of Matajog Dobey vs. H.C. Bhari, (1955) 2 SCC 388 on
similar grounds as Veeraswami , namely that a classification
between public servants and ordinary citizens was justified on the
basis of the need for public servants to be protected against
frivolous complaints and harassment as they attempt to carry out
their duties.
5.11 It was submitted that a consideration of the aforesaid dicta
of this Court would reveal that this Court has endorsed the need
for a prior sanction regime so as to prevent vexation and
harassment being caused to the public servant. That Section 17A
is merely one other form of such a protective measure.




28


5.12 It was further contended by learned Solicitor General that
the protection accorded under Section 17A is very narrowly tailored
as prior approval would only be required if the offence alleged to
have been committed satisfied the requirements that - a) it was in
discharge of official duties and b) it related to any recommendation
made or decision taken. Any offence under the Act that is alleged
to have been committed by a public servant that can neither be
said to be in discharge of his official duties nor relates to a
recommendation made or decision taken would not require any
form of prior approval. That this is exemplified by the fact that on
the spot arrests do not require any prior approval to be proceeded
with.
5.13 It was submitted that in a catena of High Court decisions in
which the applicability of and adherence to Section 17A was in
issue, the High Courts have abided by the aforementioned narrow
scope of application of the provision. That no corrupt public
servant has thus been shielded by the provision.
5.14 It was further contended by learned Solicitor General that
Section 17A in no way violates the law laid down by this Court in
Lalita Kumari as even in the said decision, the Court recognized




29


that there may exist instances where some form of prior
investigation to determine if any offence is made out at all, based
on the facts and circumstances of the case would be necessary
before the registration of an FIR.
5.15 That the existence of Section 17A does not, in any way,
impede the functioning of the Lokpal as Section 56 of the Lokpal
and Lokayuktas Act, 2013 (for short, “the 2013 Act”) clearly states
that the 2013 Act would have an overriding effect over any other
enactment. That if an investigation or the registration of an F.I.R
was ordered by the Lokpal, there would be no scope for Section 17A
to apply.
5.16 It was then submitted that the nature of review before the
grant or denial of approval under Section 17A of the Act is not
intended to be vetting or particularly detailed. That as the
competent authority would likely not have much material before it,
all that would have to be examined is a prima facie evaluation of
whether an offence under the Act is, in fact, made out at all. That,
as also observed by the Karnataka High Court in Shree Roopa vs.
State of Karnataka, 2023 SCC OnLine Kar 68 (“Shree Roopa”) ,
all that is required is sufficient material to justify the need for an




30


investigation, which is drastically different from the nature of
evaluation and material produced to determine if sanction should
be awarded to take cognizance of an offence. That this further
limits the possibility of abuse.
5.17 That the potential for abuse is also mitigated by way of the
formulation of a detailed Standard Operating Procedure (SOP) that
ought to be complied with. Therefore, there is no merit to the claim
that there is no guidance in existence as to how the concerned
authority must decide as to, whether, to grant or not grant approval
under Section 17A.
5.18 It was further submitted that various Directive Principles of
State Policy enshrined in the Constitution recognize the need for
fearless governance as a mandate. That Section 17A merely assists
in ensuring that officers do not shirk their responsibilities, thus
ensuring that the government machinery is continually operational
and serving the people of the country.
5.19 It was urged that the writ petition may be dismissed as
being without any merits.





31


Reply Arguments:
6. By way of reply, learned counsel for the petitioner, Sri
Prashant Bhushan contended that the fact that Section 17A was
enacted after extensive research and deliberation by Parliament
cannot supersede the fact that it is in violation of a three-Judge
and five-Judge Bench decision of this Court. That the requirement
for a sufficiently specialized body to decide as to whether a case
must be investigated into or not was recognized in both Vineet
Narain and Subramanian Swamy , and Section 17A directly
derogates this requirement by placing the decision-making in the
hands of an unspecialized competent authority.
6.1 That the distinction between Section 6A of the DSPE Act,
1946 and Section 17A of the Act is immaterial as what was
recognized in Subramanian Swamy was how a prior approval
regime to even conduct any form of preliminary inquiry strikes at
the heart of the rule of law and was entirely arbitrary. That when
this Court in Subramanian Swamy did not find the reasoning
that high-level officers were uniquely in need of protection to be
convincing, despite the likely consequence of the decisions that
they make needing them to be able to work unobstructedly, it is




32


not logically consistent to argue that a provision such as Section
17A which grants such a protection to all public servants would
pass muster.
6.2 It was finally submitted that one possible way in which the
independence of the investigating agency could be preserved while
allowing for a regime of prior approval is by having the investigating
officer conduct the preliminary enquiry and then submit a report
on the same to either the jurisdictional Court or Magistrate or the
Lokpal, to proceed with registration of an F.I.R.
Corruption in India:
7. The controversy in this case surrounds the interpretation of
Section 17A of the Act, which is meant to prevent corruption in
administration and governance of the country through the Union
and State Governments and their instrumentalities. This Court
has on a multitude of occasions taken note of the existence and
persistence of corruption in the country and the manner in which
it can be tackled by also bearing in mind other concomitant and
competing considerations such as procedural fairness, the
potential for abuse of anti-corruption provisions of law and the




33


requirement of a well-functioning and largely unimpeded system of
public administration.
7.1 In the case of Sheonandan Paswan vs. State of Bihar
(1987) 1 SCC 288 (“Sheonandan Paswan”), E.S. Venkataramiah,
J. (as the learned Chief Justice of India then was) in the majority
opinion, deciding on the correctness of an order of the Magistrate
Court allowing for the withdrawal of prosecution in a case relating
to allegations of corruption, noted the need to balance probity in
public life by convicting corrupt public servants on one hand with
a measured approach that ensures only genuine cases lead to a
conviction on the other, by observing that:
“37. … Corruption, particularly at high places should be
put down with a heavy hand. But our passion to do so
should not overtake reason. The court always acts on the
material before it and if it finds that the material is not
sufficient to connect the accused with the crime, it has to
discharge or acquit him, as the case may be,
notwithstanding the fact that the crime complained of is a
grave one. …”

7.2 In the case of State of Haryana vs. Bhajan Lal, 1992
Supp 1 SCC 335 (“Bhajan Lal”), which laid down the now-
familiar seven-prong indicative test as to when the powers under
Article 226 of the Constitution or Section 482 of the Code of




34


Criminal Procedure, 1973 (“CrPC”) could be exercised to quash a
criminal proceeding, Ratnavel Pandian, J. rightly observed that:
“4. Everyone whether individually or collectively is
unquestionably under the supremacy of the law. Whoever
he may be, however high he is, he is under the law. No
matter how powerful he is, or how rich he may be.
xxx
9. Mere rhetorical preaching of apostolic sermons listing
out the evils of corruption and raising slogans with catch
words are of no use in the absence of practical and effective
steps to eradicate them; because evil tolerated is evil
propagated.

10. At the same time, one should also be alive to cases
where false and frivolous accusations of corruption are
maliciously made against an adversary exposing him to
social ridicule and obloquy with an ulterior motive of
wreaking vengeance due to past animosity or personal
pique or merely out of spite regardless of the fact whether
the proceedings will ultimately culminate into conviction
or not.

