[Answered] Examine the ‘prior sanction’ requirement under Section 17A of the Prevention of Corruption Act as a tool for protecting honest officials. Evaluate whether it hinders an efficient anti-corruption regime, in light of the recent judicial split verdict in the CPIL case.

Introduction

India ranked 93rd in Transparency International’s Corruption Perceptions Index 2023, highlighting entrenched corruption. Section 17A of the PC Act seeks to protect honest decision-making, but raises serious constitutional and governance concerns.

Prior Sanction as a Protective Tool for Honest Officials

1. Preventing Policy Paralysis: Justice K.V. Viswanathan emphasised that absence of prior sanction exposes officers to frivolous and mala fide investigations, encouraging a ‘risk-averse bureaucracy’ and stalling developmental governance.
2. Safeguarding Administrative Reputation: The Court acknowledged that in an era of media trials, even preliminary inquiries can cause irreversible reputational damage—echoing P. Sirajuddin v. State of Madras (1970), where reputation was held integral to dignity.
3. Ensuring Decisional Autonomy: The 2nd ARC (Ethics in Governance) observed that excessive vigilance scrutiny undermines bold decision-making, especially in infrastructure, defence procurement and emergency administration.

Prior Sanction as an Impediment to Anti-Corruption Enforcement

1. Foreclosure of Investigation at Threshold: Justice B.V. Nagarathna held that Section 17A ‘forestalls inquiry itself’, preventing discovery of truth and emboldening corruption under the guise of official duty.
2. Revival of Invalidated Legal Protection: The provision mirrors Section 6A of the DSPE Act, struck down in Subramanian Swamy (2014) for violating Article 14 and diluting the principle that ‘however high you may be, the law is above you’.
3. Conflict with Mandatory FIR Doctrine: By mandating prior approval even before preliminary inquiry, Section 17A undermines Lalita Kumari (2014), which requires compulsory registration of FIR for cognisable offences.

Constitutional and Institutional Tensions Revealed

1. Executive Conflict of Interest: Sanctioning authority resting with the political executive creates a structural conflict, particularly where the accused official and sanctioning minister belong to the same department.
2. Unequal Protection under Article 14: Justice Nagarathna noted discriminatory shielding of decision-makers, while lower-level officials executing orders remain exposed—violating equality before law.
3. Weakening of Rule of Law: The N.N. Vohra Committee (1993) warned that executive interference in investigations strengthens the criminal-bureaucratic-political nexus.

Judicial Middle Path: Reconciling Protection with Accountability

1. Independent Institutional Gatekeeping: Justice Viswanathan proposed vesting approval powers in independent bodies like the Lokpal/Lokayukta, aligning the PC Act with the Lokpal Act’s normative framework.
2. Time-Bound and Transparent Sanction: Imposing a strict statutory timeline for sanction decisions can prevent ‘pocket vetoes’ and investigative delays.
3. Exclusion of Per Se Corrupt Acts: Acts such as bribery, embezzlement and disproportionate assets—clearly unrelated to bona fide official duty—should be statutorily exempted from prior sanction.

Conclusion

As Justice R.M. Lodha observed, ‘corruption corrodes governance.’ The CPIL split affirms that accountability and protection must coexist, ensuring procedure shields honesty without becoming a refuge for corruption.