Section 6-A (1) of the DSPE Act - Constitutional validity was challenged - Constitution Bench Declared as unconstitutional - Held that we hold that Section 6- A(1), which requires approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the PC Act, 1988 where such allegation relates to (a) the employees of the Central Government of the level of Joint Secretary and above and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, government companies, societies and local authorities owned or controlled by the Government, is invalid and violative of Article 14 of the Constitution. As a necessary corollary, the provision contained in Section 26 (c) of the Act 45 of 2003 to that extent
is also declared invalid.=
Section 6-A of the Delhi Special Police Establishment Act, 1946
(for short, ‘the DSPE Act’), which was inserted by Act 45 of 2003, reads as
under:
“Section 6-A. Approval of Central Government to conduct inquiry or
investigation.- (1) The Delhi Special Police Establishment shall not
conduct any inquiry or investigation into any offence alleged to have
been committed under the Prevention of Corruption Act, 1988 (49 of
1988) except with the previous approval of the Central Government
where such allegation relates to-
(a) the employees of the Central Government of the Level of
Joint Secretary and above; and
(b) such officers as are appointed by the Central Government in
corporations established by or under any Central Act, Government
companies, societies and local authorities owned or controlled
by that Government.
(2) Notwithstanding anything contained in sub-section (1), no such
approval shall be necessary for cases involving arrest of a person on
the spot on the charge of accepting or attempting to accept any
gratification other than legal remuneration referred to in clause (c)
of the Explanation to section 7 of the Prevention of Corruption Act,
1988 (49 of 1988).”=
In view of our foregoing discussion, we hold that Section 6-
A(1), which requires approval of the Central Government to conduct any
inquiry or investigation into any offence alleged to have been committed
under the PC Act, 1988 where such allegation relates to (a) the employees
of the Central Government of the level of Joint Secretary and above and (b)
such officers as are appointed by the Central Government in corporations
established by or under any Central Act, government companies, societies
and local authorities owned or controlled by the Government, is invalid and
violative of Article 14 of the Constitution. As a necessary corollary, the
provision contained in Section 26 (c) of the Act 45 of 2003 to that extent
is also declared invalid.
2014 ( May.Part)
http://judis.nic.in/supremecourt/filename=41503
R.M. LODHA, A.K. PATNAIK, SUDHANSU JYOTI MUKHOPADHAYA, DIPAK MISRA, FAKKIR MOHAMED IBRAHIM KALIFULLA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 38 OF 1997
Dr. Subramanian Swamy ……
Petitioner
Versus
Director, Central Bureau of Investigation & Anr. ……
Respondents
WITH
WRIT PETITION (CIVIL) NO. 21 OF 2004
Centre for Public Interest Litigation
…… Petitioner
Versus
Union of India …… Respondent
JUDGMENT
R.M. LODHA, CJI.
Section 6-A of the Delhi Special Police Establishment Act, 1946
(for short, ‘the DSPE Act’), which was inserted by Act 45 of 2003, reads as
under:
“Section 6-A. Approval of Central Government to conduct inquiry or
investigation.- (1) The Delhi Special Police Establishment shall not
conduct any inquiry or investigation into any offence alleged to have
been committed under the Prevention of Corruption Act, 1988 (49 of
1988) except with the previous approval of the Central Government
where such allegation relates to-
(a) the employees of the Central Government of the Level of
Joint Secretary and above; and
(b) such officers as are appointed by the Central Government in
corporations established by or under any Central Act, Government
companies, societies and local authorities owned or controlled
by that Government.
(2) Notwithstanding anything contained in sub-section (1), no such
approval shall be necessary for cases involving arrest of a person on
the spot on the charge of accepting or attempting to accept any
gratification other than legal remuneration referred to in clause (c)
of the Explanation to section 7 of the Prevention of Corruption Act,
1988 (49 of 1988).”
2. The constitutional validity of Section 6-A is in issue in these
two writ petitions, both filed under Article 32 of the Constitution. Since
Section 6-A came to be inserted by Section 26(c) of the Central Vigilance
Commission Act, 2003 (Act 45 of 2003), the constitutional validity of
Section 26(c) has also been raised. It is not necessary to independently
refer to Section 26(c). Our reference to Section 6-A of the DSPE Act,
wherever necessary, shall be treated as reference to Section 26(c) of the
Act 45 of 2003 as well.
Reference to the Constitution Bench
3. On February 4, 2005 when these petitions came up for
consideration, the Bench thought that these matters deserved to be heard by
the larger Bench. The full text of the reference order is as follows:
“In these petitions challenge is to the constitutional validity of
Section 6-A of the Delhi Special Police Establishment Act, 1946 (for
short, “the Act”). This section was inserted in the Act
w.e.f. 12-9-2003. It, inter alia, provides for obtaining
the previous approval of the Central Government for
conduct of any inquiry or investigation for any offence
alleged to have been committed under the Prevention of Corruption
Act, 1988 where allegations relate to officers of the level of Joint
Secretary and above. Before insertion of Section 6-A
in the Act, the requirement to obtain prior approval of the
Central Government was contained in a directive known as “Single
Directive” issued by the Government. The Single Directive was a
consolidated set of instructions issued to the Central Bureau of
Investigation (CBI) by various Ministries/Departments regarding
modalities of initiating an inquiry or registering a case
against certain categories of civil servants. The said directive was
stated to have been issued to protect decision-making-level officers
from the threat and ignominy of malicious and vexatious
inquiries/investigations and to give protection to officers at the
decision-making level and to relieve them of the anxiety from the
likelihood of harassment for taking honest decisions. It was
said that absence of such protection to them could adversely affect
the efficiency and efficacy of these institutions because of
the tendency of such officers to avoid taking any decisions
which could later lead to harassment by any malicious and
vexatious inquiries/investigations.
2. The Single Directive was quashed by this Court in a
judgment delivered on 18-12-1997 (Vineet Narain & Ors. v.
Union of India & Anr. (1998) 1 SCC 226). Within a few months
after Vineet Narain judgment, by the Central Vigilance Commission
Ordinance, 1998 dated 25-8-1998, Section 6-A was sought to be
inserted providing for the previous approval of the
Central Vigilance Commission before investigation of the
officers of the level of Joint Secretary and above. On
the intervention of this Court, this provision was deleted by issue of
another Ordinance promulgated on 27-10-1998. From the date of the
decision in Vineet Narain case and till insertion of Section 6-A
w.e.f. 12-9-2003, there was no requirement of seeking previous
approval except for a period of two months from 25-8-1998 to 27-10-
1998.
3. The validity of Section 6-A has been questioned on the
touchstone of Article 14 of the Constitution. Learned amicus curiae
has contended that the impugned provision is wholly subversive of
independent investigation of culpable bureaucrats and strikes at
the core of rule of law as explained in Vineet Narain case and the
principle of independent, unhampered, unbiased and
efficient investigation. The contention is that Vineet
Narain decision frames a structure by which honest officers
could fearlessly enforce the criminal law and detect corruption
uninfluenced by extraneous political, bureaucratic or other
influences and the result of the impugned legislation is
that the very group of persons, namely, high-ranking
bureaucrats whose misdeeds and illegalities may have to
be inquired into, would decide whether CBI should even start an
inquiry or investigation against them or not. There will be no
confidentiality and insulation of the investigating agency from
political and bureaucratic control and influence because the approval
is to be taken from the Central Government which would involve
leaks and disclosures at every stage. The very nexus of the
criminal-bureaucrat-politician which is subverting the whole polity
would be involved in granting or refusing prior
approval before an inquiry or investigation can take place. Pointing
out that the essence of a police investigation is skilful
inquiry and collection of material and evidence in a manner by
which the potential culpable individuals are not
forewarned, the submission made is that the prior sanction of the
same department would result in indirectly putting to notice the
officers to be investigated before commencement of
investigation. Learned Senior Counsel contends that it is wholly
irrational and arbitrary to protect highly-placed public
servants from inquiry or investigation in the light of
the conditions prevailing in the country and the corruption at high
places as reflected in several judgments of this Court including
that of Vineet Narain. Section 6-A of the Act is wholly
arbitrary and unreasonable and is liable to be struck
down being violative of Article 14 of the Constitution
is the submission of learned amicus curiae.
4. In support of the challenge to the constitutional
validity of the impugned provision, besides observations
made in the three-Judge Bench decision in Vineet Narain
case reliance has also been placed on various
decisions including S.G. Jaisinghani v. Union of India [(1967) 2
SCR 703], Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC 212],
Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722] and Mardia
Chemicals Ltd. v. Union of India [(2004) 4 SCC 311] to
emphasize that the absence of arbitrary power is the
first essential of the rule of law upon which our whole constitutional
system is based. In Mardia Chemicals case a three-Judge Bench held
Section 17(2) of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 to be
unreasonable and arbitrary and violative of Article 14 of the
Constitution. Section 17(2) provides for condition of
deposit of 75% of the amount before an appeal could
be entertained. The condition has been held to be
illusory and oppressive. Malpe Vishwanath Acharya v. State of
Maharashtra [(1998) 2 SCC 1], again a decision of a three-Judge
Bench, setting aside the decision of the High Court which
upheld the provisions of Sections 5(10)(b), 11(1) and
12(3) of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 pertaining to standard rent in
petitions where the constitutional validity of those provisions
was challenged on the ground of the same being
arbitrary, unreasonable and consequently ultra vires Article 14 of
the Constitution, has come to the conclusion that the said provisions
are arbitrary and unreasonable.
5. Learned Solicitor General, on the other hand, though very fairly
admitting that the nexus between criminals and some
elements of establishment including politicians and various
sections of bureaucracy has increased and also that there is a
disturbing increase in the level of corruption and
these problems need to be addressed, infractions of the law
need to be investigated, investigations have to be conducted
quickly and effectively without any interference and the
investigative agencies should be allowed to function
without any interference of any kind whatsoever and that
they have to be insulated from any extraneous
influences of any kind, contends that a legislation
cannot be struck down on the ground of arbitrariness
or unreasonableness as such a ground is available only
to quash executive action and orders. Further contention is that
even a delegated legislation cannot be quashed on the ground of mere
arbitrariness and even for quashing such a legislation, manifest
arbitrariness is the requirement of law. In support, reliance has
been placed on observations made in a three-Judge Bench
decision in State of A.P.. v. McDowell & Co. [(1996) 3 SCC 709]
that no enactment can be struck down by just saying that it is
arbitrary or unreasonable and observations made in Khoday
Distilleries Ltd. v. State of Karnataka [1996 (10) SCC
304] that delegated legislation can be struck down only if there is
manifest arbitrariness.
6. In short, the moot question is whether arbitrariness and
unreasonableness or manifest arbitrariness and unreasonableness,
being facets of Article 14 of the Constitution are
available or not as grounds to invalidate a legislation. Both counsel
have placed reliance on observations made in decisions rendered by a
Bench of three learned Judges.
7. Further contention of learned Solicitor General is that the
conclusion drawn in Vineet Narain case is erroneous that the
Constitution Bench decision in K. Veeraswami v. Union of India
[(1991) 3 SCC 655] is not an authority for the proposition that in the
case of high officials, requirement of prior
permission/sanction from a higher officer or Head of the
Department is permissible, the submission is that conclusion reached
in para 34 of Vineet Narain decision runs contrary to
observations and findings contained in para 28 of Veeraswami case.
8. Having regard to the aforesaid, we are of the view that the
matters deserve to be heard by a larger Bench, subject
to the orders of Hon'ble the Chief Justice of India.”
Background of Section 6-A
4. We may first notice the background in which Section 6-A was
inserted in the DSPE Act. In 1993, Vineet Narain approached this Court
under Article 32 of the Constitution of India complaining inertia by the
Central Bureau of Investigation (CBI) in matters where the accusation made
was against high dignitaries. The necessity of monitoring the investigation
by this Court is indicated in paragraph 1 of the judgment[1], which reads:
“These writ petitions under Article 32 of the Constitution of India
brought in public interest, to begin with, did not appear to have the
potential of escalating to the dimensions they reached or to give rise
to several issues of considerable significance to the implementation
of rule of law, which they have, during their progress. They began as
yet another complaint of inertia by the Central Bureau of
Investigation (CBI) in matters where the accusation made was against
high dignitaries. It was not the only matter of its kind during the
recent past. The primary question was: Whether it is within the domain
of judicial review and it could be an effective instrument for
activating the investigative process which is under the control of the
executive? The focus was on the question, whether any judicial remedy
is available in such a situation? However, as the case progressed, it
required innovation of a procedure within the constitutional scheme of
judicial review to permit intervention by the court to find a solution
to the problem. This case has helped to develop a procedure within the
discipline of law for the conduct of such a proceeding in similar
situations. It has also generated awareness of the need of probity in
public life and provided a mode of enforcement of accountability in
public life. Even though the matter was brought to the court by
certain individuals claiming to represent public interest, yet as the
case progressed, in keeping with the requirement of public interest,
the procedure devised was to appoint the petitioners’ counsel as the
amicus curiae and to make such orders from time to time as were
consistent with public interest. Intervention in the proceedings by
everyone else was shut out but permission was granted to all, who so
desired, to render such assistance as they could, and to provide the
relevant material available with them to the amicus curiae for being
placed before the court for its consideration. In short, the
proceedings in this matter have had great educative value and it does
appear that it has helped in future decision-making and functioning of
the public authorities.”
5. In Vineet Narain1, Single Directive No.4.7(3), which contained
certain instructions to CBI regarding modalities of initiating an inquiry
or registering a case against certain categories of civil servants, fell
for consideration. We shall refer to Single Directive No. 4.7(3) at some
length a little later but suffice to say here that this Court struck down
Single Directive No.4.7(3). While doing so, the Court also made certain
recommendations in respect of CBI and Central Vigilance Commission (CVC).
One of such recommendations was to confer statutory status to CVC.
6. Initially, the Government decided to put the proposed law in
place through an Ordinance so as to comply with the directions of this
Court in Vineet Narain1. Later on the Government introduced the CVC Bill,
1998 in the Lok Sabha on 7.12.1998. The CVC Bill, 1998 was referred to the
Department-related Parliamentary Standing Committee on Home Affairs for
examination and report, which presented its report to the Parliament on
25.2.1999 and made certain recommendations on the CVC Bill, 1998. The Lok
Sabha passed the CVC Bill, 1998 as the CVC Bill, 1999 on 15.3.1999 after
adopting the official amendments moved in this regard. However, before the
Bill could be considered and passed by the Rajya Sabha, the 12th Lok Sabha
was dissolved on 26.4.1999 and, consequently, the CVC Bill, 1999 lapsed.
The CVC Bill was re-introduced with the title “The Central Vigilance
Commission Bill, 2003”. The Bill was passed by both the Houses of
Parliament and received the assent of the President on 11.9.2003. This is
how the Central Vigilance Commission Act, 2003 (for short, ‘Act 45 of
2003’) came to be enacted.
7. Act 45 of 2003 provides for the constitution of a Central
Vigilance Commission to inquire or cause inquiries to be conducted into
offences alleged to have been committed under the Prevention of Corruption
Act, 1988 (for short, ‘PC Act, 1988’) by certain categories of public
servants of the Central Government, corporations established by or under
any Central Act, government companies, societies and local authorities
owned or controlled by the Central Government and for matters connected
therewith or incidental thereto. Section 26 of the Act 45 of 2003 provides
for amendment of DSPE Act and clause (c) thereof enacts that after Section
6, Section 6-A shall be inserted in the DSPE Act.
8. Section 6-A(1) of the DSPE Act requires approval of the Central
Government to conduct inquiry or investigation where the allegations of
commission of an offence under the PC Act, 1988 relate to the employees of
the Central Government of the level of Joint Secretary and above.
Genesis of Challenge to Section 6-A
9. On 24.2.1997, the Writ Petition (Civil) No.38/1997 came up for
admission before a three-Judge Bench. On hearing the petitioner, the writ
petition was entertained but it was confined to relief in paragraph 12(a)
only. The notice was directed to be issued to respondent No.1 (Director,
CBI) and respondent No.5 (Union of India through Cabinet Secretary) and
other respondents were deleted from the array of parties. The Court on that
date requested Shri Anil B. Divan, learned senior counsel to appear as
amicus curiae in the case. It is not necessary to narrate the proceedings
which took place on various dates. It may, however, be mentioned that on
5.4.2002 when the matter was mentioned before the Bench, learned amicus
curiae expressed his concern regarding the attempt to restore the Single
Directive, which was struck down in Vineet Narain1, in the proposed
legislation. Thereupon, the matter was adjourned and Court requested the
presence of learned Attorney General on 19.4.2002. On 19.4.2002, the matter
was ordered to be listed in September, 2002. As noted above, on 11.9.2003,
Act 45 of 2003 received Presidential assent and Section 6-A was inserted in
the DSPE Act.
10. On 19.1.2004, Writ Petition (C) No.21/2004 was ordered to be
listed along with Writ Petition (C) No.38/1997. On 23.1.2004, notice was
issued in Writ Petition (C) No. 21/2004. In this writ petition, the
counter was filed by the Union on 7.4.2004 and rejoinder affidavit was
filed by the petitioner.
11. We have heard Mr. Anil B. Divan, learned senior counsel and
amicus curiae in Writ Petition (C) No.38/1997 and Mr. Prashant Bhushan,
learned counsel for the petitioner in Writ Petition (C) No.21/2004. In one
matter, Mr. L. Nageswara Rao, learned Additional Solicitor General appeared
for Union of India while in the other, Mr. K.V. Viswanathan, learned
Additional Solicitor General appeared on behalf of Union of India. We have
heard both of them on behalf of the Union of India. We have also heard Mr.
Gopal Sankaranarayanan, learned counsel for the intervenor.
Submissions of Mr. Anil B. Divan
12. Mr. Anil B. Divan, learned amicus curiae argues that Section 6-
A is an impediment to the rule of law and violative of Article 14, which
is part of the rule of law; that the impugned provision creates a
privileged class and thereby subverts the normal investigative process and
violates the fundamental right(s) under Article 14 of every citizen. He
submits that if the impugned provision is replicated at the State level and
provision of ‘previous approval’ by respective State Governments is
required, then the rule of law would completely collapse in the whole of
India and no high level corruption would be investigated or punished. He
relies upon decision of this Court in Vineet Narain1. He also relies upon
the decision in I.R. Coelho[2] in support of the proposition that Article
14 is a part of the rule of law and it is the duty of the judiciary to
enforce the rule of law.
13. According to learned amicus curiae, Section 6-A directly
presents an illegal impediment to the insulation of CBI and undermines the
independence of CBI to hold a preliminary enquiry (PE) or investigation.
Citing the judgments of this Court in Centre for Public Interest Litigation
(2G Spectrum case)[3] and Manohar Lal Sharma[4] following Vineet Narain1,
learned amicus curiae submits that trend of these judgments is to preserve
the rule of law by insulating the CBI from executive influence which could
derail and result in inaction in enforcing the criminal law against high
level corruption. Learned amicus curiae highlighted that there was no
requirement of previous approval as contained in the impugned provisions
between 18.12.1997 (the date of Vineet Narain1 judgment striking down the
Single Directive) and 11.9.2003 (when CVC Act came into force) except the
period between 25.8.1998 and 27.10.1998 when the CVC Ordinance, 1998 was in
force and till the deletions by CVC Amendment Ordinance, 1998. He referred
to N.N. Vohra Committee report which paints a frightening picture of
criminal-bureaucratic-political nexus – a network of high level corruption
– and submitted that the impugned provision puts this nexus in a position
to block inquiry and investigation by CBI by conferring the power of
previous approval on the Central Government.
14. Mr. Anil B. Divan, learned amicus curiae wants us to take
judicial notice of the fact that high level bureaucratic corruption goes
hand in hand, on many occasions, with political corruption at the highest
level. This very group of high ranking bureaucrats, whose misconduct and
criminality, if any, requires to be first inquired into and thereafter
investigated, can thwart, defeat and impair this exercise. In substance,
the potential accused would decide whether or not their conduct should be
inquired into. He argues that the essence of skillful and effective police
investigation is by collection of evidence and material secretly, without
leakage so that the potential accused is not forewarned leading to
destruction or tempering of evidence and witnesses. Such investigation is
compromised by the impugned provision, viz., Section 6-A of the DSPE Act.
The requirement of previous approval in the impugned provision would mean
leakages as well as breach of confidentiality and would be wholly
destructive of an efficient investigation. The provision, such as Section 6-
A, offers an impregnable shield (except when there is a court monitored
investigation) to the criminal-bureaucratic-political nexus. If the CBI is
not even allowed to verify complaints by preliminary enquiry, how can the
case move forward? In such a situation, the very commencement of enquiry /
investigation is thwarted and delayed. Moreover, a preliminary enquiry is
intended to ascertain whether a prima facie case for investigation is made
out or not. If CBI is prevented from holding a preliminary enquiry, it will
not be able to even gather relevant material for the purpose of obtaining
previous approval.
15. Learned amicus curiae submits that for judging the validity of
classification or reasonableness or arbitrariness of State action, the
Court is entitled to take notice of conditions prevailing from time to
time. He referred to certain portions of the N.N. Vohra Committee report,
2G Spectrum case3 and the facts of a case before Delhi High Court entitled
‘Telecom Watchdog’[5] and the case of M. Gopalakrishnan, Chairman and
Managing Director (CMD of Indian Bank). Learned amicus curiae also relied
upon decisions of this Court in V.G. Row[6] and D.S. Nakara[7].
16. It is submitted by the learned amicus curiae that pervasive
corruption adversely affects welfare and other activities and expenditures
of the state. Consequently, the rights of Indian citizens not only under
Article 14 but also under Article 21 are violated. In this regard, he has
relied upon the observations made by this Court in Vineet Narain1, Ram
Singh[8], Subramanian Swamy[9], R.A. Mehta[10], Balakrishna Dattatrya
Kumbhar[11] and In re. Special Courts Bill, 1978[12].
17. Learned amicus curiae submits that Section 6-A confers on the
Central Government unguided, unfettered and unbridled power and the
provision is manifestly arbitrary, entirely perverse and patently
unreasonable. He relies upon the decisions of this Court in Travancore
Chemicals and Manufacturing Co.[13], Krishna Mohan (P) Ltd.[14], Canara
Bank[15] and Nergesh Meerza[16].
18. It is vehemently contended by the learned amicus curiae that
the classification as contained in Section 6-A creating a privileged class
of the government officers of the level of Joint Secretary and above level
and certain officials in public sector undertakings, etc. is directly
destructive and runs counter to the whole object and reason of the PC Act,
1988 read with the DSPE Act and undermines the object of detecting and
punishing high level corruption. In this regard, learned amicus curiae
referred to protection given to Government officials under Section 197 of
the Code of Criminal Procedure (Cr.P.C.) and under Section 19 of the PC
Act, 1988. He argues that the well-settled two tests: (i) that
classification must be founded on intelligible differentia and (ii) that
differentia must have a rational relation with the object sought to be
achieved by the legislation, are not satisfied by Section 6-A. A
privileged class of Central Government employees has been created inasmuch
as the protection offered to the category of the government officers of the
level of Joint Secretary and above regarding previous approval does not
extend to: (a) official / employees who are not employees of the Central
Government, (b) employees of the Central Government below Joint Secretary
level, (c) employees of Joint Secretary level and above in the states, (d)
enquiry and investigation of offences which are not covered by the PC Act,
1988, and (e) other individuals including ministers, legislators and
private sector employees. Learned amicus curiae relies upon the decision of
this Court in Vithal Rao[17].