7.3 In Vineet Narain, this Court held that:
“56. The adverse impact of lack of probity in public life
leading to a high degree of corruption is manifold. It also
has adverse effect on foreign investment and funding from
the International Monetary Fund and the World Bank who
have warned that future aid to under-developed countries
may be subject to the requisite steps being taken to
eradicate corruption, which prevents international aid
from reaching those for whom it is meant. Increasing
corruption has led to investigative journalism which is of
value to a free society. The need to highlight corruption in
public life through the medium of public interest litigation
invoking judicial review may be frequent in India but is not




35


unknown in other countries: R v Secretary of State for
Foreign and Commonwealth Affairs .

57. Of course, the necessity of desirable procedures
evolved by court rules to ensure that such a litigation is
properly conducted and confined only to mattes of public
interest is obvious. This is the effort made in these
proceedings for the enforcement of fundamental rights
guaranteed in the Constitution in exercise of powers
conferred on this Court for doing complete justice in a
cause. It cannot be doubted that there is a serious human
rights aspect involved in such a proceeding because the
prevailing corruption in public life, if permitted to continue
unchecked, has ultimately the deleterious effect of eroding
the Indian polity.”
(underlining by me)

7.4 In the case of J. Jayalalitha vs. Union of India, (1999) 5
SCC 138 (“Jayalalitha”), Nanavati, J. when discussing the
purpose behind the enactment of the Act held as under:
“15. Corruption corrodes the moral fabric of the society
and corruption by public servants not only leads to
corrosion of the moral fabric of the society but is also
harmful to the national economy and national interest, as
the persons occupying high posts in the Government by
misusing their power due to corruption can cause
considerable damage to the national economy, national
interest and image of the country.”

7.5 Further, Sethi, J. in State of M.P vs. Ram Singh, (2000) 5
SCC 88 (“Ram Singh”), observed as under:
“8. Corruption in a civilised society is a disease like
cancer, which if not detected in time is sure to maliganise
the polity of country leading to disastrous consequences.




36


It is termed as a plague which is not only contagious but if
not controlled spreads like a fire in a jungle. Its virus is
compared with HIV leading to AIDS, being incurable. It has
also been termed as royal thievery. The socio-political
system exposed to such a dreaded communicable disease
is likely to crumble under its own weight. Corruption is
opposed to democracy and social order, being not only
anti-people, but aimed and targeted against them. It
affects the economy and destroys the cultural heritage.
Unless nipped in the bud at the earliest, it is likely to cause
turbulence shaking of the socio-economic-political system
in an otherwise healthy, wealthy, effective and vibrating
society.”

7.6 In the case of K.C. Sareen vs. CBI, (2001) 6 SCC 584 , this
Court speaking through K.T Thomas, J. remarked on the
possibility of a public servant who has been convicted of corruption
continuing to hold office during the pendency of an appeal against
the conviction, by stating that:

37

7.7 In the case of State of M.P. vs. Shambhu Dayal Nagar,
(2006) 8 SCC 693 (“Shambhu Dayal Nagar”) , Dalveer Bhandari,
J. noted that:
“32. It is difficult to accept the prayer of the respondent
that a lenient view be taken in this case. The corruption by
public servants has become a gigantic problem. It has
spread everywhere. No facet of public activity has been left
unaffected by the stink of corruption. It has deep and




38


pervasive impact on the functioning of the entire country.
Large scale corruption retards the national building
activities and everyone has to suffer on that count. As has
been aptly observed in Swatantar Singh v. State of
Haryana , corruption is corroding like cancerous lymph
nodes, the vital veins of the body politics, social fabric of
efficiency in the public service and demoralizing the honest
officers. The efficiency in public service would improve only
when the public servant devotes his sincere attention and
does the duty diligently, truthfully, honestly and devotes
himself assiduously to the performance of the duties of his
post. The reputation of corrupt would gather thick and
unchaseable clouds around the conduct of the officer and
gain notoriety much faster than the smoke.”

7.8 This Court, speaking through Dr. B.S. Chauhan, J. in State
of Maharashtra vs. Balakrishna Dattatrya Kumbhar, (2012)
12 SCC 384 (“Kumbhar”), wherein the suspension of the
conviction of the respondent therein for offences under the Act was
challenged, observed that:
“17. The aforesaid order is therefore, certainly not
sustainable in law if examined in light of the
aforementioned judgments of this Court. Corruption is not
only a punishable offence but also undermines human
rights, indirectly violating them, and systematic corruption,
is a human rights’ violation in itself, as it leads to
systematic economic crimes. Thus, In the aforesaid
backdrop, the High Court should not have passed the said
order of suspension of sentence in a case involving
corruption. …”





39


7.9 In Manohar Lal Sharma vs. Principal Secretary, (2014)
2 SCC 532 (“Manohar Lal Sharma”), Lodha, J. (as the learned
Chief Justice then was) observed that:
“34. The abuse of public office for private gain has grown
in scope and scale and hit the nation badly. Corruption
reduces revenue; it slows down economic activity and
holds back economic growth. The biggest loss that may
occur to the nation due to corruption is loss of confidence
in the democracy and weakening of rule of law.
35 In recent times, there has been concern over the need
to ensure that the corridors of power remain untainted by
corruption or nepotism and that there is optimum
utilization of resources and funds for their intended
purposes.
36. In 350 B.C.E., Aristotle suggested in the “Politics” that
to protect the treasury from being defrauded, let all money
be issued openly in front of the whole city, and let copies
of the accounts be deposited in various wards. What
Aristotle said centuries back may not be practicable today
but for successful working of the democracy it is essential
that public revenues are not defrauded and public
servants do not indulge in bribery and corruption and if
they do, the allegations of corruption are inquired into
fairly, properly and promptly and those who are guilty are
.”
brought to book

7.10 Further, in Subramanian Swamy , R.M Lodha, C.J. held
that:
“72. Corruption is an enemy of nation and tracking down
a corrupt public servant, however high he may be, and
punishing such person is a necessary mandate under the
PC Act, 1988. The status or position of public servant does




40


not qualify such public servant from exemption from equal
treatment. The decision-making power does not segregate
corrupt officers into two classes as they are common
crimedoers and have to be tracked down by the same
process of inquiry and investigation.”

