Abstract

The Prevention of Corruption (Amendment) Act, 2018 marked a decisive legislative shift in India’s anti-corruption regime by introducing procedural safeguards intended to protect bona fide administrative decision-making from indiscriminate criminal prosecution. While judicial discourse has largely confined itself to the non-retrospective application of amended offence provisions under Article 20(1) of the Constitution, insufficient attention has been paid to the constitutional character of the amended procedural framework—particularly Sections 17A and 19. This article argues that these provisions are curative, jurisdictional, and protective in nature, operating as constitutional restraints on executive investigative power rather than as alterations to criminal liability. It contends that procedural safeguards governing investigation and sanction must apply to all State action undertaken after the amendment, irrespective of the date of the alleged offence. Drawing upon constitutional doctrine, legislative intent, and principles of fairness under Articles 14 and 21, the article proposes a principled framework for reconciling anti-corruption accountability with constitutional discipline in criminal process.

I. Introduction: Criminal Law, Governance, and the Problem of Over-Criminalisation

Modern constitutional democracies increasingly confront the problem of over-criminalisation of governance. Administrative decision-making—often involving discretion, policy judgment, and collective responsibility—has become vulnerable to criminal scrutiny in a manner that risks paralysing governance itself. In India, the Prevention of Corruption Act, 1988 emerged as a particularly potent site of this tension. While its objective of combating corruption remains unassailable, its pre-amendment structure permitted a wide and indeterminate criminalisation of official conduct, often without clear proof of quid pro quo or mens rea.

The 2018 amendment to the Prevention of Corruption Act represents a legislative acknowledgment of this structural imbalance. Parliament sought to recalibrate the relationship between criminal accountability and administrative autonomy by narrowing offence definitions and, crucially, by introducing procedural safeguards governing investigation and sanction. However, an unresolved constitutional question persists: what law governs State action undertaken after such legislative correction when the alleged conduct predates the amendment?

This article addresses that question not from the perspective of accused liability, but from the standpoint of constitutional discipline over State power.

II. Article 20(1) and the Constitutional Boundary Between Substantive and Procedural Law

Article 20(1) of the Constitution embodies a core guarantee against ex post facto penal consequences. It prohibits retrospective creation of offences and retrospective enhancement of punishment. However, the Supreme Court has consistently clarified that this prohibition does not extend to procedural law.

In Rattan Lal v. State of Punjab, the Court recognised that while penal provisions cannot be retrospectively applied to the detriment of an accused, procedural changes—particularly those that are beneficial or neutral—may operate retrospectively. This distinction was doctrinally consolidated in Hitendra Vishnu Thakur v. State of Maharashtra, where the Court authoritatively held that Article 20(1) does not bar retrospective application of procedural provisions governing investigation, sanction, or trial, provided such provisions do not create new offences or enhance punishment.

The Court in Hitendra Vishnu Thakur articulated a clear constitutional boundary: substantive criminal liability is frozen at the time of the alleged offence, but the process by which the State investigates, prosecutes, and tries that offence remains subject to the law as it exists at the time such process is undertaken. This principle has been consistently followed in subsequent Supreme Court jurisprudence and forms a stable pillar of Indian constitutional criminal law.

Accordingly, Article 20(1) cannot be invoked to compel the State to apply an obsolete or discredited procedural regime after Parliament has consciously corrected it. To do so would invert the constitutional purpose of the provision—transforming a safeguard against oppression into a justification for continuing unconstitutional process.

III. Procedural Retrospectivity and Fair Procedure Under Article 21

Procedural law has long been understood as ambulatory in nature. Laws regulating jurisdiction, investigation, and sanction govern the process as it unfolds, not the historical moment of alleged conduct. This distinction is not merely technical; it is constitutional.

Investigation is not a private act. It is an exercise of sovereign power that directly implicates liberty, dignity, reputation, and institutional balance. Consequently, laws that regulate investigative authority operate prospectively upon the exercise of power, not retrospectively upon past conduct.