Submissions of Mr. Prashant Bhushan for Centre for Public Interest
Litigation (CPIL-petitioner)
19. Mr. Prashant Bhushan, learned counsel for the petitioner in the
connected writ petition filed by Centre for Public Interest Litigation
(CPIL) has adopted the arguments of the learned amicus curiae. He submits
that Section 6-A makes criminal investigation against a certain class of
public servants unworkable and it completely militates against the rule of
law. He referred to the United Nations document entitled “United Nations
Convention Against Corruption” and submitted that Section 6-A of the DSPE
Act interdicts enquiry or investigation in respect of certain class of
officers and puts direct hindrance in combating corruption and, therefore,
the provision is violative of Article 14 of the Constitution.
Submissions of Mr. Gopal Sankaranarayanan (intervenor)
20. Mr. Gopal Sankaranarayanan, appearing on behalf of intervenor
submits that Section 6-A of the DSPE Act breaches the basic feature of rule
of law. He argues that the basic structure test can be applied to the
statutes as well. By enactment of Section 6-A, the rule of law has suffered
a two-fold violation: (i) resurrection of the single directive in the form
of legislation without in any way removing the basis of the Vineet Narain1
judgment, and (ii) impediment of the due process (criminal investigation)
by imposing a condition at the threshold. In this regard, he has relied
upon decisions of this Court in State of Karnataka[18], L. Chandra
Kumar[19], Kuldip Nayar[20], Madras Bar Association[21], K.T. Plantation
(P) Ltd.[22], G.C. Kanungo[23], Indra Sawhney (2)[24], and I.R. Coelho2.
21. Mr. Gopal Sankaranarayanan, learned counsel for the intervenor,
also submits that there is an unreasonable classification among policemen
and among the accused and, in any case, the classification even if valid
has no nexus with the object sought to be achieved by Section 6-A, which is
apparently to protect the officers concerned. According to learned counsel,
Section 6-A is also inconsistent with the Cr.P.C. In this regard, he refers
to CBI Manual, Sections 19 and 22 of the PC Act, 1988 and Section 197 of
Cr.P.C.
Submissions of Mr. L. Nageswara Rao, ASG.
22. Mr. L. Nageswara Rao, learned Additional Solicitor General
stoutly defends Section 6-A. He submits that the rationale behind Section 6-
A of the DSPE Act can be seen in the reply to the debate in Parliament on
the Central Vigilance Commission Bill by the then Union Minister of Law and
Justice, Mr. Arun Jaitley. The provision is defended on the ground that
those who are in decision making positions, those who have to exercise
discretion and those who have to take vital decisions could become target
of frivolous complaints and need to be protected. Therefore, some screening
mechanism must be put into place whereby serious complaints would be
investigated and frivolous complaints can be thrown out. If such protection
is not given to senior decision makers, anyone can file a complaint and the
CBI or the police can raid the houses of such senior officers. This may
affect governance inasmuch as instead of tendering honest advice to
political executives, the senior officers at the decision-making level
would only give safe and non-committal advice. He argues that the object of
Section 6-A is to provide screening mechanism to filter out frivolous or
motivated investigation that could be initiated against senior officers to
protect them from harassment and to enable them to take decision without
fear. In this regard, the legal principles enunciated in K. Veeraswami[25]
were strongly pressed into service by Mr. L. Nageswara Rao.
23. It is argued by the learned Additional Solicitor General that
Section 6-A is not an absolute bar because it does not prohibit
investigation against senior government servants as such. It only provides
a filter or pre-check so that the Government can ensure that senior
officers at decision-making level are not subjected to unwarranted
harassment.
24. Emphasizing that the Central Government is committed to weeding
out vice of corruption, learned Additional Solicitor General submits that
requests for approval under Section 6-A are processed expeditiously after
the Government of India had constituted a Group of Ministers to consider
certain measures that could be taken by Government to tackle corruption and
the Group of Ministers suggested the measures to ensure that the requests
received from CBI under Section 6-A are examined on priority and with
objectivity.
25. Mr. L. Nageswara Rao, learned Additional Solicitor General
submits that arbitrariness and unreasonableness cannot by themselves be a
ground to strike down legislation. With reference to the decision of this
Court in E.P. Royappa[26] he argues that while proposing a new dimension of
arbitrariness as an anti-thesis to equality in Article 14, the Court used
arbitrariness to strike down administrative action and not as a ground to
test legislations. He submits that in Maneka Gandhi[27] the Court has not
held that arbitrariness by itself is a ground for striking down
legislations under Article 14. Ajay Hasia[28], learned Additional Solicitor
General contends, also does not make arbitrariness a ground to strike down
legislation. Distinguishing Malpe Vishwanath Acharya[29], he submits that
this Court used the classification test to hold legislation to be arbitrary
and the provision of standard rent in Bombay Rent Control Act was struck
down as having become unreasonable due to passage of time. Learned
Additional Solicitor General also distinguished Mardia Chemicals Ltd[30].
He vehemently contends that Courts cannot strike down legislations for
being arbitrary and unreasonable so as to substitute their own wisdom for
that of the legislature.
26. Mr. L. Nageswara Rao submits that wisdom of legislature cannot
be gone into for testing validity of a legislation and, apart from
constitutional limitations, no law can be struck down on the ground that it
is unreasonable or unjust. In this regard, he relies upon Kesavananda
Bharati[31]. He also referred to In re. Special Courts Bill, 197812, which
explained the principles enshrined in Article 14. In support of principle
that legislations can be declared invalid or unconstitutional only on two
grounds: (a) lack of legislative competence, and (b) violation of any
fundamental rights or any provision of the Constitution, learned Additional
Solicitor General relies upon Kuldip Nayar20. He also relies upon Ashoka
Kumar Thakur[32] in support of the proposition that legislation cannot be
challenged simply on the ground of unreasonableness as that by itself does
not constitute a ground. He submits that a Constitution Bench in K.T.
Plantation (P) Ltd.22 has held that plea of unreasonableness,
arbitrariness, proportionality, etc., always raises an element of
subjectivity on which Court cannot strike down a statute or a statutory
provision. Unless a constitutional infirmity is pointed out, a legislation
cannot be struck down by just using the word ‘arbitrary’. In this regard,
he heavily relies upon the decisions of this Court in In re. Natural
Resources Allocation[33], McDowell[34] and Rakesh Kohli[35]. The decision
of the US Supreme Court in Heller[36] is also cited by the learned
Additional Solicitor General in support of the proposition that Court
should not sit as super legislature over the wisdom or desirability of
legislative policy.
27. Mr. L. Nageswara Rao, learned Additional Solicitor General
argues that rule of law cannot be a ground for invalidating legislations
without reference to the Constitution. He submits that rule of law is not
a concept above the Constitution. Relying upon Indira Nehru Gandhi[37],
learned Additional Solicitor General argues that meaning and constituent
elements of rule of law must be gathered from the enacting provisions of
the Constitution; vesting discretionary powers in the Government is not
contrary to the rule of law. Moreover, he submits that exceptions to the
procedure in Cr.P.C. cannot be violative of Articles 14 and 21 and such
exceptions cannot be termed as violating the rule of law. In this regard,
learned Additional Solicitor General refers to Section 197 of Cr.P.C. and
relies upon Matajog Dobey[38], wherein this Court upheld constitutional
validity of Section 197 and held that the said provision was not violative
of Article 14. He also referred to Section 187 of Cr.P.C., Section 6 of
the Armed Forces (Special Provisions) Act, 1958 and Section 187-A of the
Sea Customs Act and submitted that these provisions have been held to be
constitutionally valid by this Court. Naga People’s Movement of Human
Rights[39] was cited by learned Additional Solicitor General wherein
Section 6 of the Armed Forces (Special Provisions) Act, 1958 was held
constitutional and Manhar Lal Bhogilal[40] was cited wherein Section 187-A
of the Sea Customs Act was held valid. Learned Additional Solicitor
General has also referred to Section 42 of the Food Safety and Standards
Act, 2006, Section 50 of the Prevention of Terrorism Act, 2002, Section 12
of the Suppression of Unlawful Acts Against Safety Of Maritime Navigation
And Fixed Platforms On Continental Shelf Act, 2002, Section 23 of the
Maharashtra Control of Organised Crime Act, 1999, Section 45 of the
Unlawful Activities (Prevention) Act, 1967, Section 20-A of the Terrorist
and Disruptive Activities (Prevention) Act, 1987, Section 137 of the
Customs Act, 1962, Section 11 of the Central Sales Tax Act, 1956, Section 7
of the Explosive Substances Act, 1908, Section 20 of the Prevention of Food
Adulteration Act, 1954, Section 23 of Lokpal and Lokayuktas Act, 2013,
Section 11 of Cotton Ginning and Pressing Factories Act, 1925, Section 12
of Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, Section 16 of
Gujarat Electricity Supply Undertakings (Acquisition) Act, 1969, Section 24
of Karnataka Control of Organized Crimes Act, 2000 and Section 9 of Bihar
Non-Government Educational Institution (Taking Over) Act, 1988 to
demonstrate that there are large number of provisions where permission of
the Government is required before taking cognizance or for institution of
an offence.
28. Learned Additional Solicitor General submits that Section 6-A
satisfies the test of reasonable classification. The public servants of
the level of Joint Secretary and above take policy decisions and,
therefore, there is an intelligible differentia. As they take policy
decisions, there is a need to protect them from frivolous inquiries and
investigation so that policy making does not suffer. Thus, there is
rational nexus with the object sought to be achieved. In this regard,
learned Additional Solicitor General has relied upon the decisions of this
Court in Ram Krishna Dalmia[41], Union of India[42] and Re: Special Courts
Bill, 197812. He also referred to the proceedings of the Joint
Parliamentary Committee, Law Minister’s Speech, the Government of India
(Transaction of Business) Rules and the Central Secretariat Manual of
Procedure.
29. Mr. L. Nageswara Rao submits that conferment of unbridled / un-
canalized power on the executive cannot be a ground for striking down
legislation as being violative of Article 14. Mere possibility of abuse of
power cannot invalidate a law. He cited the judgments of this Court in Re
Special Courts Bill, 197812, N.B. Khare[43], Mafatlal Industries[44] and
Sushil Kumar Sharma[45].
30. Learned Additional Solicitor General submits that conferment of
power on high authority reduces the possibility of its abuse to minimum.
In support of this submission, learned Additional Solicitor General relies
upon the decision of this Court in Maneka Gandhi27, Matajog Dubey38, V.C.
Shukla[46] and V.C.Shukla (IInd)[47]. He also submits that absence of
guidelines can only make the exercise of power susceptible to challenge and
not the legislation. In this regard, Pannalal Binjraj[48] and Jyoti
Pershad[49] are cited by him.
Submissions of Mr. K.V. Viswanathan, ASG
31. Mr. K.V. Viswanathan, learned Additional Solicitor General
submits that there is presumption of constitutionality and mutual respect
inherent in doctrine of separation of powers. He relies upon Bihar
Distillery Ltd.[50].
32. Mr. K.V. Viswanathan, learned Additional Solicitor General
referred to Sections 7, 11 and 13 of the PC Act, 1988 in order to show that
all these provisions relate to discharge of official functions. The
officers above the Joint Secretary level are bestowed with crucial decision
making responsibilities. Citing Kripalu Shankar[51] and the speech of the
then Minister of Law and Justice, he submits that people in decision making
process need to be given an environment to take decisions without any undue
extraneous pressure. He relies upon P. Sirajuddin[52] to highlight the
observations of this Court that lodging of FIR against a government
official especially, one who occupies top position in a department, even if
baseless, would do incalculable harm not only to the officer in particular,
but to the department he belongs to, in general.
33. Mr. K.V. Viswanathan has highlighted that corruption has two
aspects: (a) aspect related to decision making – abuse of position,
pecuniary loss to the Government etc. and (b) aspect of illegal pecuniary
gain – bribery etc. That abuse of position in order to come within the
mischief of corruption must necessarily be dishonest so that it may be
proved that the officer caused deliberate loss to the department. Mere
violation of codal provisions, or ordinary norms of procedural behaviour
does not amount to corruption. He cites decisions of this Court in S.P.
Bhatnagar[53], Major S. K. Kale[54], C. Chenga Reddy[55] and Abdulla
Mohammed Pagarkar[56].
34. Learned Additional Solicitor General submits that the State is
the first victim of corruption and the executive is in the best position to
adjudge whether it has been a victim of corruption. Section 6-A has been
enacted to protect the decision making process of the executive from undue
harassment and exercise of police powers by CBI. He cites the judgment of
this Court in A.R. Antulay[57].
35. Mr. K.V. Viswanathan has referred to other provisions under law
providing for the aggrieved authority to take a decision whether the
offence has been made out or not. In this regard, he has invited our
attention to Section 195 of Cr.P.C. and the decision of this Court in Patel
Laljibhai Somabhai[58]. He also referred to Section 340 of Cr.P.C. which
allows the court to adjudge whether perjury was committed, and if it was,
then whether it required prosecution. He relies upon the decision of this
Court in Iqbal Singh Marwah[59].
36. Citing Manohar Lal Sharma4, learned Additional Solicitor
General submits that even in a court monitored investigation, the concerned
officer could approach the concerned court for an opportunity to be heard.
Moreover, in Manohar Lal Sharma4, this court has noticed the office
memorandum dated 26.09.2011 approving the recommendations made by the Group
of Ministers which provides inter alia for the concerned authority to give
reasons for granting/rejecting sanction under Section 6-A. He submits that
when there is denial of sanction order under Section 6-A, such order of the
Central Government could be challenged in a writ petition before a High
Court. He says that United Nations recognizes such a protection as Section
6-A in Article 30 of the UN Convention against corruption.
Principles applicable to Article 14
37. Article 14 reads:
“14. Equality before law.—The State shall not deny to any person
equality before the law or the equal protection of the laws
within the territory of India.”
38. The first part of Article 14, which was adopted from the Irish
Constitution, is a declaration of equality of the civil rights of all
persons within the territories of India. It enshrines a basic principle of
republicanism. The second part, which is a corollary of the first and is
based on the last clause of the first section of the Fourteenth Amendment
of the American Constitution, enjoins that equal protection shall be
secured to all such persons in the enjoyment of their rights and liberties
without discrimination of favouritism. It is a pledge of the protection of
equal laws, that is, laws that operate alike on all persons under like
circumstances12.
39. Article 14 of the Constitution incorporates concept of equality
and equal protection of laws. The provisions of Article 14 have engaged
the attention of this Court from time to time. The plethora of cases
dealing with Article 14 has culled out principles applicable to aspects
which commonly arise under this Article. Among those, may be mentioned,
the decisions of this Court in Chiranjit Lal Chowdhuri[60], F.N.
Balsara[61], Anwar Ali Sarkar[62], Kathi Raning Rawat[63], Lachmandas
Kewalram Ahuja[64], Syed Qasim Razvi[65], Habeeb Mohamed[66], Kedar Nath
Bajoria[67] and innovated to even associate the members of this Court to
contribute their V.M. Syed Mohammad & Company[68]. The most of the above
decisions were considered in Budhan Choudhry[69]. This Court exposited
the ambit and scope of Article 14 in Budhan Choudhry69 as follows:
“It is now well-established that while article 14 forbids class
legislation, it does not forbid reasonable classification for the
purposes of legislation. In order, however, to pass the test of
permissible classification two conditions must be fulfilled, namely,
(i) that the classification must be founded on an intelligible
differentia which distinguishes persons or things that are grouped
together from others left out of the group, and (ii) that differentia
must have a rational relation to the object sought to be achieved by
the statute in question. The classification may be founded on
different bases; namely, geographical, or according to objects or
occupations or the like. What is necessary is that there must be a
nexus between the basis of classification and the object of the Act
under consideration. It is also well-established by the decisions of
this Court that article 14 condemns discrimination not only by a
substantive law but also by a law of procedure.”
40. In Ram Krishna Dalmia41, the Constitution Bench of five Judges
further culled out the following principles enunciated in the above cases -
“(a) that a law may be constitutional even though it relates to a
single individual if, on account of some special circumstances or
reasons applicable to him and not applicable to others, that single
individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the
constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of the
constitutional principles;
(c) that it must be presumed that the legislature understands and
correctly appreciates the need of its own people, that its laws are
directed to problems made manifest by experience and that its
discriminations are based on adequate grounds;
(d) that the legislature is free to recognise degrees of harm and
may confine its restrictions to those cases where the need is deemed
to be the clearest;
(e) that in order to sustain the presumption of constitutionality
the court may take into consideration matters of common knowledge,
matters of common report, the history of the times and may assume
every state of facts which can be conceived existing at the time of
legislation; and
(f) that while good faith and knowledge of the existing conditions
on the part of a legislature are to be presumed, if there is nothing
on the face of the law or the surrounding circumstances brought to the
notice of the court on which the classification may reasonably be
regarded as based, the presumption of constitutionality cannot be
carried to the extent of always holding that there must be some
undisclosed and unknown reasons for subjecting certain individuals or
corporations to hostile or discriminating legislation.”
41. In Ram Krishna Dalmia41, it was emphasized that the above
principles will have to be constantly borne in mind by the court when it is
called upon to adjudge the constitutionality of any particular law attacked
as discriminatory and violative of the equal protection of laws.
42. Having culled out the above principles, the Constitution Bench
in Ram Krishna Dalmia41, further observed that statute which may come up
for consideration on the question of its validity under Article 14 of the
Constitution may be placed in one or other of the following five classes:
“(i) A statute may itself indicate the persons or things to whom its
provisions are intended to apply and the basis of the classification
of such persons or things may appear on the face of the statute or may
be gathered from the surrounding circumstances known to or brought to
the notice of the court. In determining the validity or otherwise of
such a statute the court has to examine whether such classification is
or can be reasonably regarded as based upon some differentia which
distinguishes such persons or things grouped together from those left
out of the group and whether such differentia has a reasonable
relation to the object sought to be achieved by the statute, no matter
whether the provisions of the statute are intended to apply only to a
particular person or thing or only to a certain class of persons or
things. Where the court finds that the classification satisfies the
tests, the court will uphold the validity of the law.
(ii) A statute may direct its provisions against one individual
person or thing or to several individual persons or things but no
reasonable basis of classification may appear on the face of it or be
deducible from the surrounding circumstances, or matters of common
knowledge. In such a case the court will strike down the law as an
instance of naked discrimination.
(iii) A statute may not make any classification of the persons
or things for the purpose of applying its provisions but may leave it
to the discretion of the Government to select and classify persons or
things to whom its provisions are to apply. In determining the
question of the validity or otherwise of such a statute the court will
not strike down the law out of hand only because no classification
appears on its face or because a discretion is given to the Government
to make the selection or classification but will go on to examine and
ascertain if the statute has laid down any principle or policy for the
guidance of the exercise of discretion by the Government in the matter
of the selection or classification. After such scrutiny the court will
strike down the statute if it does not lay down any principle or
policy for guiding the exercise of discretion by the Government in the
matter of selection or classification, on the ground that the statute
provides for the delegation of arbitrary and uncontrolled power to the
Government so as to enable it to discriminate between persons or
things similarly situate and that, therefore, the discrimination is
inherent in the statute itself. In such a case the court will strike
down both the law as well as the executive action taken under such
law.
(iv) A statute may not make a classification of the persons or things
for the purpose of applying its provisions and may leave it to the
discretion of the Government to select and classify the persons or
things to whom its provisions are to apply but may at the same time
lay down a policy or principle for the guidance of the exercise of
discretion by the Government in the matter of such selection or
classification.
(v) A statute may not make a classification of the persons or things
to whom their provisions are intended to apply and leave it to the
discretion of the Government to select or classify the persons or
things for applying those provisions according to the policy or the
principle laid down by the statute itself for guidance of the exercise
of discretion by the Government in the matter of such selection or
classification. If the Government in making the selection or
classification does not proceed on or follow such policy or principle,
then in such a case the executive action but not the statute should be
condemned as unconstitutional.”
43. In Vithal Rao17, the five-Judge Constitution Bench had an
occasion to consider the test of reasonableness under Article 14 of the
Constitution. It noted that the State can make a reasonable classification
for the purpose of legislation and that the classification in order to be
reasonable must satisfy two tests: (i) the classification must be founded
on intelligible differentia and (ii) the differentia must have a rational
relation with the object sought to be achieved by the legislation in
question. The Court emphasized that in this regard object itself should be
lawful and it cannot be discriminatory. If the object is to discriminate
against one section of the minority, the discrimination cannot be justified
on the ground that there is a reasonable classification because it has
rational relation to the object sought to be achieved.
44. The constitutionality of Special Courts Bill, 1978 came up for
consideration in re. Special Courts Bill, 197812 as the President of India
made a reference to this Court under Article 143(1) of the Constitution for
consideration of the question whether the “Special Courts Bill” or any of
its provisions, if enacted would be constitutionally invalid. The seven
Judge Constitution Bench dealt with the scope of Article 14 of the
Constitution. Noticing the earlier decisions of this Court in Budhan
Choudhry69, Ram Krishna Dalmia41, C.I. Emden[70], Kangsari Haldar[71],
Jyoti Pershad49 and Ambica Mills Ltd.[72], in the majority judgment the
then Chief Justice Y.V. Chandrachud, inter alia, exposited the following
propositions relating to Article 14:
“(1) xxx xxx xxx
(2) The State, in the exercise of its governmental power, has of
necessity to make laws operating differently on different groups or
classes of persons within its territory to attain particular ends in
giving effect to its policies, and it must possess for that purpose
large powers of distinguishing and classifying persons or things to be
subjected to such laws.
(3) The constitutional command to the State to afford equal protection
of its laws sets a goal not attainable by the invention and
application of a precise formula. Therefore, classification need not
be constituted by an exact or scientific exclusion or inclusion of
persons or things. The courts should not insist on delusive exactness
or apply doctrinaire tests for determining the validity of
classification in any given case. Classification is justified if it is
not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is not that
the same rules of law should be applicable to all persons within the
Indian territory or that the same remedies should be made available to
them irrespective of differences of circumstances. It only means that
all persons similarly circumstanced shall be treated alike both in
privileges conferred and liabilities imposed. Equal laws would have to
be applied to all in the same situation, and there should be no
discrimination between one person and another if as regards the
subject-matter of the legislation their position is substantially the
same.
(5) By the process of classification, the State has the power of
determining who should be regarded as a class for purposes of
legislation and in relation to a law enacted on a particular subject.
This power, no doubt, in some degree is likely to produce some
inequality; but if a law deals with the liberties of a number of well-
defined classes, it is not open to the charge of denial of equal
protection on the ground that it has no application to other persons.
Classification thus means segregation in classes which have a
systematic relation, usually found in common properties and
characteristics. It postulates a rational basis and does not mean
herding together of certain persons and classes arbitrarily.
(6) The law can make and set apart the classes according to the needs
and exigencies of the society and as suggested by experience. It can
recognise even degree of evil, but the classification should never be
arbitrary, artificial or evasive.
(7) The classification must not be arbitrary but must be rational,
that is to say, it must not only be based on some qualities or
characteristics which are to be found in all the persons grouped
together and not in others who are left out but those qualities or
characteristics must have a reasonable relation to the object of the
legislation. In order to pass the test, two conditions must be
fulfilled, namely, (1) that the classification must be founded on an
intelligible differentia which distinguishes those that are grouped
together from others and (2) that that differentia must have a
rational relation to the object sought to be achieved by the Act.
(8) The differentia which is the basis of the classification and the
object of the Act are distinct things and what is necessary is that
there must be a nexus between them. In short, while Article 14 forbids
class discrimination by conferring privileges or imposing liabilities
upon persons arbitrarily selected out of a large number of other
persons similarly situated in relation to the privileges sought to be
conferred or the liabilities proposed to be imposed, it does not
forbid classification for the purpose of legislation, provided such
classification is not arbitrary in the sense above mentioned.