7.11 The irresistible conclusion that can be drawn from a survey
of the aforementioned dicta is the unequivocal assertion by this
Court that corruption is a scourge that must be rooted out in its
entirety. Corruption is anathema to rule of law and to the spirit of
the Constitution and to good governance. There is a fundamental
incongruence between the existence of corruption in the country
and the transformative vision of our Constitution, the rights it
protects and the Preambular values it espouses. The existence and
persistence of corruption in the country functions as a dire threat
to the country’s democracy, potential for development, economic
stability and the very fabric of mutual trust and cooperation that
keeps our polity functioning. It is trite to acknowledge that even a
single act of corruption may have a deleterious and cascading
impact on a multitude of stakeholders and certainly, on every
single citizen whose faith in the Government and its institutions
comes to be whittled away and who could be consequently deprived
of good governance in accordance with rule of law. Corruption




41


facilitates the widening of existing schisms of inequality in the
country, in its ability to impact the delivery of critical services to
those who are most vulnerable and deserving. It further
contributes to the breeding of cultures of complacency, inefficiency
and lethargy and the ever-looming shadow of even the sincerest
and most well-intentioned efforts being belied by institutional
corruption, especially amongst the higher-rungs of decision-
making in an institution. It is indubitable that corruption must be
smitten out, and no form of clemency may be shown to those who
indulge in corruption, regardless of its perceived magnitude.
However, this Court has also amply cautioned against an approach
driven by zeal alone, in a manner that doesn’t consider the
substance of the allegations in question.
United Nations Convention Against Corruption:
8. Learned counsel for the petitioner submitted that Section 17A
is violative of Articles 6(2) and 36 of the United Nations Convention
Against Corruption (for short, “UNCAC”). That, the UNCAC is an
international instrument that seeks to combat corruption through
the adoption of strategies and measures that seek to prevent,
punish and mitigate negative consequences arising out of




42


corruption, especially through bolstered international cooperation
and appropriate measures for financial recovery. It specifies what
forms of activities must be criminalized and common best practices
that may be followed to increase transparency and institutional
integrity. The UNCAC was adopted by the United Nations General
Assembly in the year 2003 and entered into force in the year 2005.
8.1 In May 2011, India ratified the UNCAC thereby indicating a
steadfast, global commitment to combating corruption. For ease
of reference, the aforesaid Articles are extracted hereunder:
“Article 6: Preventive anti-corruption body or bodies:
xxx
1. Each State Party shall, in accordance with the
fundamental principles of its legal system, ensure the
existence of a body or bodies, as appropriate, that prevent
corruption by such means as:
(a) Implementing the policies referred to in article 5 of
this Convention and, where appropriate,
overseeing and coordinating the implementation of
those policies;
(b) Increasing and disseminating knowledge about
the prevention of corruption.
2. Each State Party shall grant the body or bodies referred
1
to in paragraph 1 of this article the necessary
independence, in accordance with the fundamental
principles of its legal system, to enable the body or bodies

1
Body or bodies tasked with implementing anti-corruption policies and spreading awareness
about corruption.




43


to carry out its or their functions effectively and free from
any undue influence. The necessary material resources
and specialised staff, as well as the training that such staff
may require to carry out their functions, should be
provided.
xxx
Article 36: Specialized authorities:
Each State Party shall, in accordance with the
fundamental principles of its legal system, ensure the
existence of a body or bodies or persons specialized in
combating corruption through law enforcement. Such
body or bodies or persons shall be granted the necessary
independence, in accordance with the fundamental
principles of the legal system of the State Party, to be able
to carry out their functions effectively and without any
undue influence. Such persons or staff of such body or
bodies should have the appropriate training and resources
to carry out their tasks.”

8.2 It was submitted by learned counsel for the petitioner that
the requirement to seek prior approval of the concerned
government before the commencement of an inquiry/enquiry/
investigation, as the case may be, into an offence alleged to have
been committed by a public servant is violative of the requirement
under Article 6(2) that bodies tasked with preventing corruption
are sufficiently independent. That it further violates the
requirement for specialists in the field of combating corruption to
function independently in deciding whether to conduct any
inquiry/enquiry/investigation into the actions of any public




44


servant, as the approval-granting authority is the concerned
government, usually in the form of the department to which the
public servant belongs to and not a specialised, independent body.
8.3 It was further submitted that as a consequence of this lack of
independence and specialisation, this Court ought to interpret
Section 17A in such a manner that would render it in conformity
with India’s international obligations under the UNCAC.
8.4 Learned counsel for the petitioner placed reliance on the
judgments of this Court in Gramophone Company of India vs.
Birendra Bahadur Pandey, (1984) 2 SCC 534 (“Gramophone
Company of India”), Vishaka vs. State of Rajasthan, (1997) 6
SCC 241 (“Vishaka”), Nilabati Behera vs. State of Orissa,
(1993) 2 SCC 746 (“Nilabati Behera”), People’s Union for Civil
Liberties vs. Union of India, (1997) 3 SCC 433 (“People’s Union
for Civil Liberties”) and Justice K.S. Puttaswamy (Retd.) vs.
Union of India, (2017) 10 SCC 1 (“K.S. Puttaswamy”).
8.5 There are three courses of action that an Indian Court may
take as regards an international legal obligation. In the event of a
lacuna in the municipal law, international legal obligations may be




45


used to “paper over the cracks”, so to speak, in the form of using
them as the basis to issue guidelines or directions until Parliament
enacts a suitable legislation. In the event of a direct conflict
between the international legal obligation and municipal law, the
municipal law would prevail. However, in instances where there is
no direct contradiction between the municipal law and the
international legal obligation, the provisions of municipal law
should be interpreted by the Court in such a manner that ensures
compliance with the international legal obligation particularly in
the case of Constitutional provisions.
8.6 In the instant case, the existence of a requirement for prior
approval to commence an inquiry/enquiry/investigation into the
alleged offences committed by a public servant under Section 17A
belies the requirement for corruption to be investigated into by an
independent agency, free of any form of undue influence and
equipped with the necessary specialisation and resources. It is the
duty of this Court to examine whether the existence of such a
provision is justified in light of our domestic and international
commitments to combating corruption. This aspect of the matter
calls for consideration.




46


9. Further, the contention of the learned counsel for the
petitioner is regarding the transgression of the dicta of this Court
in enacting Section 17A of the Act. Hence, it is necessary to discuss
those two judgments cited at the Bar in Vineet Narain and
Subramanian Swamy before proceeding to answer the
contentions raised by the respective parties.
Vineet Narain:
9.1 In Vineet Narain , the allegation in the writ petition filed
under Article 32 of the Constitution of India as a Public Interest
Litigation was that Government Agencies, such as the CBI and the
Revenue Authorities had failed to perform their duties and legal
obligations inasmuch as they had failed to properly investigate the
matters arising out of the seizure of the so called “Jain Diaries” in
certain raids conducted by the CBI. In the above context, the
Single Directive issued by the Government which required prior
sanction of the designated authority to initiate an investigation
against officers of the Government, Public Sector Undertakings
(PSUs) and Nationalised Banks above a certain level was
considered. The Single Directive was a consolidated set of
instructions issued to the CBI by various ministries or departments.




47


It was first issued in the year 1969 and thereafter amended on
several occasions. The Single Directive contained certain directions
to the CBI regarding the modalities of initiating an enquiry for
registering a case against certain categories of civil servants. The
Directive in its application was limited to officials at decision-
making levels of the Government and certain other public
institutions like the RBI, SEBI, Nationalised Banks etc. and the
scope was limited to official acts. The object of the Directive was
to protect decision making level officers from threat and ignominy
of malicious and vexatious enquiries/ investigations. It was stated
that the protection of the officers was required to save them from
harassment for taking honest decisions; and that in the absence of
such a protection it would adversely affect their efficiency and
efficacy, leading to them avoiding taking any decisions which could
later lead to harassment by any malicious and vexatious enquiry
or investigation. The Directive was not to extend to any non-official
acts of the Government servants and a time frame was provided for
grant of sanction in order to avoid any delay. Two questions arose
with regard to Directive No.4.7 (3) of the Single Directive), namely,
its propriety or legality and the extent of its coverage, if it be valid.




