The Supreme Court on Tuesday delivered a split verdict on a plea challenging the constitutional validity of Section 17A of the Prevention of Corruption (PC) Act.

The provision bars investigation into offences relatable to official functions of public servants without the previous approval of the Union or State government.

While Justice BV Nagarathna held the provision to be arbitrary, Justice KV Viswanathan ruled that it is constitutionally valid, subject to the condition that instead of the government, the previous approval will depend on the recommendation of the Lokpal or the Lokayukta.

Considering the divergent views, the Court ordered that the matter be placed before the Chief Justice of India (CJI) for a fresh consideration of the issues by an appropriate bench.

The provision, which was introduced in 2018, had been challenged by the Centre for Public Interest Litigation (CPIL).

In her verdict, Justice Nagarathna opined that the provision is an attempt to protect the corrupt.

"Section 17A of the Prevention of Corruption Act is contrary to the objects of the said Act and unconstitutional and hence ought to be struck down... I hold that no prior approval is needed. This Section is nothing but an attempt to resurrect the Section which was struck down and is thus an attempt to protect the corrupt," the judge said while pronouncing the verdict.

Justice Nagarathna added that one of the concerns is that considering the structure of the government, approvals won't be granted by the State, thus defeating the object of the Act. Allegations of corruption cannot be thwarted at the threshold, the judge opined.

"Object of the Section 17A to protect honest officers cannot override the objective of preventing corruption. Even a bare inquiry required to be conducted is completely precluded under Section 17A without prior sanction."

She further said that any frivolous complaint can be scuttled under Section 19 of the PC Act, but to preclude even a preliminary inquiry under Section 17A cannot be sustained.

"Every such complaint cannot be frivolous and section 17A has an underlying presumption that any such complaint to the police will be false and frivolous," the judge said.

Her judgment went on to state,

"Section 17A grants protection to corrupt government officers. It protects offenders under the Prevention of Corruption Act. SG Mehta has submitted that in today's world it is difficult to gauge truth from false narratives. Then should all such complaints be not proceeded? If no approval for preliminary inquiry, then truth will be hanging in the balance. If decisions are taken post inquiry, it will not lead to any policy paralysis."

However, Justice Viswanathan opined that Section 17A has no vice of invalid classification.

"Possibility of abuse is no ground to strike down Section 17A. Constitution cannot throw hands up in air and say it is caught between a rock and a hard place," the judge said.

Justice Viswanathan added that striking down Section 17A will be akin to throwing out the baby with the bathwater. The cure will be worse than the disease, the judge remarked.

Providing an alternative solution, Justice Viswanathan said that the appropriate course will be to forward complaints under Section 17A to the Lokpal. An inquiry can be ordered if the Lokpal finds merit in the complaint against the public servant, the judge said.

"There is a need for independent examination as per Vineet Narain and thus the need to be sent to Lokpal," Justice Viswanathan reasoned.

He also said that if Section 17A is invalidated on the ground that prior approval is not needed, it will lead to coercive steps even against those discharging duties honestly and would thus be regressive.

"Object of 17A was not to condone illegal acts, but to have a screening mechanism. Bhagavad Gita says 'for self respecting man death is more preferable than disrepute'. In this age of technology and social media, the act of parading in court etc is irreversible even if proven innocent later," the judge opined.

Advocate Prashant Bhushan appeared for CPIL.

Solicitor General Tushar Mehta appeared for the Union government.

Story to be updated.