(9) If the legislative policy is clear and definite and as an
effective method of carrying out that policy a discretion is vested by
the statute upon a body of administrators or officers to make
selective application of the law to certain classes or groups of
persons, the statute itself cannot be condemned as a piece of
discriminatory legislation. In such cases, the power given to the
executive body would import a duty on it to classify the subject-
matter of legislation in accordance with the objective indicated in
the statute. If the administrative body proceeds to classify persons
or things on a basis which has no rational relation to the objective
of the Legislature, its action can be annulled as offending against
the equal protection clause. On the other hand, if the statute itself
does not disclose a definite policy or objective and it confers
authority on another to make selection at its pleasure, the statute
would be held on the face of it to be discriminatory, irrespective of
the way in which it is applied.
(10) Whether a law conferring discretionary powers on an
administrative authority is constitutionally valid or not should not
be determined on the assumption that such authority will act in an
arbitrary manner in exercising the discretion committed to it. Abuse
of power given by law does occur; but the validity of the law cannot
be contested because of such an apprehension. Discretionary power is
not necessarily a discriminatory power.
(11) Classification necessarily implies the making of a distinction or
discrimination between persons classified and those who are not
members of that class. It is the essence of a classification that upon
the class are cast duties and burdens different from those resting
upon the general public. Indeed, the very idea of classification is
that of inequality, so that it goes without saying that the mere fact
of inequality in no manner determines the matter of constitutionality.
(12) Whether an enactment providing for special procedure for the
trial of certain offences is or is not discriminatory and violative of
Article 14 must be determined in each case as it arises, for, no
general rule applicable to all cases can safely be laid down. A
practical assessment of the operation of the law in the particular
circumstances is necessary.
(13) A rule of procedure laid down by law comes as much within the
purview of Article 14 as any rule of substantive law and it is
necessary that all litigants, who are similarly situated, are able to
avail themselves of the same procedural rights for relief and for
defence with like protection and without discrimination.”
45. In Nergesh Meerza16, the three-Judge Bench of this Court while
dealing with constitutional validity of Regulation 46(i)(c) of Air India
Employees’ Service Regulations (referred to as ‘A.I. Regulations’) held
that certain conditions mentioned in the Regulations may not be violative
of Article 14 on the ground of discrimination but if it is proved that the
conditions laid down are entirely unreasonable and absolutely arbitrary,
then the provisions will have to be struck down. With regard to due
process clause in the American Constitution and Article 14 of our
Constitution, this Court referred to Anwar Ali Sarkar62, and observed that
the due process clause in the American Constitution could not apply to our
Constitution. The Court also referred to A.S. Krishna[73] wherein
Venkatarama Ayyar, J. observed: “The law would thus appear to be based on
the due process clause, and it is extremely doubtful whether it can have
application under our Constitution.”
46. In D.S. Nakara7, the Constitution Bench of this Court had an
occasion to consider the scope, content and meaning of Article 14. The
Court referred to earlier decisions of this Court and in para 15 (pages 317-
318), the Court observed:
“Thus the fundamental principle is that Article 14 forbids class
legislation but permits reasonable classification for the purpose of
legislation which classification must satisfy the twin tests of
classification being founded on an intelligible differentia which
distinguishes persons or things that are grouped together from those
that are left out of the group and that differentia must have a
rational nexus to the object sought to be achieved by the statute in
question.”
47. In E.P. Royappa26, it has been held by this Court that the
basic principle which informs both Articles 14 and 16 are equality and
inhibition against discrimination. This Court observed in para 85 (page 38
of the report) as under:
“….From a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn enemies;
one belongs to the rule of law in a republic while the other, to the
whim and caprice of an absolute monarch. Where an act is arbitrary, it
is implicit in it that it is unequal both according to political logic
and constitutional law and is therefore violative of Article 14, and
if it affects any matter relating to public employment, it is also
violative of Article 16. Articles 14 and 16 strike at arbitrariness in
State action and ensure fairness and equality of treatment.”
Court’s approach
48. Where there is challenge to the constitutional validity of a
law enacted by the legislature, the Court must keep in view that there is
always a presumption of constitutionality of an enactment, and a clear
transgression of constitutional principles must be shown. The fundamental
nature and importance of the legislative process needs to be recognized by
the Court and due regard and deference must be accorded to the legislative
process. Where the legislation is sought to be challenged as being
unconstitutional and violative of Article 14 of the Constitution, the Court
must remind itself to the principles relating to the applicability of
Article 14 in relation to invalidation of legislation. The two dimensions
of Article 14 in its application to legislation and rendering legislation
invalid are now well recognized and these are (i) discrimination, based on
an impermissible or invalid classification and (ii) excessive delegation of
powers; conferment of uncanalised and unguided powers on the executive,
whether in the form of delegated legislation or by way of conferment of
authority to pass administrative orders – if such conferment is without any
guidance, control or checks, it is violative of Article 14 of the
Constitution. The Court also needs to be mindful that a legislation does
not become unconstitutional merely because there is another view or because
another method may be considered to be as good or even more effective, like
any issue of social, or even economic policy. It is well settled that the
courts do not substitute their views on what the policy is.
Consideration
49. Several objections have been raised against this provision in
the context of Article 14. First, we shall consider the challenge against
the validity of classification which Section 6-A(1) makes and the lack of
relationship between the basis of that classification and the object which
it seeks to achieve.
50. The impugned provision, viz., Section 6-A came to be enacted
after the decision of this Court in Vineet Narain1. It is important to
bear in mind that the three-Judge Bench of this Court in Vineet Narain1 was
directly concerned with constitutional validity of the Single Directive
No. 4.7(3), which to the extent relevant for the present purposes, reads:
“4.7(3)(i) In regard to any person who is or has been a decision-
making level officer (Joint Secretary or equivalent or above in the
Central Government or such officers as are or have been on deputation
to a Public Sector Undertaking; officers of the Reserve Bank of India
of the level equivalent to Joint Secretary or above in the Central
Government, Executive Directors and above of the SEBI and Chairman &
Managing Director and Executive Directors and such of the bank
officers who are one level below the Board of Nationalised Banks),
there should be prior sanction of the Secretary of the
Ministry/Department concerned before SPE takes up any enquiry (PE or
RC), including ordering search in respect of them. Without such
sanction, no enquiry shall be initiated by the SPE.
(ii) xxx xxx xxx
(iii) xxx xxx xxx
(iv) xxx xxx xxx.”
51. The above provision contained in Single Directive 4.7(3)(i) was
sought to be justified by the learned Attorney General in Vineet Narain1 on
the ground that the officers at the decision making level need the
protection against malicious or vexatious investigations in respect of
honest decisions taken by them. Learned Attorney General in Vineet Narain1
submitted that such a structure to regulate the grant of sanction by a high
authority together with a time-frame to avoid any delay was sufficient to
make the procedure reasonable and to provide for an objective decision
being taken for the grant of sanction within the specified time. It was
urged that refusal of sanction would enable judicial review of that
decision in case of any grievance.
52. This Court in Vineet Narain1 took notice of the report
submitted by IRC, which recorded:
“In the past several years, there has been progressive increase in
allegations of corruption involving public servants. Understandably,
cases of this nature have attracted heightened media and public
attention. A general impression appears to have gained ground that the
Central investigating agencies concerned are subject to extraneous
pressures and have been indulging in dilatory tactics in not bringing
the guilty to book. The decisions of higher courts to directly monitor
investigations in certain cases have added to the aforesaid belief.”
53. The Court then discussed the earlier decisions of this Court in
J.A.C. Saldanha[74] and K. Veeraswami25 and also the provisions of the DSPE
Act and held that: “Powers of investigation which are governed by the
statutory provisions and they cannot be curtailed by any executive
instruction.” Having said that, this Court stated that the law did not
classify offenders differently for treatment thereunder, including
investigation of offences and prosecution for offences, according to their
status in life. Every person accused of committing the same offence is to
be dealt with in the same manner in accordance with law, which is equal in
its application to everyone. The Single Directive is applicable only to
certain persons above the specified level who are described as decision-
making officers. Negativing that any distinction can be made for them for
the purpose of investigation of an offence of which they are accused, this
Court in paragraphs 45 and 46 held as under:
“45. Obviously, where the accusation of corruption is based on direct
evidence and it does not require any inference to be drawn dependent
on the decision-making process, there is no rational basis to classify
them differently. In other words, if the accusation be of bribery
which is supported by direct evidence of acceptance of illegal
gratification by them, including trap cases, it is obvious that no
other factor is relevant and the level or status of the offender is
irrelevant. It is for this reason that it was conceded that such
cases, i.e., of bribery, including trap cases, are outside the scope
of the Single Directive. After some debate at the Bar, no serious
attempt was made by the learned Attorney General to support inclusion
within the Single Directive of cases in which the offender is alleged
to be in possession of disproportionate assets. It is clear that the
accusation of possession of disproportionate assets by a person is
also based on direct evidence and no factor pertaining to the
expertise of decision-making is involved therein. We have, therefore,
no doubt that the Single Directive cannot include within its ambit
cases of possession of disproportionate assets by the offender. The
question now is only with regard to cases other than those of bribery,
including trap cases, and of possession of disproportionate assets
being covered by the Single Directive.
46. There may be other cases where the accusation cannot be supported
by direct evidence and is a matter of inference of corrupt motive for
the decision, with nothing to prove directly any illegal gain to the
decision-maker. Those are cases in which the inference drawn is that
the decision must have been made for a corrupt motive because the
decision could not have been reached otherwise by an officer at that
level in the hierarchy. This is, therefore, an area where the opinion
of persons with requisite expertise in decision-making of that kind is
relevant and, may be even decisive in reaching the conclusion whether
the allegation requires any investigation to be made. In view of the
fact that the CBI or the police force does not have the expertise
within its fold for the formation of the requisite opinion in such
cases, the need for the inclusion of such a mechanism comprising of
experts in the field as a part of the infrastructure of the CBI is
obvious, to decide whether the accusation made discloses grounds for a
reasonable suspicion of the commission of an offence and it requires
investigation. In the absence of any such mechanism within the
infrastructure of the CBI, comprising of experts in the field who can
evaluate the material for the decision to be made, introduction
therein of a body of experts having expertise of the kind of business
which requires the decision to be made, can be appreciated. But then,
the final opinion is to be of the CBI with the aid of that advice and
not that of anyone else. It would be more appropriate to have such a
body within the infrastructure of the CBI itself.”
54. This Court, accordingly, declared Single Directive 4.7(3)(i)
being invalid.
55. Section 6-A replicates Single Directive 4.7(3)(i), which was
struck down by this Court. The only change is that executive instruction
is replaced by the legislation. Now, insofar as the vice that was pointed
out by this Court that powers of investigation which are governed by the
statutory provisions under the DSPE Act and they cannot be estopped or
curtailed by any executive instruction issued under Section 4(1) of that
Act is concerned, it has been remedied. But the question remains, and that
is what has been raised in these matters, whether Section 6-A meets the
touchstone of Article 14 of the Constitution.
56. Can classification be made creating a class of the government
officers of the level of Joint Secretary and above level and certain
officials in public sector undertakings for the purpose of
inquiry/investigation into an offence alleged to have been committed under
the PC Act, 1988? Or, to put it differently, can classification be made on
the basis of the status/position of the public servant for the purpose of
inquiry/investigation into the allegation of graft which amounts to an
offence under the PC Act, 1988? Can the Legislature lay down different
principles for investigation/inquiry into the allegations of corruption for
the public servants who hold a particular position? Is such classification
founded on sound differentia? To answer these questions, we should eschew
the doctrinaire approach. Rather, we should test the validity of impugned
classification by broad considerations having regard to the legislative
policy relating to prevention of corruption enacted in the PC Act, 1988 and
the powers of inquiry/investigation under the DSPE Act.
57. The Constitution permits the State to determine, by the process
of classification, what should be regarded as a class for purposes of
legislation and in relation to law enacted on a particular subject. There
is bound to be some degree of inequality when there is segregation of one
class from the other. However, such segregation must be rational and not
artificial or evasive. In other words, the classification must not only be
based on some qualities or characteristics, which are to be found in all
persons grouped together and not in others who are left out but those
qualities or characteristics must have a reasonable relation to the object
of the legislation. Differentia which is the basis of classification must
be sound and must have reasonable relation to the object of the
legislation. If the object itself is discriminatory, then explanation that
classification is reasonable having rational relation to the object sought
to be achieved is immaterial.
58. It seems to us that classification which is made in Section 6-A
on the basis of status in the Government service is not permissible under
Article 14 as it defeats the purpose of finding prima facie truth into the
allegations of graft, which amount to an offence under the PC Act, 1988.
Can there be sound differentiation between corrupt public servants based on
their status? Surely not, because irrespective of their status or position,
corrupt public servants are corrupters of public power. The corrupt public
servants, whether high or low, are birds of the same feather and must be
confronted with the process of investigation and inquiry equally. Based on
the position or status in service, no distinction can be made between
public servants against whom there are allegations amounting to an offence
under the PC Act, 1988.
59. Corruption is an enemy of the nation and tracking down corrupt
public servants and punishing such persons is a necessary mandate of the PC
Act, 1988. It is difficult to justify the classification which has been
made in Section 6-A because the goal of law in the PC Act, 1988 is to meet
corruption cases with a very strong hand and all public servants are warned
through such a legislative measure that corrupt public servants have to
face very serious consequences. In the words of Mathew, J. in Ambica Mills
Ltd.72, “The equal protection of the laws is a pledge of the protection of
equal laws. But laws may classify...... A reasonable classification is one
which includes all who are similarly situated and none who are not”.
Mathew, J., while explaining the meaning of the words, ‘similarly situated’
stated that we must look beyond the classification to the purpose of the
law. The purpose of a law may be either the elimination of a public
mischief or the achievement of some positive public good. The
classification made in Section 6-A neither eliminates public mischief nor
achieves some positive public good. On the other hand, it advances public
mischief and protects the crime-doer. The provision thwarts an
independent, unhampered, unbiased, efficient and fearless inquiry /
investigation to track down the corrupt public servants.
60. The essence of police investigation is skilful inquiry and
collection of material and evidence in a manner by which the
potential culpable individuals are not forewarned. The previous approval
from the Government necessarily required under Section 6-A would result in
indirectly putting to notice the officers to be investigated before
commencement of investigation. Moreover, if the CBI is not even
allowed to verify complaints by preliminary enquiry, how can the case move
forward? A preliminary enquiry is intended to ascertain whether a prima
facie case for investigation is made out or not. If CBI is prevented from
holding a preliminary enquiry, at the very threshold, a fetter is put to
enable the CBI to gather relevant material. As a matter of fact, the CBI
is not able to collect the material even to move the Government for the
purpose of obtaining previous approval from the Central Government.
61. It is important to bear in mind that as per the CBI Manual,
(Paragraph 9.10) a preliminary enquiry relating to allegations of bribery
and corruption should be limited to the scrutiny of records and
interrogation of bare minimum persons which being necessary to judge
whether there is any substance in the allegations which are being enquired
into and whether the case is worth pursuing further or not. Even this
exercise of scrutiny of records and gathering relevant information to find
out whether the case is worth pursuing further or not is not possible. In
the criminal justice system, the inquiry and investigation into an offence
is the domain of the police. The very power of CBI to enquire and
investigate into the allegations of bribery and corruption against a
certain class of public servants and officials in public undertakings is
subverted and impinged by Section 6-A.
62. The justification for having such classification is founded
principally on the statement made by the then Minister of Law and Justice
that if no protection is to be given to the officers, who take the
decisions and make discretions, then anybody can file a complaint and an
inspector of the CBI or the police can raid their houses any moment. If
this elementary protection is not given to the senior decision makers, they
would not tender honest advice to political executives. Such senior
officers then may play safe and give non-committal advice affecting the
governance. The justification for classification in Section 6-A is also put
forth on the basis of the report of the Joint Parliamentary Committee to
which CVC Bill, 1999 was referred particularly at the question relating to
Clause 27 regarding amendment of the DSPE Act (the provision which is now
Section 6-A). The Joint Parliamentary Committee, in this regard noted as
follows:
“The Committee note that many witnesses who appeared before the
Committee had expressed the need to protect the bonafide actions
at the decision making level. At present there is no provision
in the Bill for seeking prior approval of the Commission or the
head of the Department etc. for registering a case against a
person of the decision making level. As such, no protection is
available to the persons at the decision making level. In this
regard, the Committee note that earlier, the prior approval of
the Government was required in the form of a ‘Single Directive’
which was set aside by the Supreme Court. The Committee feel
that such a protection should be restored in the same format
which was there earlier and desire that the power of giving
prior approval for taking action against a senior officer of the
decision making level should be vested with the Central
Government by making appropriate provision in the Act. The
Committee, therefore, recommend that Clause 27 of the Bill
accordingly amended so as to insert a new section 6A to the DSPE
Act, 1946, to this effect.”
63. As a matter of fact, the justification for Section 6-A which
has been put forth before us on behalf of the Central Government was the
justification for Single Directive 4.7(3)(i) in Vineet Narain1 as well.
However, the Court was unable to persuade itself with the same. In Vineet
Narain1 in respect of Single Directive 4.7(3)(i), the Court said that every
person accused of committing the same offence is to be dealt with in the
same manner in accordance with law, which is equal in its application to
everyone. We are in agreement with the above observation in Vineet Narain1,
which, in our opinion, equally applies to Section 6-A. In Vineet Narain1,
this Court did not accept the argument that the Single Directive is
applicable only to certain class of officers above the specified level who
are decision making officers and a distinction can be made for them for the
purpose of investigation of an offence of which they are accused. We are
also clearly of the view that no distinction can be made for certain class
of officers specified in Section 6-A who are described as decision making
officers for the purpose of inquiry/investigation into an offence under the
PC Act, 1988. There is no rational basis to classify the two sets of
public servants differently on the ground that one set of officers is
decision making officers and not the other set of officers. If there is an
accusation of bribery, graft, illegal gratification or criminal misconduct
against a public servant, then we fail to understand as to how the status
of offender is of any relevance. Where there are allegations against a
public servant which amount to an offence under the PC Act, 1988, no factor
pertaining to expertise of decision making is involved. Yet, Section 6-A
makes a distinction. It is this vice which renders Section 6-A violative of
Article 14. Moreover, the result of the impugned legislation is that the
very group of persons, namely, high ranking bureaucrats whose misdeeds
and illegalities may have to be inquired into, would decide
whether the CBI should even start an inquiry or investigation against them
or not. There will be no confidentiality and insulation of the
investigating agency from political and bureaucratic control and influence
because the approval is to be taken from the Central Government which
would involve leaks and disclosures at every stage.
64. It is true that sub-Section (2) of Section 6-A has taken care
of observations of this Court in Vineet Narain1 insofar as trap cases are
concerned. It also takes care of the infirmity pointed out by this Court
that in the absence of any statutory requirement of prior permission or
sanction for investigation, it cannot be imposed as a condition precedent
for initiation of investigation, but, Section 6-A continues to suffer from
the other two infirmities which this Court noted concerning Single
Directive, viz.; (a) where inference is to be drawn that the decision must
have been for corrupt motive and direct evidence is not there, the
expertise to take decision whether to proceed or not in such cases should
be with the CBI itself and not with the Central Government and (b) in any
event the final decision to commence investigation into the offences must
be of the CBI with the internal aid and advice and not of anybody else.
Section 6-A also suffers from the vice of classifying offenders
differently for treatment thereunder for inquiry and investigation of
offences, according to their status in life. Every person accused of
committing the same offence is to be dealt with in the same manner in
accordance with law, which is equal in its application to everyone.
65. Way back in 1993, the Central Government constituted a
Committee under the Chairmanship of the former Home Secretary (Shri N.N.
Vohra) to take stock of all available information about the activities of
the crime syndicates/mafia organizations, which had developed links with
and were being permitted by Government functionaries and political
personalities. In para 14.3 of the report, the Committee has observed that
linkages of crime syndicate with senior Government functionaries or
political leaders in the States or at the Centre could have a destabilizing
effect on the functioning of the Government. The report paints a
frightening picture of criminal-bureaucratic-political nexus – a network of
high level corruption. The impugned provision puts this nexus in a position
to block inquiry and investigation by CBI by conferring the power of
previous approval on the Central Government.
66. A class of Central Government employees has been created in
Section 6-A inasmuch as it offers protection to a class of the Government
officers of the level of Joint Secretary and above to whom DSPE Act applies
but no such protection is available to the officers of the same level, who
are posted in various States. This position is accepted by CBI. Mr.
Sidharth Luthra, learned Additional Solicitor General placed before us the
following questions and answers to clarify the legal position:
“Question No.1 : Whether an officer of the public sector bank /
public sector undertaking of Central Govt. in the
rank of Joint Secretary and above while posting in
the State and alleged to have committed an offence
under P.C. Act, can be investigated by State Police
or CBI?
Answer No.1 : Yes, both State Police and CBI have jurisdiction
under P.C. Act over such officers. The jurisdiction
of CBI is, however, subject to Section 6(A) of DSPE
Act and consent of the State Govt. u/s 6 of the DSPE
Act, 1946.
Question No.2 : Whether an employee of All India Service i.e. IPS,
IAS and Indian Forest Services while posted in the
State Govt. at the JS level and above can claim
protection under 6(A)?
Answer No.2 : No, as the very wording of Section 6(A) mentions only
the employees of the Central Govt.
Question No.3 : Whether in a Union Territory, the State Police and
the CBI will have concurrent jurisdiction over
employees of Central Govt. for PC Act offences?
Answer No.3 : Yes, both the State UT Police and CBI have
jurisdiction over Central Govt. employees under P.C.
Act. Section 6(A) of DSPE Act is operative for CBI
for officers of the level of JS and above.
Question No.4 : What will be the position regarding employees of the
Central Govt. in the Allied / Central Civil Services
such as Indian Revenue Service, Postal Service etc.
Who are working in the territory of the State but not
posted in the State?
Answer No.4 ; Yes, both State Police and CBI have jurisdiction
under P.C. Act over such officers. The jurisdiction
of CBI is, however, subject to Section 6(A) of DSPE
Act and consent of the State Govt. u/s 6 of the DSPE
Act, 1946.”
67. Can it be said that the classification is based on intelligible
differentia when one set of bureaucrats of Joint Secretary level and above
who are working with the Central Government are offered protection under
Section 6-A while the same level of officers who are working in the States
do not get protection though both classes of these officers are accused of
an offence under PC Act, 1988 and inquiry / investigation into such
allegations is to be carried out. Our answer is in the negative. The
provision in Section 6-A, thus, impedes tracking down the corrupt senior
bureaucrats as without previous approval of the Central Government, the CBI
cannot even hold preliminary inquiry much less an investigation into the
allegations. The protection in Section 6-A has propensity of shielding the
corrupt. The object of Section 6-A, that senior public servants of the
level of Joint Secretary and above who take policy decision must not be put
to any harassment, side-tracks the fundamental objective of the PC Act,
1988 to deal with corruption and act against senior public servants. The
CBI is not able to proceed even to collect the material to unearth prima
facie substance into the merits of allegations. Thus, the object of Section
6-A itself is discriminatory. That being the position, the discrimination
cannot be justified on the ground that there is a reasonable classification
because it has rational relation to the object sought to be achieved.
68. The signature tune in Vineet Narain1 is, “However high you may
be, the law is above you.” We reiterate the same. Section 6-A offends this
signature tune and effectively Article 14.