48


9.2 In the meanwhile, a Committee called “Independent Review
Committee” (IRC) was constituted by the Union Government which
in its report had accepted the legality of the Single Directive by
placing reliance on the decision of this Court in Veeraswami . It
had made certain recommendations after considering the functions
of the CBI and the Directorate of Enforcement (ED) with regard to
measures, inter alia, for speedy investigations and trials.
9.3 Considering the report of the IRC, this Court felt the need
for its intervention in the matter in order to examine whether the
Single Directive was valid in law. Taking into consideration
Sections 3 and 4 of the DSPE Act, 1946, this Court observed that
the Single Directive cannot include within its ambit cases of
possession of disproportionate assets by the offender. The question
with regard to the cases other than those of bribery, including trap
cases and possession of disproportionate assets being covered by
the Single Directive was considered. In paragraph 46, it was
observed:
“46. There may be other cases where the accusation
cannot be supported by direct evidence and is a matter of
inference of corrupt motive for the decision, with nothing
to prove directly any illegal gain to the decision-maker.
Those are cases in which the inference drawn is that the




49


decision must have been made for a corrupt motive
because the decision could not have been reached
otherwise by an officer at that level in the hierarchy. This
is, therefore, an area where the opinion of persons with
requisite expertise in decision-making of that kind is
relevant and, may be even decisive in reaching the
conclusion whether the allegation requires any
investigation to be made. In view of the fact that the CBI or
the police force does not have the expertise within its fold
for the formation of the requisite opinion in such cases, the
need for the inclusion of such a mechanism comprising of
experts in the field as a part of the infrastructure of the CBI
is obvious, to decide whether the accusation made
discloses grounds for a reasonable suspicion of the
commission of an offence and it requires investigation. In
the absence of any such mechanism within the
infrastructure of the CBI, comprising of experts in the field
who can evaluate the material for the decision to be made,
introduction therein of a body of experts having expertise
of the kind of business which requires the decision to be
made, can be appreciated. But then, the final opinion is to
be of the CBI with the aid of that advice and not that of
anyone else. It would be more appropriate to have such a
body within the infrastructure of the CBI itself.”
(underlining by me)

9.4 Consequently, it was held that the Single Directive would
not be upheld on the ground of it being an impermissible exercise
of power of superintendence of the Central Government under
Section 4(1) of the Act. The matter came to be considered de hors
the Single Directive and consequently, certain directions were
issued by this Court keeping in mind the salutary principles of




50


public life and standards in public life. Directions were issued on
the following aspects:
a) CBI and CVC, the latter to be given a statutory
status;
b) Enforcement Directorate;
c) Nodal Agency; and
d) Prosecution Agency

9.5 Directive No.4.7(3) of the Single Directive was struck down.
However, the Report of the IRC and its recommendations that were
similar to the extent of the directions issued by this Court were to
be read along with the directions issued for a better appreciation
of the matter. Consequently, the writ petitions were disposed of.
9.6 As noted above, the Single Directive was quashed by this
Court in Vineet Narain by judgment dated 18.12.1997. Within a
few months thereafter, on 25.08.1998, Section 6A was sought to
be inserted to the DSPE Act, 1946 providing for previous approval
of the CVC before investigation of the officers of the level of Joint
Secretary and above. But this provision was deleted by issuance
of another Ordinance on 27.10.1998. Thus, from the date of the
decision in Vineet Narain till the insertion of Section 6A with effect
from 12.09.2003, there was no requirement of seeking previous




51


approval except for a period of two months from 25.08.1998 to
27.10.1998.
Subramanian Swamy:
9.7 Section 6A of the DSPE Act, 1946 reads as under:
“ 6A. Approval of Central Government to conduct
inquiry or investigation .—(1) The Delhi Special Police
Establishment shall not conduct any inquiry or
investigation into any offence alleged to have been
committed under the Prevention of Corruption Act, 1988
(49 of 1988) except with the previous approval of the
Central Government where such allegation relates to—
(a) the employees of the Central Government of the level
of Joint Secretary and above; and
(b) such officers as are appointed by the Central
Government in corporations established by or under
any Central Act, Government companies, societies and
local authorities owned or controlled by that
Government.
(2) Notwithstanding anything contained in sub-section (1),
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 gratification other than legal
remuneration referred to in clause (c) of the Explanation to
Section 7 of the Prevention of Corruption Act, 1988 (49 of
1988).”

9.8 A five-Judge Constitution Bench of this Court in
Subramanian Swamy considered the validity of Section 6A of the
DSPE Act, 1946 in a writ petition which was filed by Sri Swamy




52


under Article 32 of the Constitution. The validity of Section 6A was
questioned on the touchstone of Article 14 of the Constitution.
9.9 It was contended that Section 6A of the DSPE Act, 1946 was
wholly irrational and arbitrary as it protected highly placed public
servants from enquiry or investigation into allegations of
corruption and was hence liable to be struck down for being
violative of Article 14 of the Constitution of India. In paragraph 6,
this Court noted the moot question to be considered in the case in
the following words:

9.10 After referring extensively to the judgment of this Court in
Vineet Narain , the background to the introduction of Section 6A
of the DSPE Act, 1946 was considered in light of the Central
Vigilance Commission Act, 2003 (Act 45 of 2003). Section 26 of Act
45 of 2003 provided for the amendment of the DSPE Act, 1946 and
clause (c) stated that after Section 6, Section 6A shall be inserted
in the DSPE Act, 1946. Section 6A(1) of the Act required approval




53


of the Central Government to conduct enquiry or investigation
where there were allegations of commission of an offence under the
Act relating to an employee of the Central Government of the level
of Joint Secretary and above.
9.11 The above writ petition challenging the said provision
initially came up for admission before a three-Judge Bench and
thereafter the matter was listed before the Constitution Bench of
five-Judges. After considering the arguments made at the bar at
length, this Court took note of the fact that Section 6A came to be
enacted after the decision of this Court in Vineet Narain which
was concerned with the constitutional validity of Single Directive
No.4.7(3) and discussed several portions of the judgment in Vineet
Narain which had declared Single Directive 4.7(3)(i) to be invalid.
In paragraph 56 of Subramanian Swamy, this Court noted that
Section 6A replicates Single Directive 4.7(3)(i) which was struck
down in Vineet Narain . It was further observed that “ the only
change is that the executive instruction is replaced by the
legislation ” . Now, insofar as the vice that was pointed out by this
Court that powers of investigation which are governed by the
statutory provisions under the DSPE Act, 1946 cannot be estopped




