Shielding power from inquiry

The split verdict of the Supreme Court of India on Section 17A of the Prevention of Corruption Act is less about statutory interpretation and more about the unresolved anxiety at the heart of Indian governance. How does a democracy protect officials who take difficult decisions in good faith without constructing legal barriers that prevent corruption from even being examined?

That this question has divided the Court is not surprising. What is striking is how starkly the two judicial answers diverge, revealing competing constitutional instincts about power, accountability, and institutional trust.

Section 17A, inserted through a 2018 amendment, requires prior approval from a competent authority before any inquiry or investigation can be initiated against a public servant for decisions or recommendations made in the course of official duties. Its defenders present it as a necessary antidote to fear-driven administration, arguing that officials today operate under constant threat of retrospective criminalisation. Its critics see something far more troubling, a statutory gatekeeper that can prevent scrutiny from even beginning.

Justice BV Nagarathna and Justice KV Vishwanathan agree on one point: misuse of anti-corruption law is a genuine concern. Beyond that, their constitutional paths sharply diverge.

Justice Nagarathna treats Section 17A as constitutionally irredeemable. In her reasoning, the problem is not merely how the approval power is exercised but the very idea of requiring permission before investigation. By placing an administrative veto at the threshold, the law does not regulate investigation, it blocks it. That, she argues, inverts the logic of an anti-corruption statute, transforming a law meant to expose wrongdoing into one that delays or denies scrutiny.

Her concern is structural. Senior bureaucratic and political decisions are rarely made in isolation. They emerge from layered consultations, collective approvals, and institutional hierarchies. Requiring approval from within that same ecosystem to initiate inquiry creates an inherent conflict of interest. It also produces unequal treatment. Those at higher levels, whose decisions have the widest public impact, enjoy a protective filter unavailable to lower-level officials. In constitutional terms, such classification struggles to justify itself under Article 14’s guarantee of equality before law.

Justice Nagarathna’s opinion also reflects a deeper judicial memory. The Supreme Court has previously rejected executive control over the investigative process in corruption cases, most notably in Vineet Narain and Subramanian Swamy. From that perspective, Section 17A appears not as innovation but as legislative persistence, a revised mechanism pursuing an objective the Court has already found constitutionally suspect.

Justice Vishwanathan’s approach is markedly different. He does not deny the risks embedded in Section 17A, but he is unwilling to conclude that the statute must therefore fall. His judgment begins from a concern that is increasingly salient in contemporary India, the reputational and professional damage inflicted by criminal investigation itself, regardless of outcome. In an era of instant media amplification and irreversible public perception, even unfounded allegations can permanently scar an official.

For Justice Vishwanathan, the constitutional question is not whether abuse is possible but whether the law’s objective is legitimate. Preventing frivolous or motivated complaints, he holds, is a constitutionally permissible aim. The flaw, in his view, lies in who exercises the screening power. Vesting that authority in the executive, which may be institutionally or politically entangled with the decisions under scrutiny, undermines neutrality. His solution is therefore corrective rather than destructive, retain the requirement of prior approval but relocate the power to independent constitutional bodies such as the Lokpal at the Centre and the Lokayukta in the states.

This judicial re-engineering reflects a belief that institutional design can reconcile competing constitutional values. Accountability need not come at the cost of administrative confidence, provided the screening mechanism is insulated from executive influence.

Yet this compromise raises difficult questions. Lokpal and Lokayuktas remain unevenly empowered and inconsistently staffed across the country. Delays in appointments, jurisdictional disputes, and capacity constraints are well documented. Transferring sanction authority to these bodies may enhance independence on paper while introducing new procedural choke points in practice. The risk is that scrutiny becomes slower rather than stronger, relocated rather than removed.

More fundamentally, the split verdict exposes a deeper philosophical divide about where accountability should begin. Justice Nagarathna’s position assumes that investigation is a fact-finding exercise that must precede judgment, not follow permission. In this view, early inquiry is not punishment but process, and fear of inquiry cannot outweigh the public interest in detecting abuse of power. Justice Vishwanathan, by contrast, treats investigation itself as a consequential act, capable of chilling governance and damaging reputations, thereby justifying a preliminary filter.

Both instincts respond to real institutional failures. India has seen investigative agencies misused for political ends, just as it has witnessed corruption cases stall due to bureaucratic shielding. The constitutional challenge lies in designing safeguards that address both pathologies without entrenching either.

What is notably absent from the debate is empirical assessment. Section 17A was justified on claims of policy paralysis, yet there has been little transparent evaluation of whether the provision has improved decision-making quality or merely reduced investigative throughput. Constitutional adjudication in such contexts risks becoming an exchange of intuitions rather than evidence-based governance reform.

The reference of the matter to a larger bench is therefore an opportunity, not merely to choose between two judicial philosophies, but to articulate a more nuanced framework. One possible approach is to differentiate stages of scrutiny. Preliminary, time-bound inquiries limited to fact verification could proceed without prior approval, while full investigations involving coercive powers could require independent sanction. Such sequencing would preserve early accountability while protecting officials from unfounded escalation.

Transparency must also be central. Decisions granting or refusing approval should be reasoned, recorded, and open to judicial review. Secrecy is what transforms safeguards into shields.

Ultimately, the question posed by Section 17A is not whether honest officials deserve protection. They do. The real question is whether that protection should come at the cost of delaying truth itself. When accountability depends on permission, the balance of power subtly shifts away from the public interest.

When the larger bench of the Supreme Court delivers its final word, it will not merely interpret a statutory provision. It will define where India draws the constitutional line between caution and concealment, between governance confidence and democratic accountability. That line will shape not only how corruption is prosecuted, but how power is exercised.

The writer is a Delhi-based legal affairs commentator and columnist. She writes on law, governance, and institutional reform.