69. Undoubtedly, every differentiation is not a discrimination but
at the same time, differentiation must be founded on pertinent and real
differences as distinguished from irrelevant and artificial ones. A simple
physical grouping which separates one category from the other without any
rational basis is not a sound or intelligible differentia. The separation
or segregation must have a systematic relation and rational basis and the
object of such segregation must not be discriminatory. Every public servant
against whom there is reasonable suspicion of commission of crime or there
are allegations of an offence under the PC Act, 1988 has to be treated
equally and similarly under the law. Any distinction made between them on
the basis of their status or position in service for the purposes of
inquiry / investigation is nothing but an artificial one and offends
Article 14.
70. Office of public power cannot be the workshop of personal gain.
The probity in public life is of great importance. How can two public
servants against whom there are allegations of corruption or graft or bribe-
taking or criminal misconduct under the PC Act, 1988 can be made to be
treated differently because one happens to be a junior officer and the
other, a senior decision maker.
71. Corruption is an enemy of nation and tracking down corrupt
public servant, howsoever high he may be, and punishing such person is a
necessary mandate under the PC Act, 1988. The status or position of public
servant does not qualify such public servant from exemption from equal
treatment. The decision making power does not segregate corrupt officers
into two classes as they are common crime doers and have to be tracked
down by the same process of inquiry and investigation.
72. It is argued on behalf of the Central Government that now
office memorandum (dated 26.09.2011) approving the recommendations made by
the Group of Ministers has been issued which provides inter alia for quick
consideration of the request by the CBI for approval and also to give
reasons for granting / rejecting sanction under Section 6-A. It is
submitted that delay in disposal of the requests by the CBI is now taken
care of and if there is denial of sanction order under Section 6-A, such
order of the Central Government can be challenged in a writ petition before
the High Court. Such protection, it is submitted, is even recognized by
United Nations in Article 30 of the UN Convention against corruption. This
aspect has been considered by this Court in Manohar Lal Sharma4 to which we
shall refer appropriately a little later.
73. The PC Act, 1988 is a special statute and its preamble shows
that it has been enacted to consolidate and amend the law relating to the
prevention of corruption and for the matters connected therewith. It is
intended to make the corruption laws more effective by widening their
coverage and by strengthening the provisions. It came to be enacted
because Prevention of Corruption Act, 1947 as amended from time to time was
inadequate to deal with the offences of corruption effectively. The new Act
now seeks to provide for speedy trial of offences punishable under the Act
in public interest as the legislature had become aware of corruption
amongst the public servants.
74. Corruption corrodes the moral fabric of the society and
corruption by public servants not only leads to corrosion of the moral
fabric of the society but also harmful to the national economy and national
interest, as the persons occupying high posts in the Government by misusing
their power due to corruption can cause considerable damage to the national
economy, national interest and image of the country[75].
75. The PC Act, 1988 has also widened the scope of the definition
of the expression ‘public servant’ and incorporated offences under Sections
161 to 165A of the Indian Penal Code (IPC). By Lokpal and Lokayuktas Act,
2013 (Act 1 of 2014), further amendments have been made therein. The
penalties relating to the offences under Sections 7, 8, 9, 12, 13 and 14
have been enhanced by these amendments.
75.1 Section 7 makes taking gratification by a public servant other
than legal remuneration in respect of an official act as an offence and
provides penalties for such offence. The expressions ‘gratification’ and
‘legal remuneration’ have been explained in clauses (b) and (c) of the
Explanation appended to Section 7. Taking gratification by corrupt or
illegal means to influence public servant is an offence under Section 8
while under Section 9, taking gratification for exercise of personal
influence with a public servant is an offence. Section 10 provides for
punishment for abetment by public servant of offences defined in Section 8
or 9. Section 11 provides for an offence where a public servant obtains
valuable thing without consideration from person concerned in proceeding or
business transacted by such public servant. The punishment for abetment of
offences defined in Section 7 or 11 is provided in Section 12.
75.2 Section 13 is a provision relating to criminal misconduct by a
public servant. It reads as follows:
“13. Criminal misconduct by a public servant.- (1) A public servant
is said to commit the offence of criminal misconduct,-
(a) if he habitually accepts or obtains or agrees to accept or
attempts to obtain from any person for himself or for any other
person any gratification other than legal remuneration as a
motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or
attempts to obtain for himself or for any other person, any
valuable thing without consideration or for a consideration
which he knows to be inadequate from any person whom he knows to
have been, or to be, or to be likely to be concerned in any
proceeding or business transacted or about to be transacted by
him, or having any connection with the official functions of
himself or of any public servant to whom he is subordinate, or
from any person whom he knows to be interested in or related to
the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or
otherwise converts for his own use any property entrusted to him
or under his control as a public servant or allows any other
person so to do; or
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for
any other person any valuable thing or pecuniary advantage;
or
(ii) by abusing his position as a public servant, obtains
for himself or for any other person any valuable thing or
pecuniary advantage; or
(iii) while holding office as a public servant, obtains for
any person any valuable thing or pecuniary advantage
without any public interest; or
(e) if he or any person on his behalf, is in possession or has,
at any time during the period of his office, been in possession
for which the public servant cannot satisfactorily account, of
pecuniary resources or property disproportionate to his known
sources of income.
Explanation.-For the purposes of this section, "known sources of
income" means income received from any lawful source and such receipt
has been intimated in accordance with the provisions of any law, rules
or orders for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall be
punishable with imprisonment for a term which shall be not less than
four years but which may extend to ten years and shall also be liable
to fine.”
75.3 Section 17 authorizes only certain level of police officers to
investigate the offences under the PC Act, 1988. An investigation into such
offences by any other police officer can be carried out only after having
proper authorization from the competent court or competent authority as
provided therein.
75.4 Section 19 mandates that no Court shall take cognizance of an
offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been
committed by a public servant except with the previous sanction as provided
in that section. Section 19 does not permit any court to take cognizance of
an offence punishable under Sections 7, 10, 11, 13 and 15 of the PC Act,
1988 without previous sanction from the competent authority where the
offence has been committed by a public servant who is holding the office
and by misusing or abusing the powers of the office, he has committed the
offence. Section 19, thus, provides to every public servant, irrespective
of his position in service, protection from frivolous and malicious
prosecution.
76. The menace of corruption has been noticed by this Court in Ram
Singh8. The court has observed:
“Corruption, at the initial stages, was considered confined to the
bureaucracy which had the opportunities to deal with a variety of
State largesse in the form of contracts, licences and grants. Even
after the war the opportunities for corruption continued as large
amounts of government surplus stores were required to be disposed of
by the public servants. As a consequence of the wars the shortage of
various goods necessitated the imposition of controls and extensive
schemes of post-war reconstruction involving the disbursement of huge
sums of money which lay in the control of the public servants giving
them a wide discretion with the result of luring them to the
glittering shine of wealth and property.”
77. This Court in Shobha Suresh Jumani[76], took judicial notice of
the fact that because of the mad race of becoming rich and acquiring
properties overnight or because of the ostentatious or vulgar show of
wealth by a few or because of change of environment in the society by
adoption of materialistic approach, there is cancerous growth of corruption
which has affected the moral standards of the people and all forms of
governmental administration.
78. The PC Act, 1988 enacts the legislative policy to meet
corruption cases with a very strong hand. All public servants are warned
through such a legislative measure that corrupt public servants have to
face very serious consequences.[77]
79. The two-Judge Bench of this Court observed in Sanjiv Kumar[78]
that the case before them had brought to the fore the rampant corruption in
the corridors of politics and bureaucracy.
80. In a comparatively recent decision of this Court in Subramanian
Swamy9, this court was concerned with the question whether a complaint can
be filed by a citizen for prosecuting the public servant for an offence
under the PC Act, 1988 and whether the authority competent to sanction
prosecution of a public servant for offences under that Act is required to
take appropriate decision within the time specified in Clause (I)(15) of
the directions contained in paragraph 58 of the judgment of this Court in
Vineet Narain1 and the guidelines issued by the Central Government,
Department of Personnel and Training and the Central Vigilance Commission.
In the supplementing judgment, A.K. Ganguly, J. while concurring with the
main judgment delivered by G.S. Singhvi, J. observed:
“Today, corruption in our country not only poses a grave danger to the
concept of constitutional governance, it also threatens the very
foundation of the Indian democracy and the Rule of Law. The magnitude
of corruption in our public life is incompatible with the concept of a
socialist secular democratic republic. It cannot be disputed that
where corruption begins all rights end. Corruption devalues human
rights, chokes development and undermines justice, liberty, equality,
fraternity which are the core values in our Preambular vision.
Therefore, the duty of the court is that any anti-corruption law has
to be interpreted and worked out in such a fashion as to strengthen
the fight against corruption……….”
Dealing with Section 19 of the PC Act, 1988 which bars a court from taking
cognizance of the cases of corruption against a public servant under
Sections 7, 10, 11, 13 and 15 of the PC Act, 1988, unless the Central or
the State Government, as the case may be, has accorded sanction observed
that this provision virtually imposes fetters on private citizens and also
on prosecutors from approaching court against corrupt public servants.
Public servants are treated as a special class of persons enjoying the said
protection so that they can perform their duties without fear and favour
and without threats of malicious prosecution but the protection against
malicious prosecution which is extended in public interest cannot become a
shield to protect corrupt officials.
81. In Balakrishna Dattatrya Kumbhar11, this Court observed that
corruption was not only a punishable offence but also, “undermines human
rights, indirectly violating them, and systematic corruption, is a human
rights’ violation in itself, as it leads to systematic economic crimes”.
82. In R.A. Mehta10, the two-Judge Bench of this Court made the
following observations about corruption in the society:
“Corruption in a society is required to be detected and eradicated at
the earliest as it shakes “the socio-economic-political system in an
otherwise healthy, wealthy, effective and vibrating society”. Liberty
cannot last long unless the State is able to eradicate corruption from
public life. Corruption is a bigger threat than external threat to the
civil society as it corrodes the vitals of our polity and society.
Corruption is instrumental in not proper implementation and
enforcement of policies adopted by the Government. Thus, it is not
merely a fringe issue but a subject-matter of grave concern and
requires to be decisively dealt with.”
83. Now we turn to the recent decision of this Court in Manohar Lal
Sharma4. A three-Judge Bench of this Court in that case leaving the
question of constitutional validity of Section 6-A untouched and touching
upon the question whether the approval of the Central Government is
necessary under Section 6-A in a matter where the inquiry/investigation
into the crime under the PC Act, 1988 is being monitored by the Court,
speaking through one of us (R.M. Lodha, J., as he then was) on the inquiry
into allegations of corruption observed that for successful working of the
democracy it was essential that public revenues are not defrauded and
public servants do not indulge in bribery and corruption and if they do,
the allegations of corruption are to be inquired into fairly, properly and
promptly and those who are guilty are brought to book. It was observed:
“Abuse of public office for private gain has grown in scope and scale
and hit the nation badly. Corruption reduces revenue; it slows down
economic activity and holds back economic growth. The biggest loss
that may occur to the nation due to corruption is loss of confidence
in the democracy and weakening of the rule of law.”
83.1 Madan B. Lokur, J. in his supplementing judgment dealt with
Office Memorandum dated 26th September, 2011. The relevant extract of the
Office Memorandum has been quoted in paragraph 74 of the judgment, which
reads:
“The undersigned is directed to state that the provision of
section 6-A of the DSPE Act, 1946 provides for safeguarding
senior public officials against undue and vexatious harassment
by the investigating agency. It had been observed that the
requests being made by the investigating agency under the said
provision were not being accorded due priority and the examination of
such proposals at times lacked objectivity. The matter was under
consideration of the Group of Ministers constituted to consider
measures that can be taken by the Government to tackle Corruption.
The Government has accepted the following recommendation of the Group
of Ministers, as reflected in para 25 of the First Report of the Group
of Ministers, as reflected in para 25 of the first report of the Group
of Ministers:-
(a). The competent authority shall decide the matter
within three months of receipt of requests accompanied
with relevant documents.
(b). The competent authority will give a speaking
order, giving reasons for its decision.
(c) In the event a decision is taken to refuse
permission, the reasons thereof shall be put up to the next
higher authority for information within one week of taking the
decision.
(d) Since Section 6-A specifically covers officers of
the Central Government, above the rank of Joint Secretary,
the competent authority in these cases will be the Minister
in charge in the Government of India. In such cases,
intimation of refusal to grant permission along with reasons
thereof, will have to be put up to the Prime Minister.
The above decision of the Government is brought to
the notice of all Ministries/Departments for due adherence and
strict compliance.”
83.2 The above office memorandum has not been found to be
efficacious in Manohar Lal Sharma4 as it does not effectively prevent
possible misuse of law. There is no guarantee that the time schedule
prescribed in the office memorandum shall be strictly followed. In any
case, what can CBI do if the time schedule provided in the office
memorandum is not maintained. Even otherwise, office memorandum is not of
much help in adjudging the constitutional validity of Section 6-A.
84. Learned amicus curiae highlighted that there was no requirement
of previous approval as contained in the impugned provisions between
18.12.1997 (the date of Vineet Narain1 judgment striking down the Single
Directive) and 11.9.2003 (when Act 45 of 2003 came into force) except the
period between 25.8.1998 and 27.10.1998 when the CVC Ordinance, 1998 was in
force and till the deletions by the CVC Amendment Ordinance, 1998. It is
not the stand of the Central Government before us nor any material is
placed on record by it to suggest even remotely that during the period when
the Single Directive was not in operation or until Section 6-A was brought
on the statute book, CBI harassed any senior government officer or
investigated frivolous and vexatious complaints. The high-pitched argument
in justification of Section 6-A that senior government officers may be
unduly and unnecessarily harassed on frivolous and vexatious complaints,
therefore, does not hold water.
85. Criminal justice system mandates that any investigation into
the crime should be fair, in accordance with law and should not be tainted.
It is equally important that interested or influential persons are not
able to misdirect or highjack the investigation so as to throttle a fair
investigation resulting in the offenders escaping the punitive course of
law. These are important facets of rule of law. Breach of rule of law, in
our opinion, amounts to negation of equality under Article 14. Section 6-A
fails in the context of these facets of Article 14. The argument of Mr. L.
Nageswara Rao that rule of law is not above law and cannot be a ground for
invalidating legislations overlooks the well settled position that rule of
law is a facet of equality under Article 14 and breach of rule of law
amounts to breach of equality under Article 14 and, therefore, breach of
rule of law may be a ground for invalidating the legislation being in
negation of Article 14.
86. Section 156 of the Cr.P.C. enables any officer in charge of a
police station to investigate a cognizable offence. Insofar as non-
cognizable offence is concerned, a police officer by virtue of Section 155
of Cr.P.C. can investigate it after obtaining appropriate order from the
Magistrate having power to try such case or commit the case for trial
regardless of the status of the officer concerned. The scheme of Section
155 and Section 156 Cr.P.C. indicates that the local police may investigate
a senior Government officer without previous approval of the Central
Government. However, CBI cannot do so in view of Section 6-A. This
anomaly in fact occurred in Centre for PIL[79]. That was a matter in which
investigations were conducted by the local police in respect of senior
Government official without any previous approval and a challan filed in
the court of Special Judge dealing with offences under the PC Act, 1988.
Dealing with such anomaly in Centre for PIL79, Madan B. Lokur, J. in
Manohar Lal Sharma4 observed, “It is difficult to understand the logic
behind such a dichotomy unless it is assumed that frivolous and
vexatious complaints are made only when the CBI is the investigating
agency and that it is only CBI that is capable of harassing or
victimizing a senior Government official while the local police of the
State Government does not entertain frivolous and vexatious complaints and
is not capable of harassing or victimizing a senior government official.
No such assumption can be made.” The above clearly indicates that
Section 6-A has brought an anomalous situation and the very object of the
provision to give protection to certain officers (Joint Secretary and
above) in the Central Government has been rendered discriminatory and
violative of Article 14.
87. It is pertinent to notice that in Subramanian Swamy9 this Court
noted that as per supplementary written submissions tendered by the learned
Attorney General, 126 cases were awaiting sanction for prosecution from the
Central Government for periods ranging from one year to few months.
Moreover, in more than one-third of the cases of requests for prosecution
in corruption cases against public servants, sanctions have not been
accorded. Whether an enactment providing for special procedure for a
certain class of persons is or is not discriminatory and violative of
Article 14 must be determined in its own context. A practical assessment of
the operation of the law in particular circumstances is necessary and the
court can take judicial notice of existing conditions from time to time.
The scenario noted in Subramanian Swamy9 and the facts in Telecom Watchdog5
- to illustrate the few – show that differentia in Section 6-A is directly
destructive and runs counter to the object and reason of the PC Act, 1988.
It also undermines the object of detecting and punishing high level
corruption.
88. Mr. K.V. Viswanathan, learned Additional Solicitor General has
strongly relied upon the observations made by this Court in P. Sirajuddin52
that if baseless allegations are made against senior Government officials,
it would cause incalculable harm not only to the officer in particular
but to the department that he belonged to, in general. He,
particularly, referred to the following observations in P. Sirajuddin52
(para 17, page 601 of the report):
“………..Before a public servant, whatever be his status, is publicly
charged with acts of dishonesty which amount to serious
misdemeanour or misconduct of the type alleged in this case and a
first information is lodged against him, there must be some suitable
preliminary enquiry into the allegations by a responsible officer.
The lodging of such a report against a person, specially one who
like the appellant occupied the top position in a department,
even if baseless, would do incalculable harm not only to the
officer in particular but to the department he belonged to, in
general.”
89. In our opinion, P. Sirajuddin52 also emphasizes equality before
law. This decision, in our opinion, cannot be read as laying down the
proposition that the distinction can be made for the purposes of inquiry /
investigation of an offence of which public servants are accused based on
their status.
90. It is pertinent to notice that in Manohar Lal Sharma4, the
learned Attorney General made a concession to the effect that in the event
of CBI conducting an inquiry, as opposed to an investigation into the
conduct of a senior government officer, no previous approval of the Central
Government is required since the inquiry does not have the same adverse
connotation that an investigation has. To that extent, Section 6-A, as it
is, does not survive. Insofar as investigation is concerned, an
investigation into a crime may have some adverse impact but where there are
allegations of an offence under the PC Act, 1988 against a public servant,
whether high or low, whether decision-maker or not, an independent
investigation into such allegations is of utmost importance and unearthing
the truth is the goal. The aim and object of investigation is ultimately
to search for truth and any law that impedes that object may not stand the
test of Article 14.
91. In the referral order, the contention of learned Solicitor
General has been noted with regard to inconsistency in the two judgments of
this Court in Vineet Narain1 and K. Veeraswami25.
92. In K. Veeraswami25, this Court in para 28 (pages 693-694 of the
report) observed:
“28. … Section 6 is primarily concerned to see that prosecution for
the specified offences shall not commence without the sanction of a
competent authority. That does not mean that the Act was intended to
condone the offence of bribery and corruption by public servant. Nor
it was meant to afford protection to public servant from criminal
prosecution for such offences. It is only to protect the honest public
servants from frivolous and vexatious prosecution. The competent
authority has to examine independently and impartially the material on
record to form his own opinion whether the offence alleged is
frivolous or vexatious. The competent authority may refuse sanction
for prosecution if the offence alleged has no material to support or
it is frivolous or intended to harass the honest officer. But he
cannot refuse to grant sanction if the material collected has made out
the commission of the offence alleged against the public servant.
Indeed he is duty-bound to grant sanction if the material collected
lend credence to the offence complained of. There seems to be another
reason for taking away the discretion of the investigating agency to
prosecute or not to prosecute a public servant. When a public servant
is prosecuted for an offence which challenges his honesty and
integrity, the issue in such a case is not only between the prosecutor
and the offender, but the State is also vitally concerned with it as
it affects the morale of public servants and also the administrative
interest of the State. The discretion to prosecute public servant is
taken away from the prosecuting agency and is vested in the authority
which is competent to remove the public servant. The authority
competent to remove the public servant would be in a better position
than the prosecuting agency to assess the material collected in a
dispassionate and reasonable manner and determine whether sanction for
prosecution of a public servant deserves to be granted or not.”
93. In Vineet Narain1, the above observations in K. Veeraswami25
have been considered in paras 34 and 35 of the report (pages 259-260) and
the three-Judge Bench held that the position of Judges of High Courts and
the Supreme Court, who are constitutional functionaries, is distinct, and
the independence of judiciary, keeping it free from any extraneous
influence, including that from executive, is the rationale of the decision
in K. Veeraswami25. The Court went on to say: “…. In strict terms the
Prevention of Corruption Act, 1946 could not be applied to the superior
Judges and, therefore, while bringing those Judges within the purview of
the Act yet maintaining the independence of judiciary, this guideline was
issued as a direction by the Court. The feature of independence of
judiciary has no application to the officers covered by the Single
Directive. The need for independence of judiciary from the executive
influence does not arise in the case of officers belonging to the
executive…..”
94. The observations in K. Veeraswami25, as noted above, were found
to be confined to the Judges of the High Courts and the Supreme Court, who
are constitutional functionaries, and their position being distinct and
different from the Government officers. In our opinion, the Constitution
Bench decision in K. Veeraswami25 has no application to the senior public
servants specified in Section 6-A. We have, therefore, no hesitation in
holding that the conclusion reached in para 34 in Vineet Narain1, in no
manner, can be said to be inconsistent with the findings recorded in para
28 of K. Veeraswami25.
95. Various provisions under different statutes were referred to by
Mr. L. Nageswara Rao where permission of the government is required before
taking cognizance or for institution of an offence. Section 197 of Cr.P.C.
was also referred to, which provides for protection to Judges and public
servants from prosecution except with the previous sanction by the
competent authority. It may be immediately stated that there is no
similarity between the impugned provision in Section 6-A of the DSPE Act
and Section 197 of Cr.P.C. Moreover, where challenge is laid to the
constitutionality of a legislation on the bedrock or touchstone of
classification, it has to be determined in each case by applying well-
settled two tests: (i) that classification is founded on intelligible
differentia and (ii) that differentia has a rational relation with the
object sought to be achieved by the legislation. Each case has to be
examined independently in the context of Article 14 and not by applying any
general rule.
96. A feeble attempt was made by Mr. K.V. Viswanathan, learned
Additional Solicitor General that Section 6-A must at least be saved for
the purposes of Section 13(1)(d)(ii) and (iii) of the PC Act, 1988. In our
opinion, Section 6-A does not satisfy the well-settled tests in the context
of Article 14 and is not capable of severance for the purposes of Section
13(1)(d)(ii) and (iii).
97. Having considered the impugned provision contained in Section 6-
A and for the reasons indicated above, we do not think that it is necessary
to consider the other objections challenging the impugned provision in the
context of Article 14.
98. In view of our foregoing discussion, we hold that Section 6-
A(1), which requires approval of the Central Government to conduct any
inquiry or investigation into any offence alleged to have been committed
under the PC Act, 1988 where such allegation relates to (a) the employees
of the Central Government of the level of Joint Secretary and above and (b)
such officers as are appointed by the Central Government in corporations
established by or under any Central Act, government companies, societies
and local authorities owned or controlled by the Government, is invalid and
violative of Article 14 of the Constitution. As a necessary corollary, the
provision contained in Section 26 (c) of the Act 45 of 2003 to that extent
is also declared invalid.
99. Writ petitions are allowed as above.
.…...………..……………………...CJI.
(R.M. Lodha)
.…...………..……………………...J.
(A.K. Patnaik)
.…...………..……………………...J.
(Sudhansu Jyoti Mukhopadhaya)
.…...………..……………………...J.
(Dipak Misra)
.…...………..……………………...J. (Fakkir Mohamed
Ibrahim Kalifulla)
NEW DELHI
MAY 06, 2014.
-----------------------
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[5] Telecom Watchdog v. Union of India; (Delhi High Court W.P.(C) No.
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SCC 384].