54


or curtailed by any executive instruction issued under Section 4(1)
of that Act is concerned, it had been remedied.
9.12 But the question remained, whether Section 6A met the
touchstone of Article 14 of the Constitution? This Court considered
the question whether a classification can be made by creating a
class of officers of the level of Joint Secretary and above, and
certain officials in the Public Sector Undertakings for the purpose
of enquiry/investigation into an offence alleged to have been
committed under the Act. Whether sub-classification can be made
on the basis of status and position of a public servant for the
purpose of inquiry or enquiry or investigation into allegations of
graft which amounts to an offence under the Act. This Court
adopted an approach of taking into consideration the legislative
policy relating to prevention of corruption enacted in the Act and
the powers of enquiry/investigation under the DSPE Act, 1946.
While discussing the nature of the classification in paragraph 59,
this Court held that under Section 6A of the DSPE Act, 1946, the
classification was on the basis of status in Government services
which was not permissible under Article 14 of the Constitution, as
it defeated the purpose of finding prima facie truth into the




55


allegations of graft which amounted to an offence under the Act.
This Court questioned whether there could be sound differentiation
between the corrupt public servants on the basis of status and held
that there can be no distinction made between the public servants
against whom there are allegations made amounting to an offence
under the Act.
9.13 This Court observed that the classification sought to be
made under Section 6A was not based on sound differentia
inasmuch as the bureaucrats of Joint Secretary level and above
who are working with the Central Government are offered
protection under Section 6A while the same level officers who are
working in the States do not get protection though both classes of
these officers are accused of an offence under the Act and an
enquiry/investigation into such allegations is to be carried out.
9.14 It was observed by this Court that the provision of Section
6A impedes tracking down the corrupt senior bureaucrats as
without previous approval of the Central Government, the CBI
would not even hold a preliminary enquiry much less an enquiry
into the allegations and therefore the discrimination cannot be




56


justified on the ground that there is a reasonable classification or
that it has a rational nexus to the objects sought to be achieved.
9.15 Discussing the provisions of the Act and the wide
ramification that corruption in the governance has on the polity
and people of the country, reference was made to another judgment
of this Court in Manohar Lal Sharma where the question of the
constitutional validity of Section 6A of the DSPE Act, 1946 was left
open. It was also noticed that in Manohar Lal Sharma, the
learned Attorney General had made a concession to the effect that
in the event of the CBI conducting an enquiry, as opposed to an
investigation into the conduct of a senior Government officer, no
previous approval of the Central Government is required since the
enquiry does not have the same adverse connotation that an
investigation has. Insofar as an investigation is concerned, the
Court observed that it may have some adverse impact but where
the allegations of an offence are under the Act against a public
servant, whether high or low, whether decision-maker or not, an
independent investigation into such allegation is of utmost
importance and unearthing the truth is the goal.




57


9.16 Ultimately, in paragraphs 98 and 99, this Court observed as
under:
“98. Having considered the impugned provision contained
in Section 6-A and for the reasons indicated above, we do
not think that it is necessary to consider the other
objections challenging the impugned provision in the
context of Article 14.
99. In view of our foregoing discussion, we hold that
Section 6-A(1), which requires approval of the Central
Government to conduct any inquiry or investigation into
any offence alleged to have been committed under the PC
Act, 1988 where such allegation relates to: (a) the
employees of the Central Government of the level of Joint
Secretary and above, and (b) such officers as are appointed
by the Central Government in corporations established by
or under any Central Act, government companies, societies
and local authorities owned or controlled by the
Government, is invalid and violative of Article 14 of the
Constitution. As a necessary corollary, the provision
contained in Section 26(c) of Act 45 of 2003 to that extent
is also declared invalid.”


9.17 What is of significance in the judgment of this Court in
Subramanian Swamy is what has been observed in paragraphs
61 and 62 which are extracted for ease of reference, as under:
“61. The essence of police investigation is skilful inquiry
and collection of material and evidence in a manner by
which the potential culpable individuals are not
forewarned. The previous approval from the Government
necessarily required under Section 6-A would result in
indirectly putting to notice the officers to be investigated
before the commencement of investigation. Moreover, if
CBI is not even allowed to verify complaints by preliminary
enquiry, how can the case move forward? A preliminary




58

(underlining by me)

9.18 It is noted that Single Directive 4.7(3)(i) was struck down
by this Court in Vineet Narain while issuing certain directions in
paragraph 58 of the said judgment in the context of (i) CBI and
CVC, (ii) Enforcement Directorate, (iii) Nodal Agency, and (iv)
Prosecution Agency. In Subramanian Swamy, a Constitution
Bench of this Court struck down Section 6A(1) of DSPE Act, 1946
as the basis of the classification of the public servants under the




59


said Section was held to be violative of Article 14 of the Constitution
and hence discriminatory without going into other contentions
raised. Consequently, Section 26(c) of the Act 45 of 2003 (CVC Act)
was held to be invalid to that extent. It is thereafter that Section
17A has been inserted to the Act.
Analysis of Section 17A of the Act:
10. The approach that this Court must have while resolving the
controversy in the instant case, can be envisaged through the
following observations of Ganguly, J. in the case of Subramanian
Swamy vs. Manmohan Singh, (2012) 3 SCC 64 which are
extracted as under:
“68. Today, corruption in our country not only poses a grave
danger to the concept of constitutional governance, it also
threatens the very foundation of the Indian democracy and
the Rule of Law. The magnitude of corruption in our public
life is incompatible with the concept of a socialist secular
democratic republic. It cannot be disputed that where
corruption begins all rights end. Corruption devalues
human rights, chokes development and undermines justice,
liberty, equality, fraternity which are the core values in our
Preambular vision. Therefore, the duty of the court is that
any anti-corruption law has to be interpreted and worked
out in such a fashion as to strengthen the fight against
corruption. That is to say in a situation where two
constructions are eminently reasonable, the court has to
accept the one that seeks to eradicate corruption to the one
which seeks to perpetuate it.”
(underlining by me)




60



11. The Prevention of Corruption Act, 1947 was amended in the
year 1964 based on the recommendations of the Santhanam
Committee. However, it was felt that the same was inadequate to
deal with the offence of corruption effectively. In order to make the
anti-corruption law more effective by widening its coverage and
strengthening the provisions, the Prevention of Corruption Bill was
introduced and both Houses of Parliament passed the Bill which
received the assent of the President on 09.09.1988 and came into
force on the said date itself.
11.1 The Act is a special statute and its Preamble shows that it
has been enacted to consolidate and amend the law relating to the
prevention of corruption and for the matters connected therewith.
It is intended to make the corruption laws more effective by
widening their coverage and by strengthening the provisions. It
came to be enacted because the Prevention of Corruption Act, 1947
as amended from time to time was inadequate to deal with the
offences of corruption effectively. The new Act now seeks to provide
for speedy trial of offences punishable under the Act in public
interest as the legislature had become aware of corruption amongst




61


the public servants. The Act enacts the legislative policy to meet
corruption cases with a very strong hand. All public servants are
warned through such a legislative measure that corrupt public
servants have to face very serious consequences. [ State of
A.P. vs. V. Vasudeva Rao, (2004) 9 SCC 319 : 2004 SCC (Cri)
968 ].
11.2 The offences that can be committed by any public servant
as defined under Section 2(c) of the said Act are enumerated in
Chapter III thereof. The same can be listed as under:
“Section 7 – Offence relating to public servant being
bribed (Substituted by Act 16 of 2018, Section 4 with
effect from 26.7.2018) – Section 7, before substitution
dealt with “Public Servant taking gratification other than
legal remuneration in respect of an official act”.