Where Parliament alters the conditions under which the State may investigate, such alteration governs all future exercises of that power unless expressly excluded. Any contrary interpretation would constitutionalise defective procedure and undermine legislative self-correction, in direct tension with Article 21’s guarantee of fair and just process.

IV. Section 17A as a Constitutional Restraint on Executive Investigation

Section 17A, introduced in 2018, prohibits any enquiry or investigation into decisions taken by a public servant in discharge of official functions without prior approval of the competent authority. The constitutional significance of this provision lies not in whom it protects, but in what it restrains.

Section 17A does not define an offence, dilute criminal liability, or create immunity. Instead, it regulates the timing and legitimacy of investigative intrusion into executive decision-making. Its trigger is the initiation of investigation, not the date of the alleged offence. The statutory language is prohibitory and mandatory, establishing a jurisdictional condition precedent.

Properly understood, Section 17A constitutionalises the distinction between errors of governance and criminal misconduct. It reflects a legislative judgment that investigative discretion itself requires constitutional discipline, particularly where policy and administrative decisions are concerned.

V. Sanction under Section 19: Jurisdiction, Legitimacy, and Constitutional Validity

Sanction for prosecution is often described as procedural, yet its constitutional role is more profound. Sanction is a jurisdictional fact that legitimises the exercise of criminal jurisdiction over executive decision-making.

An investigation initiated in violation of a mandatory statutory restraint cannot be retrospectively validated through sanction. Jurisdiction cannot be conferred at the culmination of a process that was unconstitutional at its inception. To accept post-facto approval as curative would reduce sanction to a formal ritual and negate its constitutional purpose.

The amended framework reinforces the requirement of meaningful application of mind, aligning sanction with constitutional values of fairness, accountability, and institutional integrity.

VI. Curative Legislation and Legislative Self-Correction

Legislative amendments to criminal law often reflect evolving policy choices. However, certain amendments—such as the 2018 changes—are curative in character. They arise from legislative recognition that existing law has produced systemic injustice or institutional dysfunction.

Once Parliament acknowledges misuse and corrects the legal framework, constitutional morality does not permit the State to persist in applying the very procedure it has declared defective. Curative legislation is not merely prospective policy; it is institutional self-correction, and it must inform all future exercises of State power.

VII. Equality, Arbitrariness, and Temporal Discrimination

Article 14 prohibits arbitrariness in State action. When investigations initiated after the same date are subjected to different procedural standards solely because the alleged conduct occurred at different points in time, such classification becomes constitutionally suspect.

The object of Section 17A is to regulate investigative discretion prospectively. A temporal classification that defeats this object lacks rational nexus. Identically situated public servants, subjected to identical investigative action at the same time, cannot be constitutionally treated unequally due to historical happenstance.

VIII. Reconciling Accountability with Constitutional Fairness

A disciplined procedural regime does not weaken anti-corruption enforcement. On the contrary, it strengthens institutional legitimacy. Accountability achieved through unconstitutional means corrodes public confidence and undermines the rule of law.

The amended framework does not bar investigation; it insists upon lawful initiation. It does not exonerate misconduct; it prevents indiscriminate criminalisation. This balance reflects mature constitutional governance.

IX. Conclusion

The Prevention of Corruption (Amendment) Act, 2018 represents a legislative commitment to constitutional discipline in criminal investigation. Sections 17A and 19 must be understood as jurisdictional and curative safeguards governing all State action undertaken after their enactment. Their application does not offend Article 20(1); rather, it accords with the settled constitutional position that procedural law may operate retrospectively.

A constitutional democracy cannot compel its institutions to persist with acknowledged injustice in the name of temporal rigidity. Procedural fairness is not a concession—it is a constitutional command. Judicial interpretation must reflect this foundational principle if the anti-corruption regime is to remain both effective and legitimate.