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[18] State of Karnataka v. Union of India and Anr.; [(1977) 4 SCC 608].
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[21] Union of India v. R. Gandhi, President, Madras Bar Association;
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1].
[23] G.C. Kanungo v. State of Orissa; [(1995) 5 SCC 96].
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[25] K. Veeraswami v. Union of India and Ors.; [(1991) 3 SCC 655].
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[27] Maneka Gandhi v. Union of India and Anr.; [(1978) 1 SCC 248].
[28] Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors.; [(1981) 1
SCC 722].
[29] Malpe Vishwanath Acharya and Ors. v. State of Maharashtra and Anr.;
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[30] Mardia Chemicals Ltd. and Ors. v. Union of India and Ors.; [(2004) 4
SCC 311].
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[32] Ashoka Kumar Thakur v. Union of India and Ors.; [(2008) 6 SCC 1].
[33] Natural Resources Allocation, In re, Special Reference No. 1 of
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709].
[35] State of M.P. v. Rakesh Kohli and Anr.; [(2012) 6 SCC 312].
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[51] State of Bihar & Ors. v. Kripalu Shankar & Ors.; [(1987) 3 SCC 34]
[52] P. Sirajuddin, etc. v. State of Madras, etc.; [(1970) 1 SCC 595]
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3 SCC 110]
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[79] Centre for PIL and Anr. v. Union of India and Anr.; [(2011) 4 SCC
1]
is also declared invalid.=
Section 6-A of the Delhi Special Police Establishment Act, 1946
(for short, ‘the DSPE Act’), which was inserted by Act 45 of 2003, reads as
under:
“Section 6-A. Approval of Central Government to conduct inquiry or
investigation.- (1) The Delhi Special Police Establishment shall not
conduct any inquiry or investigation into any offence alleged to have
been committed under the Prevention of Corruption Act, 1988 (49 of
1988) except with the previous approval of the Central Government
where such allegation relates to-
(a) the employees of the Central Government of the Level of
Joint Secretary and above; and
(b) such officers as are appointed by the Central Government in
corporations established by or under any Central Act, Government
companies, societies and local authorities owned or controlled
by that Government.
(2) Notwithstanding anything contained in sub-section (1), no such
approval shall be necessary for cases involving arrest of a person on
the spot on the charge of accepting or attempting to accept any
gratification other than legal remuneration referred to in clause (c)
of the Explanation to section 7 of the Prevention of Corruption Act,
1988 (49 of 1988).”=
In view of our foregoing discussion, we hold that Section 6-
A(1), which requires approval of the Central Government to conduct any
inquiry or investigation into any offence alleged to have been committed
under the PC Act, 1988 where such allegation relates to (a) the employees
of the Central Government of the level of Joint Secretary and above and (b)
such officers as are appointed by the Central Government in corporations
established by or under any Central Act, government companies, societies
and local authorities owned or controlled by the Government, is invalid and
violative of Article 14 of the Constitution. As a necessary corollary, the
provision contained in Section 26 (c) of the Act 45 of 2003 to that extent
is also declared invalid.
2014 ( May.Part)
http://judis.nic.in/supremecourt/filename=41503
R.M. LODHA, A.K. PATNAIK, SUDHANSU JYOTI MUKHOPADHAYA, DIPAK MISRA, FAKKIR MOHAMED IBRAHIM KALIFULLA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 38 OF 1997
Dr. Subramanian Swamy ……
Petitioner
Versus
Director, Central Bureau of Investigation & Anr. ……
Respondents
WITH
WRIT PETITION (CIVIL) NO. 21 OF 2004
Centre for Public Interest Litigation
…… Petitioner
Versus
Union of India …… Respondent
JUDGMENT
R.M. LODHA, CJI.
Section 6-A of the Delhi Special Police Establishment Act, 1946
(for short, ‘the DSPE Act’), which was inserted by Act 45 of 2003, reads as
under:
“Section 6-A. Approval of Central Government to conduct inquiry or
investigation.- (1) The Delhi Special Police Establishment shall not
conduct any inquiry or investigation into any offence alleged to have
been committed under the Prevention of Corruption Act, 1988 (49 of
1988) except with the previous approval of the Central Government
where such allegation relates to-
(a) the employees of the Central Government of the Level of
Joint Secretary and above; and
(b) such officers as are appointed by the Central Government in
corporations established by or under any Central Act, Government
companies, societies and local authorities owned or controlled
by that Government.
(2) Notwithstanding anything contained in sub-section (1), no such
approval shall be necessary for cases involving arrest of a person on
the spot on the charge of accepting or attempting to accept any
gratification other than legal remuneration referred to in clause (c)
of the Explanation to section 7 of the Prevention of Corruption Act,
1988 (49 of 1988).”
2. The constitutional validity of Section 6-A is in issue in these
two writ petitions, both filed under Article 32 of the Constitution. Since
Section 6-A came to be inserted by Section 26(c) of the Central Vigilance
Commission Act, 2003 (Act 45 of 2003), the constitutional validity of
Section 26(c) has also been raised. It is not necessary to independently
refer to Section 26(c). Our reference to Section 6-A of the DSPE Act,
wherever necessary, shall be treated as reference to Section 26(c) of the
Act 45 of 2003 as well.
Reference to the Constitution Bench
3. On February 4, 2005 when these petitions came up for
consideration, the Bench thought that these matters deserved to be heard by
the larger Bench. The full text of the reference order is as follows:
“In these petitions challenge is to the constitutional validity of
Section 6-A of the Delhi Special Police Establishment Act, 1946 (for
short, “the Act”). This section was inserted in the Act
w.e.f. 12-9-2003. It, inter alia, provides for obtaining
the previous approval of the Central Government for
conduct of any inquiry or investigation for any offence
alleged to have been committed under the Prevention of Corruption
Act, 1988 where allegations relate to officers of the level of Joint
Secretary and above. Before insertion of Section 6-A
in the Act, the requirement to obtain prior approval of the
Central Government was contained in a directive known as “Single
Directive” issued by the Government. The Single Directive was a
consolidated set of instructions issued to the Central Bureau of
Investigation (CBI) by various Ministries/Departments regarding
modalities of initiating an inquiry or registering a case
against certain categories of civil servants. The said directive was
stated to have been issued to protect decision-making-level officers
from the threat and ignominy of malicious and vexatious
inquiries/investigations and to give protection to officers at the
decision-making level and to relieve them of the anxiety from the
likelihood of harassment for taking honest decisions. It was
said that absence of such protection to them could adversely affect
the efficiency and efficacy of these institutions because of
the tendency of such officers to avoid taking any decisions
which could later lead to harassment by any malicious and
vexatious inquiries/investigations.
2. The Single Directive was quashed by this Court in a
judgment delivered on 18-12-1997 (Vineet Narain & Ors. v.
Union of India & Anr. (1998) 1 SCC 226). Within a few months
after Vineet Narain judgment, by the Central Vigilance Commission
Ordinance, 1998 dated 25-8-1998, Section 6-A was sought to be
inserted providing for the previous approval of the
Central Vigilance Commission before investigation of the
officers of the level of Joint Secretary and above. On
the intervention of this Court, this provision was deleted by issue of
another Ordinance promulgated on 27-10-1998. From the date of the
decision in Vineet Narain case and till insertion of Section 6-A
w.e.f. 12-9-2003, there was no requirement of seeking previous
approval except for a period of two months from 25-8-1998 to 27-10-
1998.
3. The validity of Section 6-A has been questioned on the
touchstone of Article 14 of the Constitution. Learned amicus curiae
has contended that the impugned provision is wholly subversive of
independent investigation of culpable bureaucrats and strikes at
the core of rule of law as explained in Vineet Narain case and the
principle of independent, unhampered, unbiased and
efficient investigation. The contention is that Vineet
Narain decision frames a structure by which honest officers
could fearlessly enforce the criminal law and detect corruption
uninfluenced by extraneous political, bureaucratic or other
influences and the result of the impugned legislation is
that the very group of persons, namely, high-ranking
bureaucrats whose misdeeds and illegalities may have to
be inquired into, would decide whether CBI should even start an
inquiry or investigation against them or not. There will be no
confidentiality and insulation of the investigating agency from
political and bureaucratic control and influence because the approval
is to be taken from the Central Government which would involve
leaks and disclosures at every stage. The very nexus of the
criminal-bureaucrat-politician which is subverting the whole polity
would be involved in granting or refusing prior
approval before an inquiry or investigation can take place. Pointing
out that the essence of a police investigation is skilful
inquiry and collection of material and evidence in a manner by
which the potential culpable individuals are not
forewarned, the submission made is that the prior sanction of the
same department would result in indirectly putting to notice the
officers to be investigated before commencement of
investigation. Learned Senior Counsel contends that it is wholly
irrational and arbitrary to protect highly-placed public
servants from inquiry or investigation in the light of
the conditions prevailing in the country and the corruption at high
places as reflected in several judgments of this Court including
that of Vineet Narain. Section 6-A of the Act is wholly
arbitrary and unreasonable and is liable to be struck
down being violative of Article 14 of the Constitution
is the submission of learned amicus curiae.
4. In support of the challenge to the constitutional
validity of the impugned provision, besides observations
made in the three-Judge Bench decision in Vineet Narain
case reliance has also been placed on various
decisions including S.G. Jaisinghani v. Union of India [(1967) 2
SCR 703], Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC 212],
Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722] and Mardia
Chemicals Ltd. v. Union of India [(2004) 4 SCC 311] to
emphasize that the absence of arbitrary power is the
first essential of the rule of law upon which our whole constitutional
system is based. In Mardia Chemicals case a three-Judge Bench held
Section 17(2) of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 to be
unreasonable and arbitrary and violative of Article 14 of the
Constitution. Section 17(2) provides for condition of
deposit of 75% of the amount before an appeal could
be entertained. The condition has been held to be
illusory and oppressive. Malpe Vishwanath Acharya v. State of
Maharashtra [(1998) 2 SCC 1], again a decision of a three-Judge
Bench, setting aside the decision of the High Court which
upheld the provisions of Sections 5(10)(b), 11(1) and
12(3) of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 pertaining to standard rent in
petitions where the constitutional validity of those provisions
was challenged on the ground of the same being
arbitrary, unreasonable and consequently ultra vires Article 14 of
the Constitution, has come to the conclusion that the said provisions
are arbitrary and unreasonable.
5. Learned Solicitor General, on the other hand, though very fairly
admitting that the nexus between criminals and some
elements of establishment including politicians and various
sections of bureaucracy has increased and also that there is a
disturbing increase in the level of corruption and
these problems need to be addressed, infractions of the law
need to be investigated, investigations have to be conducted
quickly and effectively without any interference and the
investigative agencies should be allowed to function
without any interference of any kind whatsoever and that
they have to be insulated from any extraneous
influences of any kind, contends that a legislation
cannot be struck down on the ground of arbitrariness
or unreasonableness as such a ground is available only
to quash executive action and orders. Further contention is that
even a delegated legislation cannot be quashed on the ground of mere
arbitrariness and even for quashing such a legislation, manifest
arbitrariness is the requirement of law. In support, reliance has
been placed on observations made in a three-Judge Bench
decision in State of A.P.. v. McDowell & Co. [(1996) 3 SCC 709]
that no enactment can be struck down by just saying that it is
arbitrary or unreasonable and observations made in Khoday
Distilleries Ltd. v. State of Karnataka [1996 (10) SCC
304] that delegated legislation can be struck down only if there is
manifest arbitrariness.
6. In short, the moot question is whether arbitrariness and
unreasonableness or manifest arbitrariness and unreasonableness,
being facets of Article 14 of the Constitution are
available or not as grounds to invalidate a legislation. Both counsel
have placed reliance on observations made in decisions rendered by a
Bench of three learned Judges.
7. Further contention of learned Solicitor General is that the
conclusion drawn in Vineet Narain case is erroneous that the
Constitution Bench decision in K. Veeraswami v. Union of India
[(1991) 3 SCC 655] is not an authority for the proposition that in the
case of high officials, requirement of prior
permission/sanction from a higher officer or Head of the
Department is permissible, the submission is that conclusion reached
in para 34 of Vineet Narain decision runs contrary to
observations and findings contained in para 28 of Veeraswami case.
8. Having regard to the aforesaid, we are of the view that the
matters deserve to be heard by a larger Bench, subject
to the orders of Hon'ble the Chief Justice of India.”
Background of Section 6-A
4. We may first notice the background in which Section 6-A was
inserted in the DSPE Act. In 1993, Vineet Narain approached this Court
under Article 32 of the Constitution of India complaining inertia by the
Central Bureau of Investigation (CBI) in matters where the accusation made
was against high dignitaries. The necessity of monitoring the investigation
by this Court is indicated in paragraph 1 of the judgment[1], which reads:
“These writ petitions under Article 32 of the Constitution of India
brought in public interest, to begin with, did not appear to have the
potential of escalating to the dimensions they reached or to give rise
to several issues of considerable significance to the implementation
of rule of law, which they have, during their progress. They began as
yet another complaint of inertia by the Central Bureau of
Investigation (CBI) in matters where the accusation made was against
high dignitaries. It was not the only matter of its kind during the
recent past. The primary question was: Whether it is within the domain
of judicial review and it could be an effective instrument for
activating the investigative process which is under the control of the
executive? The focus was on the question, whether any judicial remedy
is available in such a situation? However, as the case progressed, it
required innovation of a procedure within the constitutional scheme of
judicial review to permit intervention by the court to find a solution
to the problem. This case has helped to develop a procedure within the
discipline of law for the conduct of such a proceeding in similar
situations. It has also generated awareness of the need of probity in
public life and provided a mode of enforcement of accountability in
public life. Even though the matter was brought to the court by
certain individuals claiming to represent public interest, yet as the
case progressed, in keeping with the requirement of public interest,
the procedure devised was to appoint the petitioners’ counsel as the
amicus curiae and to make such orders from time to time as were
consistent with public interest. Intervention in the proceedings by
everyone else was shut out but permission was granted to all, who so
desired, to render such assistance as they could, and to provide the
relevant material available with them to the amicus curiae for being
placed before the court for its consideration. In short, the
proceedings in this matter have had great educative value and it does
appear that it has helped in future decision-making and functioning of
the public authorities.”
5. In Vineet Narain1, Single Directive No.4.7(3), which contained
certain instructions to CBI regarding modalities of initiating an inquiry
or registering a case against certain categories of civil servants, fell
for consideration. We shall refer to Single Directive No. 4.7(3) at some
length a little later but suffice to say here that this Court struck down
Single Directive No.4.7(3). While doing so, the Court also made certain
recommendations in respect of CBI and Central Vigilance Commission (CVC).
One of such recommendations was to confer statutory status to CVC.
6. Initially, the Government decided to put the proposed law in
place through an Ordinance so as to comply with the directions of this
Court in Vineet Narain1. Later on the Government introduced the CVC Bill,
1998 in the Lok Sabha on 7.12.1998. The CVC Bill, 1998 was referred to the
Department-related Parliamentary Standing Committee on Home Affairs for
examination and report, which presented its report to the Parliament on
25.2.1999 and made certain recommendations on the CVC Bill, 1998. The Lok
Sabha passed the CVC Bill, 1998 as the CVC Bill, 1999 on 15.3.1999 after
adopting the official amendments moved in this regard. However, before the
Bill could be considered and passed by the Rajya Sabha, the 12th Lok Sabha
was dissolved on 26.4.1999 and, consequently, the CVC Bill, 1999 lapsed.
The CVC Bill was re-introduced with the title “The Central Vigilance
Commission Bill, 2003”. The Bill was passed by both the Houses of
Parliament and received the assent of the President on 11.9.2003. This is
how the Central Vigilance Commission Act, 2003 (for short, ‘Act 45 of
2003’) came to be enacted.
7. Act 45 of 2003 provides for the constitution of a Central
Vigilance Commission to inquire or cause inquiries to be conducted into
offences alleged to have been committed under the Prevention of Corruption
Act, 1988 (for short, ‘PC Act, 1988’) by certain categories of public
servants of the Central Government, corporations established by or under
any Central Act, government companies, societies and local authorities
owned or controlled by the Central Government and for matters connected
therewith or incidental thereto. Section 26 of the Act 45 of 2003 provides
for amendment of DSPE Act and clause (c) thereof enacts that after Section
6, Section 6-A shall be inserted in the DSPE Act.
8. Section 6-A(1) of the DSPE Act requires approval of the Central
Government to conduct inquiry or investigation where the allegations of
commission of an offence under the PC Act, 1988 relate to the employees of
the Central Government of the level of Joint Secretary and above.
Genesis of Challenge to Section 6-A
9. On 24.2.1997, the Writ Petition (Civil) No.38/1997 came up for
admission before a three-Judge Bench. On hearing the petitioner, the writ
petition was entertained but it was confined to relief in paragraph 12(a)
only. The notice was directed to be issued to respondent No.1 (Director,
CBI) and respondent No.5 (Union of India through Cabinet Secretary) and
other respondents were deleted from the array of parties. The Court on that
date requested Shri Anil B. Divan, learned senior counsel to appear as
amicus curiae in the case. It is not necessary to narrate the proceedings
which took place on various dates. It may, however, be mentioned that on
5.4.2002 when the matter was mentioned before the Bench, learned amicus
curiae expressed his concern regarding the attempt to restore the Single
Directive, which was struck down in Vineet Narain1, in the proposed
legislation. Thereupon, the matter was adjourned and Court requested the
presence of learned Attorney General on 19.4.2002. On 19.4.2002, the matter
was ordered to be listed in September, 2002. As noted above, on 11.9.2003,
Act 45 of 2003 received Presidential assent and Section 6-A was inserted in
the DSPE Act.
10. On 19.1.2004, Writ Petition (C) No.21/2004 was ordered to be
listed along with Writ Petition (C) No.38/1997. On 23.1.2004, notice was
issued in Writ Petition (C) No. 21/2004. In this writ petition, the
counter was filed by the Union on 7.4.2004 and rejoinder affidavit was
filed by the petitioner.
11. We have heard Mr. Anil B. Divan, learned senior counsel and
amicus curiae in Writ Petition (C) No.38/1997 and Mr. Prashant Bhushan,
learned counsel for the petitioner in Writ Petition (C) No.21/2004. In one
matter, Mr. L. Nageswara Rao, learned Additional Solicitor General appeared
for Union of India while in the other, Mr. K.V. Viswanathan, learned
Additional Solicitor General appeared on behalf of Union of India. We have
heard both of them on behalf of the Union of India. We have also heard Mr.
Gopal Sankaranarayanan, learned counsel for the intervenor.
Submissions of Mr. Anil B. Divan
12. Mr. Anil B. Divan, learned amicus curiae argues that Section 6-
A is an impediment to the rule of law and violative of Article 14, which
is part of the rule of law; that the impugned provision creates a
privileged class and thereby subverts the normal investigative process and
violates the fundamental right(s) under Article 14 of every citizen. He
submits that if the impugned provision is replicated at the State level and
provision of ‘previous approval’ by respective State Governments is
required, then the rule of law would completely collapse in the whole of
India and no high level corruption would be investigated or punished. He
relies upon decision of this Court in Vineet Narain1. He also relies upon
the decision in I.R. Coelho[2] in support of the proposition that Article
14 is a part of the rule of law and it is the duty of the judiciary to
enforce the rule of law.
13. According to learned amicus curiae, Section 6-A directly
presents an illegal impediment to the insulation of CBI and undermines the
independence of CBI to hold a preliminary enquiry (PE) or investigation.
Citing the judgments of this Court in Centre for Public Interest Litigation
(2G Spectrum case)[3] and Manohar Lal Sharma[4] following Vineet Narain1,
learned amicus curiae submits that trend of these judgments is to preserve
the rule of law by insulating the CBI from executive influence which could
derail and result in inaction in enforcing the criminal law against high
level corruption. Learned amicus curiae highlighted that there was no
requirement of previous approval as contained in the impugned provisions
between 18.12.1997 (the date of Vineet Narain1 judgment striking down the
Single Directive) and 11.9.2003 (when CVC Act came into force) except the
period between 25.8.1998 and 27.10.1998 when the CVC Ordinance, 1998 was in
force and till the deletions by CVC Amendment Ordinance, 1998. He referred
to N.N. Vohra Committee report which paints a frightening picture of
criminal-bureaucratic-political nexus – a network of high level corruption
– and submitted that the impugned provision puts this nexus in a position
to block inquiry and investigation by CBI by conferring the power of
previous approval on the Central Government.
14. Mr. Anil B. Divan, learned amicus curiae wants us to take
judicial notice of the fact that high level bureaucratic corruption goes
hand in hand, on many occasions, with political corruption at the highest
level. This very group of high ranking bureaucrats, whose misconduct and
criminality, if any, requires to be first inquired into and thereafter
investigated, can thwart, defeat and impair this exercise. In substance,
the potential accused would decide whether or not their conduct should be
inquired into. He argues that the essence of skillful and effective police
investigation is by collection of evidence and material secretly, without
leakage so that the potential accused is not forewarned leading to
destruction or tempering of evidence and witnesses. Such investigation is
compromised by the impugned provision, viz., Section 6-A of the DSPE Act.
The requirement of previous approval in the impugned provision would mean
leakages as well as breach of confidentiality and would be wholly
destructive of an efficient investigation. The provision, such as Section 6-
A, offers an impregnable shield (except when there is a court monitored
investigation) to the criminal-bureaucratic-political nexus. If the CBI is
not even allowed to verify complaints by preliminary enquiry, how can the
case move forward? In such a situation, the very commencement of enquiry /
investigation is thwarted and delayed. Moreover, a preliminary enquiry is
intended to ascertain whether a prima facie case for investigation is made
out or not. If CBI is prevented from holding a preliminary enquiry, it will
not be able to even gather relevant material for the purpose of obtaining
previous approval.
15. Learned amicus curiae submits that for judging the validity of
classification or reasonableness or arbitrariness of State action, the
Court is entitled to take notice of conditions prevailing from time to
time. He referred to certain portions of the N.N. Vohra Committee report,
2G Spectrum case3 and the facts of a case before Delhi High Court entitled
‘Telecom Watchdog’[5] and the case of M. Gopalakrishnan, Chairman and
Managing Director (CMD of Indian Bank). Learned amicus curiae also relied
upon decisions of this Court in V.G. Row[6] and D.S. Nakara[7].
16. It is submitted by the learned amicus curiae that pervasive
corruption adversely affects welfare and other activities and expenditures
of the state. Consequently, the rights of Indian citizens not only under
Article 14 but also under Article 21 are violated. In this regard, he has
relied upon the observations made by this Court in Vineet Narain1, Ram
Singh[8], Subramanian Swamy[9], R.A. Mehta[10], Balakrishna Dattatrya
Kumbhar[11] and In re. Special Courts Bill, 1978[12].
17. Learned amicus curiae submits that Section 6-A confers on the
Central Government unguided, unfettered and unbridled power and the
provision is manifestly arbitrary, entirely perverse and patently
unreasonable. He relies upon the decisions of this Court in Travancore
Chemicals and Manufacturing Co.[13], Krishna Mohan (P) Ltd.[14], Canara
Bank[15] and Nergesh Meerza[16].