Section 8 – Offence relating to bribing of a public
servant (Substituted by Act 16 of 2018, Section 4 with
effect from 26.7.2018) - Section 8, before substitution
dealt with “Taking gratification, in order, by corrupt or
illegal means to influence public servant”.

Section 9 – Offence relating to bribing a public servant
by a commercial organization (Substituted by Act 16
of 2018, Section 4 with effect from 26.7.2018) - Section
9, before substitution dealt with “Taking gratification, for
exercise of personal influence with public servant”.

Section 10 – Person incharge of commercial
organization to be guilty of offence (Substituted by Act
16 of 2018, Section 4 with effect from 26.7.2018) -




62


Section 10, before substitution dealt with “Punishment for
abetment by public servant of offences defined in Sections
8 or 9”.

Section 11 – Public servant taking undue advantage
without consideration from the person concerned in
proceeding or business transacted by such public
servant.

Section 12 – Punishment for abetment of offences. -
(Substituted by Act 16 of 2018, Section 4 with effect
from 26.7.2018) - Section 12, before substitution dealt
with “Punishment for abetment of offences defined in
Sections 7 or 11”.

Section 13 – Criminal misconduct by a public servant
(Substituted by Act 16 of 2018, Section 7 with effect
from 26.7.2018)

Section 14 – Punishment for habitual offender
(Substituted by Act 16 of 2018, Section 8 with effect
from 26.7.2018) - Section 14 before substitution dealt
with “habitual committing of offences under Sections 8, 9
and 12”.

Section 15 – Punishment for attempt

Section 16 – Matters to be taken into consideration for
fixing fine.”

11.3 Chapter IV of the Act deals with investigation into cases
under the said Act. Section 17 speaks of persons authorised to
investigate. It begins with a non-obstante clause inasmuch as the
said provision states that notwithstanding anything contained in




63


the Code of Criminal Procedure, 1973, no police officer below the
rank, -
(a) in the case of the Delhi Special Police Establishment, of an
Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and
Ahmedabad and in any other metropolitan area notified as
such under sub-section (1) of Section 8 of the Code of Criminal
Procedure, 1973 (2 of 1974), of an Assistant Commissioner of
Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police
officer of equivalent rank,
shall investigate any offence punishable under the Act without
the order of a Metropolitan Magistrate or a Magistrate of the
first class, as the case may be, or make any arrest therefor
without a warrant.
11.4 However, the first proviso states that if a police officer not
below the rank of Inspector of Police is authorised by the State
Government in this behalf by general or special order, he may also
investigate any such offence without the order of a Metropolitan
Magistrate or a Magistrate of the first class, as the case may be, or




64


make arrest therefor without a warrant. The second proviso states
that an offence referred to in clause (b) of sub-section (1) of Section
13 shall not be investigated without the order of a police officer not
below the rank of Superintendent of Police.
11.5 Section 17 of the Act is in the nature of a safeguard in the
matter of investigation to be conducted against a public servant,
by requiring that the same be conducted by an authorized police
officer, namely, Inspector of Police, Assistant Commissioner of
Police or Deputy Superintendent of Police or a police officer of
equivalent rank, as the case may be.
11.6 Section 17A was added pursuant to an amendment made
by Act 16 of 2018 by virtue of Section 12 thereof. The said Section
was enforced with effect from 26.07.2018. Section 17A deals with
enquiry or inquiry or investigation of offences relatable to a
recommendation made or a decision taken by a public servant in
discharge of official functions or duties. This Section speaks about
previous approval being a condition precedent before a police
officer can conduct an enquiry or inquiry or investigation into any
offence alleged to have been committed by a public servant under
the Act, where the alleged offence is relatable to any




65


recommendation made or decision taken by such public servant in
discharge of his official functions or duties. This Section apparently
operates in a narrow compass inasmuch as the prior approval is
sought only with regard to any enquiry or inquiry or investigation
to be carried out:
(i) into any offence alleged to be committed by a public
servant under the Act,
(ii) when the alleged offence is relatable to any
recommendation made or decision taken by a public
servant; and
(iii) when the recommendation or decision taken is in
discharge of the public servant’s functions or duties.
The previous approval has to be given –
(i) in the case of a person who is or was employed, at the time
when the offence was alleged to have been committed, in
connection with the affairs of the Union, by that
Government;
(ii) in the case of a person who is or was employed, at the time
when the offence was alleged to have been committed, in




66


connection with the affairs of a State, by that Government;
and
(iii) in the case of any other person, by the authority competent
to remove him from his office, at the time when the offence
was alleged to have been committed.
Thus, the Union or State Government under which the public
servant is or was working at the relevant point of time has to grant
the previous approval within the meaning of clauses (i) and (ii) of
Section 17A of the Act.
11.7 The first proviso to Section 17A of the Act states 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.
These relate to cases called “trap cases”. The second proviso to
Section 17A states that the concerned authority shall convey its
decision under this Section within a period of three months, which
may, for reasons to be recorded in writing by such authority, be
extended by a further period of one month.




67


12. Recalling the contentions advanced at the Bar, the sum and
substance of the arguments of Sri Prashant Bhushan, learned
counsel for the petitioner was that the mandate of previous
approval by the Government envisaged under Section 17A of the
Act is only a method to frustrate any enquiry or investigation to be
made by a police officer into the offences committed by a public
servant under the Act and secondly, to protect corrupt public
servants so as to not expose them to any investigation.
12.1 It was contended by Sri Bhushan that corruption is so
rampant and widespread in the governance of this country that by
the insertion of Section 17A to the Act and through the mechanism
of previous approval to be taken before an enquiry or investigation
can be made against a public servant by a police officer, there
would virtually be no enquiry or inquiry or investigation at all
inasmuch as the Government would inevitably refuse approval for
conducting any such enquiry or investigation. Consequently,
Section 17A is contrary to the sacrosanct and salient objectives of
the Act itself inasmuch as the said Act seeks to prevent corruption
and to deal with cases of corruption with a strong hand and not to
protect corrupt public servants by the mechanism of declining




68


grant of approval to an enquiry or inquiry or investigation by a
police officer.
12.2 It was further contended that Section 17A runs contrary to
the salient dicta of this Court in the case of Vineet Narain as well
as Subramanian Swamy, which are of larger Benches and
therefore this Bench is bound by the observations made in the
aforesaid two cases. He contended that unless Section 17A is
struck down, the scourge of corruption would be on the rise in the
country and there would be no good governance.
12.3 It was therefore emphasised that taking note of the strong
observations made by this Court in the aforesaid matters speaking
respectively through J.S. Verma, C.J. and Lodha, C.J., Section 17A
may be struck down. It was emphasised by Sri Bhushan that
Section 17A is nothing but another form of Section 6A of the DSPE
Act, 1946 which has already been struck down by this Court and
therefore, Section 17A also ought to be struck down.
12.4 In response to the aforesaid contentions, learned Solicitor
General submitted the following points of distinction between
Section 6A of the DSPE Act, 1946, which was struck down and




69


Section 17A of the Act which is under challenge in the present case.
For the sake of convenience, paragraphs 6 and 7 of the written
arguments submitted on behalf of the Union of India are extracted
as under:
“6. At this juncture, it is necessary to note the
difference between Section 6A and Section 17A. The table
is as under:

70

7. The following are the important points of
distinctions:
a. Section 6A [Delhi Special Establishment Act, 1946
(“DSPE Act”)] required prior Central Government
approval only for the CBI to even begin
inquiry/investigation;
Section 17A (PC Act) instead requires prior
approval for enquiry/inquiry/investigation by any
police officer – CBI or State police.
This makes it agency neutral.
b. Section 6A protected only the Central Government
officers of Joint Secretary rank and above and
equivalents in Central PSUs;




71


Section 17A of the PC Act instead protects all public
servants without any arbitrary status-based
classification.
This makes it status neutral.
c. Section 6A only had a narrow trap-case exception;
Section 17A is a narrow protection and a wide
exclusionary clause ensuring that only offence
relatable to a recommendation/decision taken in the
discharge of official duties are protected [including
the exclusion of trap cases]
This makes rule of law compliant.
d. Section 6A had no timeline;
Section 17A adds a timeline (3 months + 1 month
extension) to decide.

