Prior approval for enquiry or inquiry under the Prevention of Corruption Act — Justice B.V. Nagarathna’s dissent: Section 17A unconstitutional for protecting the corrupt rather than the honest
Centre for Public Interest Litigation vs Union of India
Writ Petition 1373 of 2018 decided on
Justice B V Nagarathna and Justice K.V. Viswanathan,
Decided on 13 January 2026
Justice B.V. Nagarathna delivered a dissenting judgment holding that Section 17A of the Prevention of Corruption Act, 1988 is unconstitutional and liable to be struck down. Her core reasoning is as follows:
No prior approval is constitutionally justified
Justice Nagarathna held that the very requirement of prior approval before even conducting an enquiry, inquiry or investigation is unjustified. The issue is not who grants approval, but whether such approval should exist at all. In her view, no prior approval is required, as it obstructs the investigative process at its inception
Section 17A resurrects provisions already struck down by the Court
She held that Section 17A is, in substance, a legislative attempt to revive the Single Directive and Section 6A of the DSPE Act, both of which were struck down in Vineet Narain and Subramanian Swamy. Parliament cannot reintroduce, in another form, what the Supreme Court has already declared unconstitutional.
Provision defeats the object of the Prevention of Corruption Act
According to the dissent, Section 17A protects the corrupt rather than the honest. Honest officers do not need such blanket protection, whereas corrupt officials benefit because the provision prevents even a preliminary enquiry, thereby shielding misconduct at the threshold and undermining the Act’s anti-corruption purpose
Interpretative substitution is impermissible
Justice Nagarathna expressly disagreed with the majority’s approach of reading “Government” or “competent authority” in Section 17A as “Lokpal” or “Lokayukta”. She held that courts cannot rewrite a statute under the guise of interpretation, especially when the constitutional validity of the provision itself is in question
Section 17A is arbitrary due to structural bias and conflict of interest
The dissent highlights multiple sources of arbitrariness:
Policy bias, where officials of the same department assess decisions taken by their colleagues.
Collective decision-making, making it artificial and unfair to single out one officer for approval or refusal.
Conflict of interest, as the approving authority may have participated in the very decision under scrutiny.
The approval decision being an institutional, intra-departmental exercise, lacking neutrality and independence.
These factors, taken together, violate principles of natural justice and fairness
Violation of constitutional guarantees
Justice Nagarathna concluded that Section 17A is arbitrary, unreasonable, and violative of Articles 14 and 21 of the Constitution, as it obstructs the rule of law, weakens institutional accountability, and erodes public confidence in anti-corruption mechanisms
Conclusion (Dissent):
Justice Nagarathna held that Section 17A undermines the constitutional mandate to combat corruption, revives invalidated protections for public servants, and unjustifiably curtails investigative independence. She therefore held that Section 17A must be struck down in its entirety.