18. It is vehemently contended by the learned amicus curiae that
the classification as contained in Section 6-A creating a privileged class
of the government officers of the level of Joint Secretary and above level
and certain officials in public sector undertakings, etc. is directly
destructive and runs counter to the whole object and reason of the PC Act,
1988 read with the DSPE Act and undermines the object of detecting and
punishing high level corruption. In this regard, learned amicus curiae
referred to protection given to Government officials under Section 197 of
the Code of Criminal Procedure (Cr.P.C.) and under Section 19 of the PC
Act, 1988. He argues that the well-settled two tests: (i) that
classification must be founded on intelligible differentia and (ii) that
differentia must have a rational relation with the object sought to be
achieved by the legislation, are not satisfied by Section 6-A. A
privileged class of Central Government employees has been created inasmuch
as the protection offered to the category of the government officers of the
level of Joint Secretary and above regarding previous approval does not
extend to: (a) official / employees who are not employees of the Central
Government, (b) employees of the Central Government below Joint Secretary
level, (c) employees of Joint Secretary level and above in the states, (d)
enquiry and investigation of offences which are not covered by the PC Act,
1988, and (e) other individuals including ministers, legislators and
private sector employees. Learned amicus curiae relies upon the decision of
this Court in Vithal Rao[17].
Submissions of Mr. Prashant Bhushan for Centre for Public Interest
Litigation (CPIL-petitioner)
19. Mr. Prashant Bhushan, learned counsel for the petitioner in the
connected writ petition filed by Centre for Public Interest Litigation
(CPIL) has adopted the arguments of the learned amicus curiae. He submits
that Section 6-A makes criminal investigation against a certain class of
public servants unworkable and it completely militates against the rule of
law. He referred to the United Nations document entitled “United Nations
Convention Against Corruption” and submitted that Section 6-A of the DSPE
Act interdicts enquiry or investigation in respect of certain class of
officers and puts direct hindrance in combating corruption and, therefore,
the provision is violative of Article 14 of the Constitution.
Submissions of Mr. Gopal Sankaranarayanan (intervenor)
20. Mr. Gopal Sankaranarayanan, appearing on behalf of intervenor
submits that Section 6-A of the DSPE Act breaches the basic feature of rule
of law. He argues that the basic structure test can be applied to the
statutes as well. By enactment of Section 6-A, the rule of law has suffered
a two-fold violation: (i) resurrection of the single directive in the form
of legislation without in any way removing the basis of the Vineet Narain1
judgment, and (ii) impediment of the due process (criminal investigation)
by imposing a condition at the threshold. In this regard, he has relied
upon decisions of this Court in State of Karnataka[18], L. Chandra
Kumar[19], Kuldip Nayar[20], Madras Bar Association[21], K.T. Plantation
(P) Ltd.[22], G.C. Kanungo[23], Indra Sawhney (2)[24], and I.R. Coelho2.
21. Mr. Gopal Sankaranarayanan, learned counsel for the intervenor,
also submits that there is an unreasonable classification among policemen
and among the accused and, in any case, the classification even if valid
has no nexus with the object sought to be achieved by Section 6-A, which is
apparently to protect the officers concerned. According to learned counsel,
Section 6-A is also inconsistent with the Cr.P.C. In this regard, he refers
to CBI Manual, Sections 19 and 22 of the PC Act, 1988 and Section 197 of
Cr.P.C.
Submissions of Mr. L. Nageswara Rao, ASG.
22. Mr. L. Nageswara Rao, learned Additional Solicitor General
stoutly defends Section 6-A. He submits that the rationale behind Section 6-
A of the DSPE Act can be seen in the reply to the debate in Parliament on
the Central Vigilance Commission Bill by the then Union Minister of Law and
Justice, Mr. Arun Jaitley. The provision is defended on the ground that
those who are in decision making positions, those who have to exercise
discretion and those who have to take vital decisions could become target
of frivolous complaints and need to be protected. Therefore, some screening
mechanism must be put into place whereby serious complaints would be
investigated and frivolous complaints can be thrown out. If such protection
is not given to senior decision makers, anyone can file a complaint and the
CBI or the police can raid the houses of such senior officers. This may
affect governance inasmuch as instead of tendering honest advice to
political executives, the senior officers at the decision-making level
would only give safe and non-committal advice. He argues that the object of
Section 6-A is to provide screening mechanism to filter out frivolous or
motivated investigation that could be initiated against senior officers to
protect them from harassment and to enable them to take decision without
fear. In this regard, the legal principles enunciated in K. Veeraswami[25]
were strongly pressed into service by Mr. L. Nageswara Rao.
23. It is argued by the learned Additional Solicitor General that
Section 6-A is not an absolute bar because it does not prohibit
investigation against senior government servants as such. It only provides
a filter or pre-check so that the Government can ensure that senior
officers at decision-making level are not subjected to unwarranted
harassment.
24. Emphasizing that the Central Government is committed to weeding
out vice of corruption, learned Additional Solicitor General submits that
requests for approval under Section 6-A are processed expeditiously after
the Government of India had constituted a Group of Ministers to consider
certain measures that could be taken by Government to tackle corruption and
the Group of Ministers suggested the measures to ensure that the requests
received from CBI under Section 6-A are examined on priority and with
objectivity.
25. Mr. L. Nageswara Rao, learned Additional Solicitor General
submits that arbitrariness and unreasonableness cannot by themselves be a
ground to strike down legislation. With reference to the decision of this
Court in E.P. Royappa[26] he argues that while proposing a new dimension of
arbitrariness as an anti-thesis to equality in Article 14, the Court used
arbitrariness to strike down administrative action and not as a ground to
test legislations. He submits that in Maneka Gandhi[27] the Court has not
held that arbitrariness by itself is a ground for striking down
legislations under Article 14. Ajay Hasia[28], learned Additional Solicitor
General contends, also does not make arbitrariness a ground to strike down
legislation. Distinguishing Malpe Vishwanath Acharya[29], he submits that
this Court used the classification test to hold legislation to be arbitrary
and the provision of standard rent in Bombay Rent Control Act was struck
down as having become unreasonable due to passage of time. Learned
Additional Solicitor General also distinguished Mardia Chemicals Ltd[30].
He vehemently contends that Courts cannot strike down legislations for
being arbitrary and unreasonable so as to substitute their own wisdom for
that of the legislature.
26. Mr. L. Nageswara Rao submits that wisdom of legislature cannot
be gone into for testing validity of a legislation and, apart from
constitutional limitations, no law can be struck down on the ground that it
is unreasonable or unjust. In this regard, he relies upon Kesavananda
Bharati[31]. He also referred to In re. Special Courts Bill, 197812, which
explained the principles enshrined in Article 14. In support of principle
that legislations can be declared invalid or unconstitutional only on two
grounds: (a) lack of legislative competence, and (b) violation of any
fundamental rights or any provision of the Constitution, learned Additional
Solicitor General relies upon Kuldip Nayar20. He also relies upon Ashoka
Kumar Thakur[32] in support of the proposition that legislation cannot be
challenged simply on the ground of unreasonableness as that by itself does
not constitute a ground. He submits that a Constitution Bench in K.T.
Plantation (P) Ltd.22 has held that plea of unreasonableness,
arbitrariness, proportionality, etc., always raises an element of
subjectivity on which Court cannot strike down a statute or a statutory
provision. Unless a constitutional infirmity is pointed out, a legislation
cannot be struck down by just using the word ‘arbitrary’. In this regard,
he heavily relies upon the decisions of this Court in In re. Natural
Resources Allocation[33], McDowell[34] and Rakesh Kohli[35]. The decision
of the US Supreme Court in Heller[36] is also cited by the learned
Additional Solicitor General in support of the proposition that Court
should not sit as super legislature over the wisdom or desirability of
legislative policy.
27. Mr. L. Nageswara Rao, learned Additional Solicitor General
argues that rule of law cannot be a ground for invalidating legislations
without reference to the Constitution. He submits that rule of law is not
a concept above the Constitution. Relying upon Indira Nehru Gandhi[37],
learned Additional Solicitor General argues that meaning and constituent
elements of rule of law must be gathered from the enacting provisions of
the Constitution; vesting discretionary powers in the Government is not
contrary to the rule of law. Moreover, he submits that exceptions to the
procedure in Cr.P.C. cannot be violative of Articles 14 and 21 and such
exceptions cannot be termed as violating the rule of law. In this regard,
learned Additional Solicitor General refers to Section 197 of Cr.P.C. and
relies upon Matajog Dobey[38], wherein this Court upheld constitutional
validity of Section 197 and held that the said provision was not violative
of Article 14. He also referred to Section 187 of Cr.P.C., Section 6 of
the Armed Forces (Special Provisions) Act, 1958 and Section 187-A of the
Sea Customs Act and submitted that these provisions have been held to be
constitutionally valid by this Court. Naga People’s Movement of Human
Rights[39] was cited by learned Additional Solicitor General wherein
Section 6 of the Armed Forces (Special Provisions) Act, 1958 was held
constitutional and Manhar Lal Bhogilal[40] was cited wherein Section 187-A
of the Sea Customs Act was held valid. Learned Additional Solicitor
General has also referred to Section 42 of the Food Safety and Standards
Act, 2006, Section 50 of the Prevention of Terrorism Act, 2002, Section 12
of the Suppression of Unlawful Acts Against Safety Of Maritime Navigation
And Fixed Platforms On Continental Shelf Act, 2002, Section 23 of the
Maharashtra Control of Organised Crime Act, 1999, Section 45 of the
Unlawful Activities (Prevention) Act, 1967, Section 20-A of the Terrorist
and Disruptive Activities (Prevention) Act, 1987, Section 137 of the
Customs Act, 1962, Section 11 of the Central Sales Tax Act, 1956, Section 7
of the Explosive Substances Act, 1908, Section 20 of the Prevention of Food
Adulteration Act, 1954, Section 23 of Lokpal and Lokayuktas Act, 2013,
Section 11 of Cotton Ginning and Pressing Factories Act, 1925, Section 12
of Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, Section 16 of
Gujarat Electricity Supply Undertakings (Acquisition) Act, 1969, Section 24
of Karnataka Control of Organized Crimes Act, 2000 and Section 9 of Bihar
Non-Government Educational Institution (Taking Over) Act, 1988 to
demonstrate that there are large number of provisions where permission of
the Government is required before taking cognizance or for institution of
an offence.
28. Learned Additional Solicitor General submits that Section 6-A
satisfies the test of reasonable classification. The public servants of
the level of Joint Secretary and above take policy decisions and,
therefore, there is an intelligible differentia. As they take policy
decisions, there is a need to protect them from frivolous inquiries and
investigation so that policy making does not suffer. Thus, there is
rational nexus with the object sought to be achieved. In this regard,
learned Additional Solicitor General has relied upon the decisions of this
Court in Ram Krishna Dalmia[41], Union of India[42] and Re: Special Courts
Bill, 197812. He also referred to the proceedings of the Joint
Parliamentary Committee, Law Minister’s Speech, the Government of India
(Transaction of Business) Rules and the Central Secretariat Manual of
Procedure.
29. Mr. L. Nageswara Rao submits that conferment of unbridled / un-
canalized power on the executive cannot be a ground for striking down
legislation as being violative of Article 14. Mere possibility of abuse of
power cannot invalidate a law. He cited the judgments of this Court in Re
Special Courts Bill, 197812, N.B. Khare[43], Mafatlal Industries[44] and
Sushil Kumar Sharma[45].
30. Learned Additional Solicitor General submits that conferment of
power on high authority reduces the possibility of its abuse to minimum.
In support of this submission, learned Additional Solicitor General relies
upon the decision of this Court in Maneka Gandhi27, Matajog Dubey38, V.C.
Shukla[46] and V.C.Shukla (IInd)[47]. He also submits that absence of
guidelines can only make the exercise of power susceptible to challenge and
not the legislation. In this regard, Pannalal Binjraj[48] and Jyoti
Pershad[49] are cited by him.
Submissions of Mr. K.V. Viswanathan, ASG
31. Mr. K.V. Viswanathan, learned Additional Solicitor General
submits that there is presumption of constitutionality and mutual respect
inherent in doctrine of separation of powers. He relies upon Bihar
Distillery Ltd.[50].
32. Mr. K.V. Viswanathan, learned Additional Solicitor General
referred to Sections 7, 11 and 13 of the PC Act, 1988 in order to show that
all these provisions relate to discharge of official functions. The
officers above the Joint Secretary level are bestowed with crucial decision
making responsibilities. Citing Kripalu Shankar[51] and the speech of the
then Minister of Law and Justice, he submits that people in decision making
process need to be given an environment to take decisions without any undue
extraneous pressure. He relies upon P. Sirajuddin[52] to highlight the
observations of this Court that lodging of FIR against a government
official especially, one who occupies top position in a department, even if
baseless, would do incalculable harm not only to the officer in particular,
but to the department he belongs to, in general.
33. Mr. K.V. Viswanathan has highlighted that corruption has two
aspects: (a) aspect related to decision making – abuse of position,
pecuniary loss to the Government etc. and (b) aspect of illegal pecuniary
gain – bribery etc. That abuse of position in order to come within the
mischief of corruption must necessarily be dishonest so that it may be
proved that the officer caused deliberate loss to the department. Mere
violation of codal provisions, or ordinary norms of procedural behaviour
does not amount to corruption. He cites decisions of this Court in S.P.
Bhatnagar[53], Major S. K. Kale[54], C. Chenga Reddy[55] and Abdulla
Mohammed Pagarkar[56].
34. Learned Additional Solicitor General submits that the State is
the first victim of corruption and the executive is in the best position to
adjudge whether it has been a victim of corruption. Section 6-A has been
enacted to protect the decision making process of the executive from undue
harassment and exercise of police powers by CBI. He cites the judgment of
this Court in A.R. Antulay[57].
35. Mr. K.V. Viswanathan has referred to other provisions under law
providing for the aggrieved authority to take a decision whether the
offence has been made out or not. In this regard, he has invited our
attention to Section 195 of Cr.P.C. and the decision of this Court in Patel
Laljibhai Somabhai[58]. He also referred to Section 340 of Cr.P.C. which
allows the court to adjudge whether perjury was committed, and if it was,
then whether it required prosecution. He relies upon the decision of this
Court in Iqbal Singh Marwah[59].
36. Citing Manohar Lal Sharma4, learned Additional Solicitor
General submits that even in a court monitored investigation, the concerned
officer could approach the concerned court for an opportunity to be heard.
Moreover, in Manohar Lal Sharma4, this court has noticed the office
memorandum dated 26.09.2011 approving the recommendations made by the Group
of Ministers which provides inter alia for the concerned authority to give
reasons for granting/rejecting sanction under Section 6-A. He submits that
when there is denial of sanction order under Section 6-A, such order of the
Central Government could be challenged in a writ petition before a High
Court. He says that United Nations recognizes such a protection as Section
6-A in Article 30 of the UN Convention against corruption.
Principles applicable to Article 14
37. Article 14 reads:
“14. Equality before law.—The State shall not deny to any person
equality before the law or the equal protection of the laws
within the territory of India.”
38. The first part of Article 14, which was adopted from the Irish
Constitution, is a declaration of equality of the civil rights of all
persons within the territories of India. It enshrines a basic principle of
republicanism. The second part, which is a corollary of the first and is
based on the last clause of the first section of the Fourteenth Amendment
of the American Constitution, enjoins that equal protection shall be
secured to all such persons in the enjoyment of their rights and liberties
without discrimination of favouritism. It is a pledge of the protection of
equal laws, that is, laws that operate alike on all persons under like
circumstances12.
39. Article 14 of the Constitution incorporates concept of equality
and equal protection of laws. The provisions of Article 14 have engaged
the attention of this Court from time to time. The plethora of cases
dealing with Article 14 has culled out principles applicable to aspects
which commonly arise under this Article. Among those, may be mentioned,
the decisions of this Court in Chiranjit Lal Chowdhuri[60], F.N.
Balsara[61], Anwar Ali Sarkar[62], Kathi Raning Rawat[63], Lachmandas
Kewalram Ahuja[64], Syed Qasim Razvi[65], Habeeb Mohamed[66], Kedar Nath
Bajoria[67] and innovated to even associate the members of this Court to
contribute their V.M. Syed Mohammad & Company[68]. The most of the above
decisions were considered in Budhan Choudhry[69]. This Court exposited
the ambit and scope of Article 14 in Budhan Choudhry69 as follows:
“It is now well-established that while article 14 forbids class
legislation, it does not forbid reasonable classification for the
purposes of legislation. In order, however, to pass the test of
permissible classification two conditions must be fulfilled, namely,
(i) that the classification must be founded on an intelligible
differentia which distinguishes persons or things that are grouped
together from others left out of the group, and (ii) that differentia
must have a rational relation to the object sought to be achieved by
the statute in question. The classification may be founded on
different bases; namely, geographical, or according to objects or
occupations or the like. What is necessary is that there must be a
nexus between the basis of classification and the object of the Act
under consideration. It is also well-established by the decisions of
this Court that article 14 condemns discrimination not only by a
substantive law but also by a law of procedure.”
40. In Ram Krishna Dalmia41, the Constitution Bench of five Judges
further culled out the following principles enunciated in the above cases -
“(a) that a law may be constitutional even though it relates to a
single individual if, on account of some special circumstances or
reasons applicable to him and not applicable to others, that single
individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the
constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of the
constitutional principles;
(c) that it must be presumed that the legislature understands and
correctly appreciates the need of its own people, that its laws are
directed to problems made manifest by experience and that its
discriminations are based on adequate grounds;
(d) that the legislature is free to recognise degrees of harm and
may confine its restrictions to those cases where the need is deemed
to be the clearest;
(e) that in order to sustain the presumption of constitutionality
the court may take into consideration matters of common knowledge,
matters of common report, the history of the times and may assume
every state of facts which can be conceived existing at the time of
legislation; and
(f) that while good faith and knowledge of the existing conditions
on the part of a legislature are to be presumed, if there is nothing
on the face of the law or the surrounding circumstances brought to the
notice of the court on which the classification may reasonably be
regarded as based, the presumption of constitutionality cannot be
carried to the extent of always holding that there must be some
undisclosed and unknown reasons for subjecting certain individuals or
corporations to hostile or discriminating legislation.”
41. In Ram Krishna Dalmia41, it was emphasized that the above
principles will have to be constantly borne in mind by the court when it is
called upon to adjudge the constitutionality of any particular law attacked
as discriminatory and violative of the equal protection of laws.
42. Having culled out the above principles, the Constitution Bench
in Ram Krishna Dalmia41, further observed that statute which may come up
for consideration on the question of its validity under Article 14 of the
Constitution may be placed in one or other of the following five classes:
“(i) A statute may itself indicate the persons or things to whom its
provisions are intended to apply and the basis of the classification
of such persons or things may appear on the face of the statute or may
be gathered from the surrounding circumstances known to or brought to
the notice of the court. In determining the validity or otherwise of
such a statute the court has to examine whether such classification is
or can be reasonably regarded as based upon some differentia which
distinguishes such persons or things grouped together from those left
out of the group and whether such differentia has a reasonable
relation to the object sought to be achieved by the statute, no matter
whether the provisions of the statute are intended to apply only to a
particular person or thing or only to a certain class of persons or
things. Where the court finds that the classification satisfies the
tests, the court will uphold the validity of the law.
(ii) A statute may direct its provisions against one individual
person or thing or to several individual persons or things but no
reasonable basis of classification may appear on the face of it or be
deducible from the surrounding circumstances, or matters of common
knowledge. In such a case the court will strike down the law as an
instance of naked discrimination.
(iii) A statute may not make any classification of the persons
or things for the purpose of applying its provisions but may leave it
to the discretion of the Government to select and classify persons or
things to whom its provisions are to apply. In determining the
question of the validity or otherwise of such a statute the court will
not strike down the law out of hand only because no classification
appears on its face or because a discretion is given to the Government
to make the selection or classification but will go on to examine and
ascertain if the statute has laid down any principle or policy for the
guidance of the exercise of discretion by the Government in the matter
of the selection or classification. After such scrutiny the court will
strike down the statute if it does not lay down any principle or
policy for guiding the exercise of discretion by the Government in the
matter of selection or classification, on the ground that the statute
provides for the delegation of arbitrary and uncontrolled power to the
Government so as to enable it to discriminate between persons or
things similarly situate and that, therefore, the discrimination is
inherent in the statute itself. In such a case the court will strike
down both the law as well as the executive action taken under such
law.
(iv) A statute may not make a classification of the persons or things
for the purpose of applying its provisions and may leave it to the
discretion of the Government to select and classify the persons or
things to whom its provisions are to apply but may at the same time
lay down a policy or principle for the guidance of the exercise of
discretion by the Government in the matter of such selection or
classification.
(v) A statute may not make a classification of the persons or things
to whom their provisions are intended to apply and leave it to the
discretion of the Government to select or classify the persons or
things for applying those provisions according to the policy or the
principle laid down by the statute itself for guidance of the exercise
of discretion by the Government in the matter of such selection or
classification. If the Government in making the selection or
classification does not proceed on or follow such policy or principle,
then in such a case the executive action but not the statute should be
condemned as unconstitutional.”
43. In Vithal Rao17, the five-Judge Constitution Bench had an
occasion to consider the test of reasonableness under Article 14 of the
Constitution. It noted that the State can make a reasonable classification
for the purpose of legislation and that the classification in order to be
reasonable must satisfy two tests: (i) the classification must be founded
on intelligible differentia and (ii) the differentia must have a rational
relation with the object sought to be achieved by the legislation in
question. The Court emphasized that in this regard object itself should be
lawful and it cannot be discriminatory. If the object is to discriminate
against one section of the minority, the discrimination cannot be justified
on the ground that there is a reasonable classification because it has
rational relation to the object sought to be achieved.
44. The constitutionality of Special Courts Bill, 1978 came up for
consideration in re. Special Courts Bill, 197812 as the President of India
made a reference to this Court under Article 143(1) of the Constitution for
consideration of the question whether the “Special Courts Bill” or any of
its provisions, if enacted would be constitutionally invalid. The seven
Judge Constitution Bench dealt with the scope of Article 14 of the
Constitution. Noticing the earlier decisions of this Court in Budhan
Choudhry69, Ram Krishna Dalmia41, C.I. Emden[70], Kangsari Haldar[71],
Jyoti Pershad49 and Ambica Mills Ltd.[72], in the majority judgment the
then Chief Justice Y.V. Chandrachud, inter alia, exposited the following
propositions relating to Article 14:
“(1) xxx xxx xxx
(2) The State, in the exercise of its governmental power, has of
necessity to make laws operating differently on different groups or
classes of persons within its territory to attain particular ends in
giving effect to its policies, and it must possess for that purpose
large powers of distinguishing and classifying persons or things to be
subjected to such laws.
(3) The constitutional command to the State to afford equal protection
of its laws sets a goal not attainable by the invention and
application of a precise formula. Therefore, classification need not
be constituted by an exact or scientific exclusion or inclusion of
persons or things. The courts should not insist on delusive exactness
or apply doctrinaire tests for determining the validity of
classification in any given case. Classification is justified if it is
not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is not that
the same rules of law should be applicable to all persons within the
Indian territory or that the same remedies should be made available to
them irrespective of differences of circumstances. It only means that
all persons similarly circumstanced shall be treated alike both in
privileges conferred and liabilities imposed. Equal laws would have to
be applied to all in the same situation, and there should be no
discrimination between one person and another if as regards the
subject-matter of the legislation their position is substantially the
same.
(5) By the process of classification, the State has the power of
determining who should be regarded as a class for purposes of
legislation and in relation to a law enacted on a particular subject.
This power, no doubt, in some degree is likely to produce some
inequality; but if a law deals with the liberties of a number of well-
defined classes, it is not open to the charge of denial of equal
protection on the ground that it has no application to other persons.
Classification thus means segregation in classes which have a
systematic relation, usually found in common properties and
characteristics. It postulates a rational basis and does not mean
herding together of certain persons and classes arbitrarily.
(6) The law can make and set apart the classes according to the needs
and exigencies of the society and as suggested by experience. It can
recognise even degree of evil, but the classification should never be
arbitrary, artificial or evasive.