This makes it reasonable.”

12.5 Section 17A of the Act is applicable to every police officer who
intends to make an enquiry, inquiry or investigation with regard to
any public servant in respect of an offence said to have been
committed under the provisions of the said Act relatable to a
recommendation made or decision taken in the discharge of official
duties.
12.6 According to learned Solicitor General, the scheme of
Section 17A of the said Act is to protect those honest public
servants who have not committed any offence under the Act,
relatable to any recommendation made or decision taken by them




72


as a public servant in discharge of their official functions or duties.
The object of the previous approval is to shield honest officers from
frivolous and vexatious complaints being made against them for
making a recommendation or taking a decision during the course
of discharge of their official functions or duties.
12.7 Apparently, Section 17A is not to protect the persons who
have committed an offence under the Act or corrupt public servants
inasmuch as on an approval being given, an enquiry or inquiry or
investigation can be conducted by a police officer whether
belonging to the CBI or State Police. However, the contention of Sri
Bhushan is that the object and purpose of inserting Section 17A to
the Act is, in fact, to protect dishonest officers who have committed
an offence under the provisions of the Act during the course of
discharging their official functions or duties and while making a
recommendation or taking a decision. In other words, the
contention of learned counsel for the petitioner was that by not
granting an approval, the Government can easily protect the
officers who are guilty of corruption and who may be complicit with
the higher-ups or even the political executives by committing
offences under the Act during the course of discharge of their




73


official functions or duties while making a recommendation or
taking a decision in the matter.
12.8 Whether, such an approval is required to be given, is the
first question. This aspect pertains to the constitutional validity of
Section 17A of the Act. Secondly, whether the approval should be
given by the Government itself is another point of controversy. This
question is considered independent of the first question regarding
constitutional validity and relates to the working of Section 17A of
the Act. The discussion to follow shall focus on these two aspects.
Meaning of “Government” under Section 17A of the Act:
13. Taking the second aspect first, the expression “Government”
in Section 17A of the Act which is not defined therein can be
considered. Under the General Clauses Act, 1897, the expression
“Government” is defined as under:
“3. Definitions. – In this Act, and in all Central Acts and
Regulations made after the commencement of this Act,
unless there is anything repugnant in the subject or
context,—
xxx
(23) “Government” or “the Government” shall include
both the Central Government and any State
Government;”

13.1 The expressions used in clauses (a) and (b) of Section 17A
is “Government” with reference to the affairs of the Union and




74


affairs of the State respectively, and “the authority competent to
remove him from his office, at the time when the offence was
alleged to have been committed” vide clause (c) of the said Section.
These are the three authorities which have been conferred with the
power to grant a prior approval before a police officer can conduct
any inquiry or enquiry or investigation into any offence alleged to
have been committed by a public servant under the Act where the
alleged offence is relatable to any recommendation made or
decision taken by such public servant in discharge of his official
functions or duties.
13.2 Although the expression “Government” has not been defined
under the Act, the expression “authority competent to remove him
from his office” is well indicated in the Constitution and in service
jurisprudence.
13.3 What should be the meaning to be assigned to the
expression “Government”, when it relates to either the Union
Government or State Government, is the crux of the matter in the
instant case. This is because one of the contentions of the learned
counsel for the petitioner is that a public servant who works either
in the Union Government or the State Government would not be




75


dealt with in an impartial manner if that very Union Government
or the State Government, as the case may be, is to grant prior
approval before a police officer can make an inquiry or investigation
into any of the offences alleged to have been committed by a public
servant under the Act, where the alleged offence is relatable to any
recommendation made or decision taken by such public servant in
discharge of his official functions and duties. Hence, it is necessary
to unravel the connotation of the expression “Government” whether
Union Government or State Government, as the case may be, in
the context of Section 17A of the Act.
13.4 In Pashupati Nath Sukul vs. Nem Chandra Jain, (1984)
2 SCC 404, a three-Judge Bench of this Court observed that the
expression “Government” generally connotes the three estates
under the Constitution of India, namely, the Legislature, the
Executive and the Judiciary, but in a narrow sense it is used to
connote the Executive only. The meaning to be assigned to the
expression “Government”, therefore, depends upon the context in
which it is used. In Section 17A of the Act the word “Government”
means the Executive.




76


13.5 In National Textile Corporation Limited vs. Naresh
Kumar Badrikumar Jagad, (2011) 12 SCC 695, it was observed
that the expression “Government” means a group of people
responsible for governing the country. It consists of the activities,
methods and principles involved in governing a country or other
political unit such as the State. It is a political concept formulated
to rule the nation. Also, “Government Department” means
something purely fundamental i.e., related to a particular
Government or to the practice of governing a country. Thus, the
expression denotes essentially the Executive. Further, to perform
the functions, the Government has its various departments and to
facilitate its working, the government itself may be divided into
various sections, such as, corporations of the Government which
are in substance agencies of the Government. However, a
government company is not a department of the Government as it
has its own juristic identity and is distinct from the Government.
13.6 In Mohammed Ajmal Mohammad Amir Kasab vs. State
of Maharashtra, (2012) 9 SCC 1, while considering the definition
of “Government” under Section 3(23) of the General Clauses Act,
1987, this Court observed that in a narrower sense, “Government




77


of India” is only the executive limb of the State. It comprises of a
group of people that constitute the administrative bureaucracy
that controls the executive functions and powers of the State at a
given time. That in certain contexts, the expression “Government
of India” implies the Indian State, the juristic embodiment of the
sovereignty of the country that derives its legitimacy from the
collective will and consent of its people.
Relevant Provisions of the Constitution:
14. Since the word “Government” essentially refers to the
Executive, the relevant provisions of the Constitution under which
it functions could be discussed. According to Article 53(1) of the
Constitution, the executive power of the Union is vested in the
President. However, this does not envisage that the President
should personally approve all administrative orders passed by the
Union Government. There is a mechanism by which the
responsibility for decision-making would pass from the President
to others even though power is formally vested in the President. In
fact, Article 53(1) of the Constitution itself states that the President
may exercise his executive powers “either directly or through
officers subordinate to him in accordance with this Constitution”.




