Permission to suspect: Two judges, two fears and a Republic unsure of whether to watch or look away

Section 17A of the Prevention of Corruption Act is a curious provision. It does not deny investigation; it merely asks that investigation be polite. Before the police may even inquire into corruption arising from an official decision, they must first ask the government or the authority that can remove the officer whether inquiry itself is appropriate.

In other words, corruption may be illegal, but looking into it requires clearance.

The Supreme Court’s recent split verdict on this provision is, therefore, not really about Section 17A. It is about something more philosophical: how power and accountability should be viewed.

Justice KV Viswanathan and Justice BV Nagarathna saw the same law from two very different dangers. One fears a bureaucracy paralysed by fear. The other fears a republic anaesthetised by deference.

Justice Viswanathan begins with a temperament familiar to anyone who has watched government from close quarters. Decisions are difficult, files are slow and courage in administration is already in short supply. Add the threat of criminal law to every judgment call and soon no one will judge at all.

So his judgment treats Section 17A as a necessary filter. Not to block corruption, but to block chaos. He is careful not to romanticise impunity. Corruption, he agrees, must be punished. Yet, he insists that the path to punishment should not become a minefield for those who merely err.

His solution is classic judicial craftsmanship. He keeps the law alive, but reshapes the way it works. He inserts the Lokpal as an intermediary. He builds timelines and creates a screening architecture meant to separate the frivolous from the serious.

It is a judgment that trusts structure. And more importantly, it trusts the State’s need to breathe. Its underlying faith is that governance is fragile and that fear is one of its most corrosive enemies.

Justice Nagarathna’s judgment begins elsewhere. Not with the psychology of officers, but with the memory of the Constitution.

She remembers that the Supreme Court has already met laws like Section 17A and buried them. First came the "Single Directive," an executive order that required government approval before the Central Bureau of Investigation (CBI) could inquire into senior officers. It died in Vineet Narain. Then came Section 6A of the Delhi Special Police Establishment (DSPE) Act, parliament's second attempt at the same idea. That too died in Subramanian Swamy. Both were struck down for the same sin: they made investigation conditional on grace.

She was not persuaded by the idea that a bad idea becomes good if it wears a new coat. Her objection is not emotional; it is architectural.

According to her, a law that requires permission before inquiry creates a structural conflict of interest. The institution that may be embarrassed by investigation is asked to decide whether investigation should exist at all. This is not neutrality. It is institutional self-awareness masquerading as fairness.

She is also unmoved by judicial creativity. Replacing “government” with “Lokpal” by interpretation, she says, is not interpretation - it is drafting with a wig on. Courts are not repair shops for legislative design. If a law is constitutionally misshapen, it must be returned, not tailored.

Her judgment is not impatient with administration. It is impatient with power that fears being looked at.

The split is not really legal; it is psychological. Justice Viswanathan fears a State that freezes because it is watched too closely. Justice Nagarathna fears a State that rots because it is watched too little.

One fears overreach, the other fears insulation. One worries about courage, the other worries about conscience. Both fears are respectable, but they do not belong to the same constitutional tradition.

A Constitution is not designed primarily to make power comfortable. It is designed to make power accountable. Administrative efficiency is a public good, but accountability is a constitutional one. The question is not whether honest officers deserve protection. They do. The question is: protection from what, and at what stage?

Protection from false prosecution is essential. Protection from inquiry is dangerous. Inquiry is not punishment; it is the process by which punishment or exoneration becomes possible. And when inquiry itself requires permission, law stops being an instrument of truth and becomes a guest in the house of power.

There is something deeply attractive about the idea of screening. It sounds rational. It sounds balanced. It sounds like governance with good manners. But screening before inquiry assumes that truth is obvious at the threshold. It assumes that seriousness can be judged without investigation. It assumes that the difference between corruption and error is visible from a file. This is faith, not method.

Corruption is not always dramatic. It is often procedural. It hides in collective decisions, dispersed responsibility, technical language and respectable paperwork. A law that blocks inquiry at the door does not stop harassment; it stops discovery.

Justice Viswanathan trusts that better screening will solve this. Justice Nagarathna doubts that screening can ever be independent when power screens itself.

One believes in design, the other believes in distrust. Constitutions, when healthy, side with distrust.

A republic is not built on the comfort of those who govern. It is built on the right of those who are governed to question. Administrative courage matters, but courage that cannot survive inquiry is not courage; it is habit.

Justice Nagarathna’s judgment understands something old-fashioned but essential: that power must live with inconvenience. That the right to ask questions must never depend on the permission of the answerer.

Justice Viswanathan’s judgment is elegant.

Justice Nagarathna’s is unsettling.

And in constitutional law, unsettling is often a sign of honesty. Because the most dangerous moment for a democracy is not when it is loud with dissent, but when it is quiet with permission. Section 17A does not silence investigation; it merely teaches it to knock politely, wait patiently and accept refusal gracefully. Corruption does not fear knocking. It fears entry. And a Constitution, if it remembers why it was written, must always prefer the right to enter over the comfort of being undisturbed.

With a split verdict, as procedure demands, the Chief Justice of India will decide which larger bench must inherit this unease.

The law, for the moment, will hover in constitutional suspension, neither affirmed nor buried, only waiting to be spoken again in a different voice. There is something fitting about that. A provision that asks permission before inquiry now waits for permission to be judged.

And when it is finally considered, the question will no longer be about technical clauses or clever drafting. It will be about what kind of republic we think we are: one that teaches power to be comfortable, or one that teaches it to answer.