(7) The classification must not be arbitrary but must be rational,
that is to say, it must not only be based on some qualities or
characteristics which are to be found in all the persons grouped
together and not in others who are left out but those qualities or
characteristics must have a reasonable relation to the object of the
legislation. In order to pass the test, two conditions must be
fulfilled, namely, (1) that the classification must be founded on an
intelligible differentia which distinguishes those that are grouped
together from others and (2) that that differentia must have a
rational relation to the object sought to be achieved by the Act.
(8) The differentia which is the basis of the classification and the
object of the Act are distinct things and what is necessary is that
there must be a nexus between them. In short, while Article 14 forbids
class discrimination by conferring privileges or imposing liabilities
upon persons arbitrarily selected out of a large number of other
persons similarly situated in relation to the privileges sought to be
conferred or the liabilities proposed to be imposed, it does not
forbid classification for the purpose of legislation, provided such
classification is not arbitrary in the sense above mentioned.
(9) If the legislative policy is clear and definite and as an
effective method of carrying out that policy a discretion is vested by
the statute upon a body of administrators or officers to make
selective application of the law to certain classes or groups of
persons, the statute itself cannot be condemned as a piece of
discriminatory legislation. In such cases, the power given to the
executive body would import a duty on it to classify the subject-
matter of legislation in accordance with the objective indicated in
the statute. If the administrative body proceeds to classify persons
or things on a basis which has no rational relation to the objective
of the Legislature, its action can be annulled as offending against
the equal protection clause. On the other hand, if the statute itself
does not disclose a definite policy or objective and it confers
authority on another to make selection at its pleasure, the statute
would be held on the face of it to be discriminatory, irrespective of
the way in which it is applied.
(10) Whether a law conferring discretionary powers on an
administrative authority is constitutionally valid or not should not
be determined on the assumption that such authority will act in an
arbitrary manner in exercising the discretion committed to it. Abuse
of power given by law does occur; but the validity of the law cannot
be contested because of such an apprehension. Discretionary power is
not necessarily a discriminatory power.
(11) Classification necessarily implies the making of a distinction or
discrimination between persons classified and those who are not
members of that class. It is the essence of a classification that upon
the class are cast duties and burdens different from those resting
upon the general public. Indeed, the very idea of classification is
that of inequality, so that it goes without saying that the mere fact
of inequality in no manner determines the matter of constitutionality.
(12) Whether an enactment providing for special procedure for the
trial of certain offences is or is not discriminatory and violative of
Article 14 must be determined in each case as it arises, for, no
general rule applicable to all cases can safely be laid down. A
practical assessment of the operation of the law in the particular
circumstances is necessary.
(13) A rule of procedure laid down by law comes as much within the
purview of Article 14 as any rule of substantive law and it is
necessary that all litigants, who are similarly situated, are able to
avail themselves of the same procedural rights for relief and for
defence with like protection and without discrimination.”
45. In Nergesh Meerza16, the three-Judge Bench of this Court while
dealing with constitutional validity of Regulation 46(i)(c) of Air India
Employees’ Service Regulations (referred to as ‘A.I. Regulations’) held
that certain conditions mentioned in the Regulations may not be violative
of Article 14 on the ground of discrimination but if it is proved that the
conditions laid down are entirely unreasonable and absolutely arbitrary,
then the provisions will have to be struck down. With regard to due
process clause in the American Constitution and Article 14 of our
Constitution, this Court referred to Anwar Ali Sarkar62, and observed that
the due process clause in the American Constitution could not apply to our
Constitution. The Court also referred to A.S. Krishna[73] wherein
Venkatarama Ayyar, J. observed: “The law would thus appear to be based on
the due process clause, and it is extremely doubtful whether it can have
application under our Constitution.”
46. In D.S. Nakara7, the Constitution Bench of this Court had an
occasion to consider the scope, content and meaning of Article 14. The
Court referred to earlier decisions of this Court and in para 15 (pages 317-
318), the Court observed:
“Thus the fundamental principle is that Article 14 forbids class
legislation but permits reasonable classification for the purpose of
legislation which classification must satisfy the twin tests of
classification being founded on an intelligible differentia which
distinguishes persons or things that are grouped together from those
that are left out of the group and that differentia must have a
rational nexus to the object sought to be achieved by the statute in
question.”
47. In E.P. Royappa26, it has been held by this Court that the
basic principle which informs both Articles 14 and 16 are equality and
inhibition against discrimination. This Court observed in para 85 (page 38
of the report) as under:
“….From a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn enemies;
one belongs to the rule of law in a republic while the other, to the
whim and caprice of an absolute monarch. Where an act is arbitrary, it
is implicit in it that it is unequal both according to political logic
and constitutional law and is therefore violative of Article 14, and
if it affects any matter relating to public employment, it is also
violative of Article 16. Articles 14 and 16 strike at arbitrariness in
State action and ensure fairness and equality of treatment.”
Court’s approach
48. Where there is challenge to the constitutional validity of a
law enacted by the legislature, the Court must keep in view that there is
always a presumption of constitutionality of an enactment, and a clear
transgression of constitutional principles must be shown. The fundamental
nature and importance of the legislative process needs to be recognized by
the Court and due regard and deference must be accorded to the legislative
process. Where the legislation is sought to be challenged as being
unconstitutional and violative of Article 14 of the Constitution, the Court
must remind itself to the principles relating to the applicability of
Article 14 in relation to invalidation of legislation. The two dimensions
of Article 14 in its application to legislation and rendering legislation
invalid are now well recognized and these are (i) discrimination, based on
an impermissible or invalid classification and (ii) excessive delegation of
powers; conferment of uncanalised and unguided powers on the executive,
whether in the form of delegated legislation or by way of conferment of
authority to pass administrative orders – if such conferment is without any
guidance, control or checks, it is violative of Article 14 of the
Constitution. The Court also needs to be mindful that a legislation does
not become unconstitutional merely because there is another view or because
another method may be considered to be as good or even more effective, like
any issue of social, or even economic policy. It is well settled that the
courts do not substitute their views on what the policy is.
Consideration
49. Several objections have been raised against this provision in
the context of Article 14. First, we shall consider the challenge against
the validity of classification which Section 6-A(1) makes and the lack of
relationship between the basis of that classification and the object which
it seeks to achieve.
50. The impugned provision, viz., Section 6-A came to be enacted
after the decision of this Court in Vineet Narain1. It is important to
bear in mind that the three-Judge Bench of this Court in Vineet Narain1 was
directly concerned with constitutional validity of the Single Directive
No. 4.7(3), which to the extent relevant for the present purposes, reads:
“4.7(3)(i) In regard to any person who is or has been a decision-
making level officer (Joint Secretary or equivalent or above in the
Central Government or such officers as are or have been on deputation
to a Public Sector Undertaking; officers of the Reserve Bank of India
of the level equivalent to Joint Secretary or above in the Central
Government, Executive Directors and above of the SEBI and Chairman &
Managing Director and Executive Directors and such of the bank
officers who are one level below the Board of Nationalised Banks),
there should be prior sanction of the Secretary of the
Ministry/Department concerned before SPE takes up any enquiry (PE or
RC), including ordering search in respect of them. Without such
sanction, no enquiry shall be initiated by the SPE.
(ii) xxx xxx xxx
(iii) xxx xxx xxx
(iv) xxx xxx xxx.”
51. The above provision contained in Single Directive 4.7(3)(i) was
sought to be justified by the learned Attorney General in Vineet Narain1 on
the ground that the officers at the decision making level need the
protection against malicious or vexatious investigations in respect of
honest decisions taken by them. Learned Attorney General in Vineet Narain1
submitted that such a structure to regulate the grant of sanction by a high
authority together with a time-frame to avoid any delay was sufficient to
make the procedure reasonable and to provide for an objective decision
being taken for the grant of sanction within the specified time. It was
urged that refusal of sanction would enable judicial review of that
decision in case of any grievance.
52. This Court in Vineet Narain1 took notice of the report
submitted by IRC, which recorded:
“In the past several years, there has been progressive increase in
allegations of corruption involving public servants. Understandably,
cases of this nature have attracted heightened media and public
attention. A general impression appears to have gained ground that the
Central investigating agencies concerned are subject to extraneous
pressures and have been indulging in dilatory tactics in not bringing
the guilty to book. The decisions of higher courts to directly monitor
investigations in certain cases have added to the aforesaid belief.”
53. The Court then discussed the earlier decisions of this Court in
J.A.C. Saldanha[74] and K. Veeraswami25 and also the provisions of the DSPE
Act and held that: “Powers of investigation which are governed by the
statutory provisions and they cannot be curtailed by any executive
instruction.” Having said that, this Court stated that the law did not
classify offenders differently for treatment thereunder, including
investigation of offences and prosecution for offences, according to their
status in life. Every person accused of committing the same offence is to
be dealt with in the same manner in accordance with law, which is equal in
its application to everyone. The Single Directive is applicable only to
certain persons above the specified level who are described as decision-
making officers. Negativing that any distinction can be made for them for
the purpose of investigation of an offence of which they are accused, this
Court in paragraphs 45 and 46 held as under:
“45. Obviously, where the accusation of corruption is based on direct
evidence and it does not require any inference to be drawn dependent
on the decision-making process, there is no rational basis to classify
them differently. In other words, if the accusation be of bribery
which is supported by direct evidence of acceptance of illegal
gratification by them, including trap cases, it is obvious that no
other factor is relevant and the level or status of the offender is
irrelevant. It is for this reason that it was conceded that such
cases, i.e., of bribery, including trap cases, are outside the scope
of the Single Directive. After some debate at the Bar, no serious
attempt was made by the learned Attorney General to support inclusion
within the Single Directive of cases in which the offender is alleged
to be in possession of disproportionate assets. It is clear that the
accusation of possession of disproportionate assets by a person is
also based on direct evidence and no factor pertaining to the
expertise of decision-making is involved therein. We have, therefore,
no doubt that the Single Directive cannot include within its ambit
cases of possession of disproportionate assets by the offender. The
question now is only with regard to cases other than those of bribery,
including trap cases, and of possession of disproportionate assets
being covered by the Single Directive.
46. There may be other cases where the accusation cannot be supported
by direct evidence and is a matter of inference of corrupt motive for
the decision, with nothing to prove directly any illegal gain to the
decision-maker. Those are cases in which the inference drawn is that
the decision must have been made for a corrupt motive because the
decision could not have been reached otherwise by an officer at that
level in the hierarchy. This is, therefore, an area where the opinion
of persons with requisite expertise in decision-making of that kind is
relevant and, may be even decisive in reaching the conclusion whether
the allegation requires any investigation to be made. In view of the
fact that the CBI or the police force does not have the expertise
within its fold for the formation of the requisite opinion in such
cases, the need for the inclusion of such a mechanism comprising of
experts in the field as a part of the infrastructure of the CBI is
obvious, to decide whether the accusation made discloses grounds for a
reasonable suspicion of the commission of an offence and it requires
investigation. In the absence of any such mechanism within the
infrastructure of the CBI, comprising of experts in the field who can
evaluate the material for the decision to be made, introduction
therein of a body of experts having expertise of the kind of business
which requires the decision to be made, can be appreciated. But then,
the final opinion is to be of the CBI with the aid of that advice and
not that of anyone else. It would be more appropriate to have such a
body within the infrastructure of the CBI itself.”
54. This Court, accordingly, declared Single Directive 4.7(3)(i)
being invalid.
55. Section 6-A replicates Single Directive 4.7(3)(i), which was
struck down by this Court. The only change is that executive instruction
is replaced by the legislation. Now, insofar as the vice that was pointed
out by this Court that powers of investigation which are governed by the
statutory provisions under the DSPE Act and they cannot be estopped or
curtailed by any executive instruction issued under Section 4(1) of that
Act is concerned, it has been remedied. But the question remains, and that
is what has been raised in these matters, whether Section 6-A meets the
touchstone of Article 14 of the Constitution.
56. Can classification be made creating a class of the government
officers of the level of Joint Secretary and above level and certain
officials in public sector undertakings for the purpose of
inquiry/investigation into an offence alleged to have been committed under
the PC Act, 1988? Or, to put it differently, can classification be made on
the basis of the status/position of the public servant for the purpose of
inquiry/investigation into the allegation of graft which amounts to an
offence under the PC Act, 1988? Can the Legislature lay down different
principles for investigation/inquiry into the allegations of corruption for
the public servants who hold a particular position? Is such classification
founded on sound differentia? To answer these questions, we should eschew
the doctrinaire approach. Rather, we should test the validity of impugned
classification by broad considerations having regard to the legislative
policy relating to prevention of corruption enacted in the PC Act, 1988 and
the powers of inquiry/investigation under the DSPE Act.
57. The Constitution permits the State to determine, by the process
of classification, what should be regarded as a class for purposes of
legislation and in relation to law enacted on a particular subject. There
is bound to be some degree of inequality when there is segregation of one
class from the other. However, such segregation must be rational and not
artificial or evasive. In other words, the classification must not only be
based on some qualities or characteristics, which are to be found in all
persons grouped together and not in others who are left out but those
qualities or characteristics must have a reasonable relation to the object
of the legislation. Differentia which is the basis of classification must
be sound and must have reasonable relation to the object of the
legislation. If the object itself is discriminatory, then explanation that
classification is reasonable having rational relation to the object sought
to be achieved is immaterial.
58. It seems to us that classification which is made in Section 6-A
on the basis of status in the Government service is not permissible under
Article 14 as it defeats the purpose of finding prima facie truth into the
allegations of graft, which amount to an offence under the PC Act, 1988.
Can there be sound differentiation between corrupt public servants based on
their status? Surely not, because irrespective of their status or position,
corrupt public servants are corrupters of public power. The corrupt public
servants, whether high or low, are birds of the same feather and must be
confronted with the process of investigation and inquiry equally. Based on
the position or status in service, no distinction can be made between
public servants against whom there are allegations amounting to an offence
under the PC Act, 1988.
59. Corruption is an enemy of the nation and tracking down corrupt
public servants and punishing such persons is a necessary mandate of the PC
Act, 1988. It is difficult to justify the classification which has been
made in Section 6-A because the goal of law in the PC Act, 1988 is to meet
corruption cases with a very strong hand and all public servants are warned
through such a legislative measure that corrupt public servants have to
face very serious consequences. In the words of Mathew, J. in Ambica Mills
Ltd.72, “The equal protection of the laws is a pledge of the protection of
equal laws. But laws may classify...... A reasonable classification is one
which includes all who are similarly situated and none who are not”.
Mathew, J., while explaining the meaning of the words, ‘similarly situated’
stated that we must look beyond the classification to the purpose of the
law. The purpose of a law may be either the elimination of a public
mischief or the achievement of some positive public good. The
classification made in Section 6-A neither eliminates public mischief nor
achieves some positive public good. On the other hand, it advances public
mischief and protects the crime-doer. The provision thwarts an
independent, unhampered, unbiased, efficient and fearless inquiry /
investigation to track down the corrupt public servants.
60. The essence of police investigation is skilful inquiry and
collection of material and evidence in a manner by which the
potential culpable individuals are not forewarned. The previous approval
from the Government necessarily required under Section 6-A would result in
indirectly putting to notice the officers to be investigated before
commencement of investigation. Moreover, if the CBI is not even
allowed to verify complaints by preliminary enquiry, how can the case move
forward? A preliminary enquiry is intended to ascertain whether a prima
facie case for investigation is made out or not. If CBI is prevented from
holding a preliminary enquiry, at the very threshold, a fetter is put to
enable the CBI to gather relevant material. As a matter of fact, the CBI
is not able to collect the material even to move the Government for the
purpose of obtaining previous approval from the Central Government.
61. It is important to bear in mind that as per the CBI Manual,
(Paragraph 9.10) a preliminary enquiry relating to allegations of bribery
and corruption should be limited to the scrutiny of records and
interrogation of bare minimum persons which being necessary to judge
whether there is any substance in the allegations which are being enquired
into and whether the case is worth pursuing further or not. Even this
exercise of scrutiny of records and gathering relevant information to find
out whether the case is worth pursuing further or not is not possible. In
the criminal justice system, the inquiry and investigation into an offence
is the domain of the police. The very power of CBI to enquire and
investigate into the allegations of bribery and corruption against a
certain class of public servants and officials in public undertakings is
subverted and impinged by Section 6-A.
62. The justification for having such classification is founded
principally on the statement made by the then Minister of Law and Justice
that if no protection is to be given to the officers, who take the
decisions and make discretions, then anybody can file a complaint and an
inspector of the CBI or the police can raid their houses any moment. If
this elementary protection is not given to the senior decision makers, they
would not tender honest advice to political executives. Such senior
officers then may play safe and give non-committal advice affecting the
governance. The justification for classification in Section 6-A is also put
forth on the basis of the report of the Joint Parliamentary Committee to
which CVC Bill, 1999 was referred particularly at the question relating to
Clause 27 regarding amendment of the DSPE Act (the provision which is now
Section 6-A). The Joint Parliamentary Committee, in this regard noted as
follows:
“The Committee note that many witnesses who appeared before the
Committee had expressed the need to protect the bonafide actions
at the decision making level. At present there is no provision
in the Bill for seeking prior approval of the Commission or the
head of the Department etc. for registering a case against a
person of the decision making level. As such, no protection is
available to the persons at the decision making level. In this
regard, the Committee note that earlier, the prior approval of
the Government was required in the form of a ‘Single Directive’
which was set aside by the Supreme Court. The Committee feel
that such a protection should be restored in the same format
which was there earlier and desire that the power of giving
prior approval for taking action against a senior officer of the
decision making level should be vested with the Central
Government by making appropriate provision in the Act. The
Committee, therefore, recommend that Clause 27 of the Bill
accordingly amended so as to insert a new section 6A to the DSPE
Act, 1946, to this effect.”
63. As a matter of fact, the justification for Section 6-A which
has been put forth before us on behalf of the Central Government was the
justification for Single Directive 4.7(3)(i) in Vineet Narain1 as well.
However, the Court was unable to persuade itself with the same. In Vineet
Narain1 in respect of Single Directive 4.7(3)(i), the Court said that every
person accused of committing the same offence is to be dealt with in the
same manner in accordance with law, which is equal in its application to
everyone. We are in agreement with the above observation in Vineet Narain1,
which, in our opinion, equally applies to Section 6-A. In Vineet Narain1,
this Court did not accept the argument that the Single Directive is
applicable only to certain class of officers above the specified level who
are decision making officers and a distinction can be made for them for the
purpose of investigation of an offence of which they are accused. We are
also clearly of the view that no distinction can be made for certain class
of officers specified in Section 6-A who are described as decision making
officers for the purpose of inquiry/investigation into an offence under the
PC Act, 1988. There is no rational basis to classify the two sets of
public servants differently on the ground that one set of officers is
decision making officers and not the other set of officers. If there is an
accusation of bribery, graft, illegal gratification or criminal misconduct
against a public servant, then we fail to understand as to how the status
of offender is of any relevance. Where there are allegations against a
public servant which amount to an offence under the PC Act, 1988, no factor
pertaining to expertise of decision making is involved. Yet, Section 6-A
makes a distinction. It is this vice which renders Section 6-A violative of
Article 14. Moreover, the result of the impugned legislation is that the
very group of persons, namely, high ranking bureaucrats whose misdeeds
and illegalities may have to be inquired into, would decide
whether the CBI should even start an inquiry or investigation against them
or not. There will be no confidentiality and insulation of the
investigating agency from political and bureaucratic control and influence
because the approval is to be taken from the Central Government which
would involve leaks and disclosures at every stage.
64. It is true that sub-Section (2) of Section 6-A has taken care
of observations of this Court in Vineet Narain1 insofar as trap cases are
concerned. It also takes care of the infirmity pointed out by this Court
that in the absence of any statutory requirement of prior permission or
sanction for investigation, it cannot be imposed as a condition precedent
for initiation of investigation, but, Section 6-A continues to suffer from
the other two infirmities which this Court noted concerning Single
Directive, viz.; (a) where inference is to be drawn that the decision must
have been for corrupt motive and direct evidence is not there, the
expertise to take decision whether to proceed or not in such cases should
be with the CBI itself and not with the Central Government and (b) in any
event the final decision to commence investigation into the offences must
be of the CBI with the internal aid and advice and not of anybody else.
Section 6-A also suffers from the vice of classifying offenders
differently for treatment thereunder for inquiry and investigation of
offences, according to their status in life. Every person accused of
committing the same offence is to be dealt with in the same manner in
accordance with law, which is equal in its application to everyone.
65. Way back in 1993, the Central Government constituted a
Committee under the Chairmanship of the former Home Secretary (Shri N.N.
Vohra) to take stock of all available information about the activities of
the crime syndicates/mafia organizations, which had developed links with
and were being permitted by Government functionaries and political
personalities. In para 14.3 of the report, the Committee has observed that
linkages of crime syndicate with senior Government functionaries or
political leaders in the States or at the Centre could have a destabilizing
effect on the functioning of the Government. The report paints a
frightening picture of criminal-bureaucratic-political nexus – a network of
high level corruption. The impugned provision puts this nexus in a position
to block inquiry and investigation by CBI by conferring the power of
previous approval on the Central Government.
66. A class of Central Government employees has been created in
Section 6-A inasmuch as it offers protection to a class of the Government
officers of the level of Joint Secretary and above to whom DSPE Act applies
but no such protection is available to the officers of the same level, who
are posted in various States. This position is accepted by CBI. Mr.
Sidharth Luthra, learned Additional Solicitor General placed before us the
following questions and answers to clarify the legal position:
“Question No.1 : Whether an officer of the public sector bank /
public sector undertaking of Central Govt. in the
rank of Joint Secretary and above while posting in
the State and alleged to have committed an offence
under P.C. Act, can be investigated by State Police
or CBI?
Answer No.1 : Yes, both State Police and CBI have jurisdiction
under P.C. Act over such officers. The jurisdiction
of CBI is, however, subject to Section 6(A) of DSPE
Act and consent of the State Govt. u/s 6 of the DSPE
Act, 1946.
Question No.2 : Whether an employee of All India Service i.e. IPS,
IAS and Indian Forest Services while posted in the
State Govt. at the JS level and above can claim
protection under 6(A)?
Answer No.2 : No, as the very wording of Section 6(A) mentions only
the employees of the Central Govt.
Question No.3 : Whether in a Union Territory, the State Police and
the CBI will have concurrent jurisdiction over
employees of Central Govt. for PC Act offences?
Answer No.3 : Yes, both the State UT Police and CBI have
jurisdiction over Central Govt. employees under P.C.
Act. Section 6(A) of DSPE Act is operative for CBI
for officers of the level of JS and above.
Question No.4 : What will be the position regarding employees of the
Central Govt. in the Allied / Central Civil Services
such as Indian Revenue Service, Postal Service etc.
Who are working in the territory of the State but not
posted in the State?
Answer No.4 ; Yes, both State Police and CBI have jurisdiction
under P.C. Act over such officers. The jurisdiction
of CBI is, however, subject to Section 6(A) of DSPE
Act and consent of the State Govt. u/s 6 of the DSPE
Act, 1946.”
67. Can it be said that the classification is based on intelligible
differentia when one set of bureaucrats of Joint Secretary level and above
who are working with the Central Government are offered protection under
Section 6-A while the same level of officers who are working in the States
do not get protection though both classes of these officers are accused of
an offence under PC Act, 1988 and inquiry / investigation into such
allegations is to be carried out. Our answer is in the negative. The
provision in Section 6-A, thus, impedes tracking down the corrupt senior
bureaucrats as without previous approval of the Central Government, the CBI
cannot even hold preliminary inquiry much less an investigation into the
allegations. The protection in Section 6-A has propensity of shielding the
corrupt. The object of Section 6-A, that senior public servants of the
level of Joint Secretary and above who take policy decision must not be put
to any harassment, side-tracks the fundamental objective of the PC Act,
1988 to deal with corruption and act against senior public servants. The
CBI is not able to proceed even to collect the material to unearth prima
facie substance into the merits of allegations. Thus, the object of Section
6-A itself is discriminatory. That being the position, the discrimination
cannot be justified on the ground that there is a reasonable classification
because it has rational relation to the object sought to be achieved.