78


Therefore, the President can act through Ministers and civil
servants under Article 53(1). The power to make rules of business
under Article 77(3) of the Constitution may be traced from Article
53(1) of the Constitution. The rules of business enable the powers
to be exercised by a Minister or any official subordinate to him
subject to the political responsibility of the Council of Ministers to
the Legislature. The rules of business are administrative in nature
for governance of its business of the Government of India framed
under Article 77 of the Constitution. Article 77(1) states that all
executive actions of the Central Government are to be expressed to
be taken in the name of the President. In this context, Article 77(3)
provides that the President shall make rules for the more
convenient transaction of the business of the Government of India
and for the allocation among Ministers of the said business. This
Article provides for framing of rules for transaction of business as
well as rules for allocation of business. Any decision made by a
Minister or officer under the rules of business as per Article 77(3)
is the decision of the President. Similarly, Article 154 of the
Constitution states that the Executive power of the State is vested




79


in the Governor and the Article corresponding to Article 77 is
Article 166 of the Constitution.
14.1 Article 77 of the Constitution speaks that all executive
action of the Government of India shall be expressed to be taken in
the name of the President. Distinction was drawn between
executive power of the Union and the executive functions vested in
the President by various Articles of the Constitution in Samsher
Singh vs. State of Punjab, AIR 1974 SC 2192 (“Samsher
Singh”). Whenever any executive function is to be exercised by the
President, whether such function is vested in the Union or in him
as President, it is to be exercised on the advice of the Council of
Ministers, the President being the constitutional head of the
executive and as per allocation under Article 77(3), subject to
certain exceptions, such as, the choice of the Prime Minister,
dismissal of a State Government which has lost its majority in the
House of People, dissolution of the House, etc. Thus, even those
functions which are required by the Constitution to be performed
on the subjective satisfaction of the President could be delegated
by rules of business made under Article 77(3) of the Constitution,
to a Minister or to a Secretary to the Government of India, because




80


satisfaction of the President does not indicate personal satisfaction
but in the constitutional sense, the satisfaction of the Council of
Ministers who advise the President. This may further be delegated
to a particular Minister or official under the rules of business
framed under Article 77(3) of the Constitution. Similarly, in Article
166(3) of the Constitution, the principle would apply mutatis
mutandis in the case of Governor of a State. However, in fact, the
order passed by the Minister, though expressed in the name of the
President, remains that of the Minister and it cannot be treated to
have been issued by the President personally and such an order is
subject to judicial review. Article 77(3) of the Constitution does not
speak about delegation of functions but allocation of functions and
therefore, the order passed by a Minister who has been allocated
that function is the order of the Minister. Thus, all orders which
are expressed in the name of the President are authenticated in the
manner laid down in Article 77(2) of the Constitution. Although,
they do not require any personal signature of the President, the
author of the order would sign it.
14.2 Thus, vesting of powers of the Union Government or the
State Government does not envisage that each matter must be




81


disposed of by the President or the Governor, as the case may be,
or for that matter, by the Cabinet or personally by the Minister.
When powers are entrusted to the Minister by law, it is not
envisaged that the department in his charge would be run
personally by the Minister to reach a decision in each case. It is
therefore necessary for the Minister’s power to be exercised by
officers (civil servants) in the concerned department and as a result,
a large number of decisions are taken continuously by civil
servants which are also taken collectively at times.
14.3 Article 77(3) of the Constitution enables the President to
make rules for the more convenient transaction of the business of
the Government of India and for the allocation of Ministers to the
said business by the rules of business framed under Article 77(3)
of the Constitution. A particular official of a Ministry may be
authorised to take any particular decision or to discharge any
particular functions, but when such authorised official does any
act so authorised, he does so not as a delegate of the Minister but
on behalf of the Government vide A Sanjeevi Naidu vs. State of
Madras, AIR 1970 SC 1102 (“Sanjeevi Naidu”). Thus, the act of
the Minister or officer who is authorised by the rules of business is




82


the act of the President (or the Governor) or of the Government of
India (or the State Government) in whom the function or power is
vested by the Constitution or by any statute.
14.4 The business allocated to a Ministry is normally disposed
of by or under the direction of the Minister except when it is
necessary or desirable to submit a case to the Prime Minister or
Chief Minister, as the case may be or the Cabinet or any of its
Committees. Except the aforesaid matters, all other matters are
disposed of by the civil servants in accordance with the Minister’s
directions and rules of business vide Ishwarlal Girdharilal Joshi
vs. State of Gujarat, AIR 1968 SC 870 (“Ishwarlal Girdharilal
Joshi”).
14.5 In Carltona Ltd. vs. Commissioner of Works, (1943) 2
All ER 560, the position in England has been explained by holding
that the whole system of departmental organization and
administration is based on the view that Ministers, being
responsible to Parliament will ensure that important duties are
committed to experienced officials. Sometimes, however, owing to
political necessity and not because of legal necessity, a Minister
must exercise power personally rather than delegating it to the




83


officers in his department. For ease of reference, the pertinent
passage from the aforesaid judgment is extracted as under:
“In the administration of government in this country the
functions which are given to ministers (and
constitutionally properly given to ministers because they
are constitutionally responsible) are functions so
multifarious that no minister could ever personally attend
to them. To take the example of the present case no doubt
there have been thousands of requisitions in this country
by individual ministers. It cannot be supposed that this
regulation meant that, in each case, the minister in person
should direct his mind to the matter. The duties imposed
upon ministers and the powers given to ministers are
normally exercised under the authority of the ministers by
responsible officials of the department. Public business
could not be carried on if that were not the case.
Constitutionally, the decision of such an official is, of
course, the decision of the minister. The minister is
responsible. It is he who must answer before Parliament
for anything that his officials have done under his
authority, and, if for an important matter he selected an
official of such junior standing that he could not be
expected competently to perform the work, the minister
would have to answer for that in Parliament. The whole
system of departmental organisation and administration is
based on the view that ministers, being responsible to
Parliament, will see that important duties are committed
to experienced officials. If they do not do that, Parliament
is the place where complaint must be made against them.”
(underlining by me)

14.6 The Government of India (Allocation of Business) Rules,
1961 and the Government of India (Transaction of Business) Rules,
1961 made by the President are for the more convenient




84


transaction of the business of the Government of India and for
allocation among the Ministers of the said business. Similarly,
under Article 166(3) of the Constitution, the Governor may make
rules for the business of the State. These rules determine the
official hierarchy which will act and take a decision in a particular
matter. The decision of any Minister or officer under the Rules of
Business made under Article 77(3) or 166(3) is regarded as the
decision of the President or Governor, as the case may be as they
are taken in their names. However, such powers and functions are
exercised by civil servants according to the rules of business.
14.7 In Sanjeevi Naidu, in the context of Section 68(C) of the
Motor Vehicles Act, 1939, when the validity of the draft scheme
was challenged, the question was whether the opinion requisite
under the aforesaid provision was not formed by the State
Government but instead by the Secretary to the Government in the
Industries, Labour and Housing Department, acting in pursuance
of power conferred on him under Rule 23-A of the Madras
Government Business Rules. In paragraph 10, this Court observed
as under:




85