68. The signature tune in Vineet Narain1 is, “However high you may
be, the law is above you.” We reiterate the same. Section 6-A offends this
signature tune and effectively Article 14.
69. Undoubtedly, every differentiation is not a discrimination but
at the same time, differentiation must be founded on pertinent and real
differences as distinguished from irrelevant and artificial ones. A simple
physical grouping which separates one category from the other without any
rational basis is not a sound or intelligible differentia. The separation
or segregation must have a systematic relation and rational basis and the
object of such segregation must not be discriminatory. Every public servant
against whom there is reasonable suspicion of commission of crime or there
are allegations of an offence under the PC Act, 1988 has to be treated
equally and similarly under the law. Any distinction made between them on
the basis of their status or position in service for the purposes of
inquiry / investigation is nothing but an artificial one and offends
Article 14.
70. Office of public power cannot be the workshop of personal gain.
The probity in public life is of great importance. How can two public
servants against whom there are allegations of corruption or graft or bribe-
taking or criminal misconduct under the PC Act, 1988 can be made to be
treated differently because one happens to be a junior officer and the
other, a senior decision maker.
71. Corruption is an enemy of nation and tracking down corrupt
public servant, howsoever high he may be, and punishing such person is a
necessary mandate under the PC Act, 1988. The status or position of public
servant does not qualify such public servant from exemption from equal
treatment. The decision making power does not segregate corrupt officers
into two classes as they are common crime doers and have to be tracked
down by the same process of inquiry and investigation.
72. It is argued on behalf of the Central Government that now
office memorandum (dated 26.09.2011) approving the recommendations made by
the Group of Ministers has been issued which provides inter alia for quick
consideration of the request by the CBI for approval and also to give
reasons for granting / rejecting sanction under Section 6-A. It is
submitted that delay in disposal of the requests by the CBI is now taken
care of and if there is denial of sanction order under Section 6-A, such
order of the Central Government can be challenged in a writ petition before
the High Court. Such protection, it is submitted, is even recognized by
United Nations in Article 30 of the UN Convention against corruption. This
aspect has been considered by this Court in Manohar Lal Sharma4 to which we
shall refer appropriately a little later.
73. The PC Act, 1988 is a special statute and its preamble shows
that it has been enacted to consolidate and amend the law relating to the
prevention of corruption and for the matters connected therewith. It is
intended to make the corruption laws more effective by widening their
coverage and by strengthening the provisions. It came to be enacted
because Prevention of Corruption Act, 1947 as amended from time to time was
inadequate to deal with the offences of corruption effectively. The new Act
now seeks to provide for speedy trial of offences punishable under the Act
in public interest as the legislature had become aware of corruption
amongst the public servants.
74. Corruption corrodes the moral fabric of the society and
corruption by public servants not only leads to corrosion of the moral
fabric of the society but also harmful to the national economy and national
interest, as the persons occupying high posts in the Government by misusing
their power due to corruption can cause considerable damage to the national
economy, national interest and image of the country[75].
75. The PC Act, 1988 has also widened the scope of the definition
of the expression ‘public servant’ and incorporated offences under Sections
161 to 165A of the Indian Penal Code (IPC). By Lokpal and Lokayuktas Act,
2013 (Act 1 of 2014), further amendments have been made therein. The
penalties relating to the offences under Sections 7, 8, 9, 12, 13 and 14
have been enhanced by these amendments.
75.1 Section 7 makes taking gratification by a public servant other
than legal remuneration in respect of an official act as an offence and
provides penalties for such offence. The expressions ‘gratification’ and
‘legal remuneration’ have been explained in clauses (b) and (c) of the
Explanation appended to Section 7. Taking gratification by corrupt or
illegal means to influence public servant is an offence under Section 8
while under Section 9, taking gratification for exercise of personal
influence with a public servant is an offence. Section 10 provides for
punishment for abetment by public servant of offences defined in Section 8
or 9. Section 11 provides for an offence where a public servant obtains
valuable thing without consideration from person concerned in proceeding or
business transacted by such public servant. The punishment for abetment of
offences defined in Section 7 or 11 is provided in Section 12.
75.2 Section 13 is a provision relating to criminal misconduct by a
public servant. It reads as follows:
“13. Criminal misconduct by a public servant.- (1) A public servant
is said to commit the offence of criminal misconduct,-
(a) if he habitually accepts or obtains or agrees to accept or
attempts to obtain from any person for himself or for any other
person any gratification other than legal remuneration as a
motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or
attempts to obtain for himself or for any other person, any
valuable thing without consideration or for a consideration
which he knows to be inadequate from any person whom he knows to
have been, or to be, or to be likely to be concerned in any
proceeding or business transacted or about to be transacted by
him, or having any connection with the official functions of
himself or of any public servant to whom he is subordinate, or
from any person whom he knows to be interested in or related to
the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or
otherwise converts for his own use any property entrusted to him
or under his control as a public servant or allows any other
person so to do; or
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for
any other person any valuable thing or pecuniary advantage;
or
(ii) by abusing his position as a public servant, obtains
for himself or for any other person any valuable thing or
pecuniary advantage; or
(iii) while holding office as a public servant, obtains for
any person any valuable thing or pecuniary advantage
without any public interest; or
(e) if he or any person on his behalf, is in possession or has,
at any time during the period of his office, been in possession
for which the public servant cannot satisfactorily account, of
pecuniary resources or property disproportionate to his known
sources of income.
Explanation.-For the purposes of this section, "known sources of
income" means income received from any lawful source and such receipt
has been intimated in accordance with the provisions of any law, rules
or orders for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall be
punishable with imprisonment for a term which shall be not less than
four years but which may extend to ten years and shall also be liable
to fine.”
75.3 Section 17 authorizes only certain level of police officers to
investigate the offences under the PC Act, 1988. An investigation into such
offences by any other police officer can be carried out only after having
proper authorization from the competent court or competent authority as
provided therein.
75.4 Section 19 mandates that no Court shall take cognizance of an
offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been
committed by a public servant except with the previous sanction as provided
in that section. Section 19 does not permit any court to take cognizance of
an offence punishable under Sections 7, 10, 11, 13 and 15 of the PC Act,
1988 without previous sanction from the competent authority where the
offence has been committed by a public servant who is holding the office
and by misusing or abusing the powers of the office, he has committed the
offence. Section 19, thus, provides to every public servant, irrespective
of his position in service, protection from frivolous and malicious
prosecution.
76. The menace of corruption has been noticed by this Court in Ram
Singh8. The court has observed:
“Corruption, at the initial stages, was considered confined to the
bureaucracy which had the opportunities to deal with a variety of
State largesse in the form of contracts, licences and grants. Even
after the war the opportunities for corruption continued as large
amounts of government surplus stores were required to be disposed of
by the public servants. As a consequence of the wars the shortage of
various goods necessitated the imposition of controls and extensive
schemes of post-war reconstruction involving the disbursement of huge
sums of money which lay in the control of the public servants giving
them a wide discretion with the result of luring them to the
glittering shine of wealth and property.”
77. This Court in Shobha Suresh Jumani[76], took judicial notice of
the fact that because of the mad race of becoming rich and acquiring
properties overnight or because of the ostentatious or vulgar show of
wealth by a few or because of change of environment in the society by
adoption of materialistic approach, there is cancerous growth of corruption
which has affected the moral standards of the people and all forms of
governmental administration.
78. The PC Act, 1988 enacts the legislative policy to meet
corruption cases with a very strong hand. All public servants are warned
through such a legislative measure that corrupt public servants have to
face very serious consequences.[77]
79. The two-Judge Bench of this Court observed in Sanjiv Kumar[78]
that the case before them had brought to the fore the rampant corruption in
the corridors of politics and bureaucracy.
80. In a comparatively recent decision of this Court in Subramanian
Swamy9, this court was concerned with the question whether a complaint can
be filed by a citizen for prosecuting the public servant for an offence
under the PC Act, 1988 and whether the authority competent to sanction
prosecution of a public servant for offences under that Act is required to
take appropriate decision within the time specified in Clause (I)(15) of
the directions contained in paragraph 58 of the judgment of this Court in
Vineet Narain1 and the guidelines issued by the Central Government,
Department of Personnel and Training and the Central Vigilance Commission.
In the supplementing judgment, A.K. Ganguly, J. while concurring with the
main judgment delivered by G.S. Singhvi, J. observed:
“Today, corruption in our country not only poses a grave danger to the
concept of constitutional governance, it also threatens the very
foundation of the Indian democracy and the Rule of Law. The magnitude
of corruption in our public life is incompatible with the concept of a
socialist secular democratic republic. It cannot be disputed that
where corruption begins all rights end. Corruption devalues human
rights, chokes development and undermines justice, liberty, equality,
fraternity which are the core values in our Preambular vision.
Therefore, the duty of the court is that any anti-corruption law has
to be interpreted and worked out in such a fashion as to strengthen
the fight against corruption……….”
Dealing with Section 19 of the PC Act, 1988 which bars a court from taking
cognizance of the cases of corruption against a public servant under
Sections 7, 10, 11, 13 and 15 of the PC Act, 1988, unless the Central or
the State Government, as the case may be, has accorded sanction observed
that this provision virtually imposes fetters on private citizens and also
on prosecutors from approaching court against corrupt public servants.
Public servants are treated as a special class of persons enjoying the said
protection so that they can perform their duties without fear and favour
and without threats of malicious prosecution but the protection against
malicious prosecution which is extended in public interest cannot become a
shield to protect corrupt officials.
81. In Balakrishna Dattatrya Kumbhar11, this Court observed that
corruption was not only a punishable offence but also, “undermines human
rights, indirectly violating them, and systematic corruption, is a human
rights’ violation in itself, as it leads to systematic economic crimes”.
82. In R.A. Mehta10, the two-Judge Bench of this Court made the
following observations about corruption in the society:
“Corruption in a society is required to be detected and eradicated at
the earliest as it shakes “the socio-economic-political system in an
otherwise healthy, wealthy, effective and vibrating society”. Liberty
cannot last long unless the State is able to eradicate corruption from
public life. Corruption is a bigger threat than external threat to the
civil society as it corrodes the vitals of our polity and society.
Corruption is instrumental in not proper implementation and
enforcement of policies adopted by the Government. Thus, it is not
merely a fringe issue but a subject-matter of grave concern and
requires to be decisively dealt with.”
83. Now we turn to the recent decision of this Court in Manohar Lal
Sharma4. A three-Judge Bench of this Court in that case leaving the
question of constitutional validity of Section 6-A untouched and touching
upon the question whether the approval of the Central Government is
necessary under Section 6-A in a matter where the inquiry/investigation
into the crime under the PC Act, 1988 is being monitored by the Court,
speaking through one of us (R.M. Lodha, J., as he then was) on the inquiry
into allegations of corruption observed that for successful working of the
democracy it was essential that public revenues are not defrauded and
public servants do not indulge in bribery and corruption and if they do,
the allegations of corruption are to be inquired into fairly, properly and
promptly and those who are guilty are brought to book. It was observed:
“Abuse of public office for private gain has grown in scope and scale
and hit the nation badly. Corruption reduces revenue; it slows down
economic activity and holds back economic growth. The biggest loss
that may occur to the nation due to corruption is loss of confidence
in the democracy and weakening of the rule of law.”
83.1 Madan B. Lokur, J. in his supplementing judgment dealt with
Office Memorandum dated 26th September, 2011. The relevant extract of the
Office Memorandum has been quoted in paragraph 74 of the judgment, which
reads:
“The undersigned is directed to state that the provision of
section 6-A of the DSPE Act, 1946 provides for safeguarding
senior public officials against undue and vexatious harassment
by the investigating agency. It had been observed that the
requests being made by the investigating agency under the said
provision were not being accorded due priority and the examination of
such proposals at times lacked objectivity. The matter was under
consideration of the Group of Ministers constituted to consider
measures that can be taken by the Government to tackle Corruption.
The Government has accepted the following recommendation of the Group
of Ministers, as reflected in para 25 of the First Report of the Group
of Ministers, as reflected in para 25 of the first report of the Group
of Ministers:-
(a). The competent authority shall decide the matter
within three months of receipt of requests accompanied
with relevant documents.
(b). The competent authority will give a speaking
order, giving reasons for its decision.
(c) In the event a decision is taken to refuse
permission, the reasons thereof shall be put up to the next
higher authority for information within one week of taking the
decision.
(d) Since Section 6-A specifically covers officers of
the Central Government, above the rank of Joint Secretary,
the competent authority in these cases will be the Minister
in charge in the Government of India. In such cases,
intimation of refusal to grant permission along with reasons
thereof, will have to be put up to the Prime Minister.
The above decision of the Government is brought to
the notice of all Ministries/Departments for due adherence and
strict compliance.”
83.2 The above office memorandum has not been found to be
efficacious in Manohar Lal Sharma4 as it does not effectively prevent
possible misuse of law. There is no guarantee that the time schedule
prescribed in the office memorandum shall be strictly followed. In any
case, what can CBI do if the time schedule provided in the office
memorandum is not maintained. Even otherwise, office memorandum is not of
much help in adjudging the constitutional validity of Section 6-A.
84. Learned amicus curiae highlighted that there was no requirement
of previous approval as contained in the impugned provisions between
18.12.1997 (the date of Vineet Narain1 judgment striking down the Single
Directive) and 11.9.2003 (when Act 45 of 2003 came into force) except the
period between 25.8.1998 and 27.10.1998 when the CVC Ordinance, 1998 was in
force and till the deletions by the CVC Amendment Ordinance, 1998. It is
not the stand of the Central Government before us nor any material is
placed on record by it to suggest even remotely that during the period when
the Single Directive was not in operation or until Section 6-A was brought
on the statute book, CBI harassed any senior government officer or
investigated frivolous and vexatious complaints. The high-pitched argument
in justification of Section 6-A that senior government officers may be
unduly and unnecessarily harassed on frivolous and vexatious complaints,
therefore, does not hold water.
85. Criminal justice system mandates that any investigation into
the crime should be fair, in accordance with law and should not be tainted.
It is equally important that interested or influential persons are not
able to misdirect or highjack the investigation so as to throttle a fair
investigation resulting in the offenders escaping the punitive course of
law. These are important facets of rule of law. Breach of rule of law, in
our opinion, amounts to negation of equality under Article 14. Section 6-A
fails in the context of these facets of Article 14. The argument of Mr. L.
Nageswara Rao that rule of law is not above law and cannot be a ground for
invalidating legislations overlooks the well settled position that rule of
law is a facet of equality under Article 14 and breach of rule of law
amounts to breach of equality under Article 14 and, therefore, breach of
rule of law may be a ground for invalidating the legislation being in
negation of Article 14.
86. Section 156 of the Cr.P.C. enables any officer in charge of a
police station to investigate a cognizable offence. Insofar as non-
cognizable offence is concerned, a police officer by virtue of Section 155
of Cr.P.C. can investigate it after obtaining appropriate order from the
Magistrate having power to try such case or commit the case for trial
regardless of the status of the officer concerned. The scheme of Section
155 and Section 156 Cr.P.C. indicates that the local police may investigate
a senior Government officer without previous approval of the Central
Government. However, CBI cannot do so in view of Section 6-A. This
anomaly in fact occurred in Centre for PIL[79]. That was a matter in which
investigations were conducted by the local police in respect of senior
Government official without any previous approval and a challan filed in
the court of Special Judge dealing with offences under the PC Act, 1988.
Dealing with such anomaly in Centre for PIL79, Madan B. Lokur, J. in
Manohar Lal Sharma4 observed, “It is difficult to understand the logic
behind such a dichotomy unless it is assumed that frivolous and
vexatious complaints are made only when the CBI is the investigating
agency and that it is only CBI that is capable of harassing or
victimizing a senior Government official while the local police of the
State Government does not entertain frivolous and vexatious complaints and
is not capable of harassing or victimizing a senior government official.
No such assumption can be made.” The above clearly indicates that
Section 6-A has brought an anomalous situation and the very object of the
provision to give protection to certain officers (Joint Secretary and
above) in the Central Government has been rendered discriminatory and
violative of Article 14.
87. It is pertinent to notice that in Subramanian Swamy9 this Court
noted that as per supplementary written submissions tendered by the learned
Attorney General, 126 cases were awaiting sanction for prosecution from the
Central Government for periods ranging from one year to few months.
Moreover, in more than one-third of the cases of requests for prosecution
in corruption cases against public servants, sanctions have not been
accorded. Whether an enactment providing for special procedure for a
certain class of persons is or is not discriminatory and violative of
Article 14 must be determined in its own context. A practical assessment of
the operation of the law in particular circumstances is necessary and the
court can take judicial notice of existing conditions from time to time.
The scenario noted in Subramanian Swamy9 and the facts in Telecom Watchdog5
- to illustrate the few – show that differentia in Section 6-A is directly
destructive and runs counter to the object and reason of the PC Act, 1988.
It also undermines the object of detecting and punishing high level
corruption.
88. Mr. K.V. Viswanathan, learned Additional Solicitor General has
strongly relied upon the observations made by this Court in P. Sirajuddin52
that if baseless allegations are made against senior Government officials,
it would cause incalculable harm not only to the officer in particular
but to the department that he belonged to, in general. He,
particularly, referred to the following observations in P. Sirajuddin52
(para 17, page 601 of the report):
“………..Before a public servant, whatever be his status, is publicly
charged with acts of dishonesty which amount to serious
misdemeanour or misconduct of the type alleged in this case and a
first information is lodged against him, there must be some suitable
preliminary enquiry into the allegations by a responsible officer.
The lodging of such a report against a person, specially one who
like the appellant occupied the top position in a department,
even if baseless, would do incalculable harm not only to the
officer in particular but to the department he belonged to, in
general.”
89. In our opinion, P. Sirajuddin52 also emphasizes equality before
law. This decision, in our opinion, cannot be read as laying down the
proposition that the distinction can be made for the purposes of inquiry /
investigation of an offence of which public servants are accused based on
their status.
90. It is pertinent to notice that in Manohar Lal Sharma4, the
learned Attorney General made a concession to the effect that in the event
of CBI conducting an inquiry, as opposed to an investigation into the
conduct of a senior government officer, no previous approval of the Central
Government is required since the inquiry does not have the same adverse
connotation that an investigation has. To that extent, Section 6-A, as it
is, does not survive. Insofar as investigation is concerned, an
investigation into a crime may have some adverse impact but where there are
allegations of an offence under the PC Act, 1988 against a public servant,
whether high or low, whether decision-maker or not, an independent
investigation into such allegations is of utmost importance and unearthing
the truth is the goal. The aim and object of investigation is ultimately
to search for truth and any law that impedes that object may not stand the
test of Article 14.
91. In the referral order, the contention of learned Solicitor
General has been noted with regard to inconsistency in the two judgments of
this Court in Vineet Narain1 and K. Veeraswami25.
92. In K. Veeraswami25, this Court in para 28 (pages 693-694 of the
report) observed:
“28. … Section 6 is primarily concerned to see that prosecution for
the specified offences shall not commence without the sanction of a
competent authority. That does not mean that the Act was intended to
condone the offence of bribery and corruption by public servant. Nor
it was meant to afford protection to public servant from criminal
prosecution for such offences. It is only to protect the honest public
servants from frivolous and vexatious prosecution. The competent
authority has to examine independently and impartially the material on
record to form his own opinion whether the offence alleged is
frivolous or vexatious. The competent authority may refuse sanction
for prosecution if the offence alleged has no material to support or
it is frivolous or intended to harass the honest officer. But he
cannot refuse to grant sanction if the material collected has made out
the commission of the offence alleged against the public servant.
Indeed he is duty-bound to grant sanction if the material collected
lend credence to the offence complained of. There seems to be another
reason for taking away the discretion of the investigating agency to
prosecute or not to prosecute a public servant. When a public servant
is prosecuted for an offence which challenges his honesty and
integrity, the issue in such a case is not only between the prosecutor
and the offender, but the State is also vitally concerned with it as
it affects the morale of public servants and also the administrative
interest of the State. The discretion to prosecute public servant is
taken away from the prosecuting agency and is vested in the authority
which is competent to remove the public servant. The authority
competent to remove the public servant would be in a better position
than the prosecuting agency to assess the material collected in a
dispassionate and reasonable manner and determine whether sanction for
prosecution of a public servant deserves to be granted or not.”
93. In Vineet Narain1, the above observations in K. Veeraswami25
have been considered in paras 34 and 35 of the report (pages 259-260) and
the three-Judge Bench held that the position of Judges of High Courts and
the Supreme Court, who are constitutional functionaries, is distinct, and
the independence of judiciary, keeping it free from any extraneous
influence, including that from executive, is the rationale of the decision
in K. Veeraswami25. The Court went on to say: “…. In strict terms the
Prevention of Corruption Act, 1946 could not be applied to the superior
Judges and, therefore, while bringing those Judges within the purview of
the Act yet maintaining the independence of judiciary, this guideline was
issued as a direction by the Court. The feature of independence of
judiciary has no application to the officers covered by the Single
Directive. The need for independence of judiciary from the executive
influence does not arise in the case of officers belonging to the
executive…..”
94. The observations in K. Veeraswami25, as noted above, were found
to be confined to the Judges of the High Courts and the Supreme Court, who
are constitutional functionaries, and their position being distinct and
different from the Government officers. In our opinion, the Constitution
Bench decision in K. Veeraswami25 has no application to the senior public
servants specified in Section 6-A. We have, therefore, no hesitation in
holding that the conclusion reached in para 34 in Vineet Narain1, in no
manner, can be said to be inconsistent with the findings recorded in para
28 of K. Veeraswami25.
95. Various provisions under different statutes were referred to by
Mr. L. Nageswara Rao where permission of the government is required before
taking cognizance or for institution of an offence. Section 197 of Cr.P.C.
was also referred to, which provides for protection to Judges and public
servants from prosecution except with the previous sanction by the
competent authority. It may be immediately stated that there is no
similarity between the impugned provision in Section 6-A of the DSPE Act
and Section 197 of Cr.P.C. Moreover, where challenge is laid to the
constitutionality of a legislation on the bedrock or touchstone of
classification, it has to be determined in each case by applying well-
settled two tests: (i) that classification is founded on intelligible
differentia and (ii) that differentia has a rational relation with the
object sought to be achieved by the legislation. Each case has to be
examined independently in the context of Article 14 and not by applying any
general rule.
96. A feeble attempt was made by Mr. K.V. Viswanathan, learned
Additional Solicitor General that Section 6-A must at least be saved for
the purposes of Section 13(1)(d)(ii) and (iii) of the PC Act, 1988. In our
opinion, Section 6-A does not satisfy the well-settled tests in the context
of Article 14 and is not capable of severance for the purposes of Section
13(1)(d)(ii) and (iii).
97. Having considered the impugned provision contained in Section 6-
A and for the reasons indicated above, we do not think that it is necessary
to consider the other objections challenging the impugned provision in the
context of Article 14.
98. In view of our foregoing discussion, we hold that Section 6-
A(1), which requires approval of the Central Government to conduct any
inquiry or investigation into any offence alleged to have been committed
under the PC Act, 1988 where such allegation relates to (a) the employees
of the Central Government of the level of Joint Secretary and above and (b)
such officers as are appointed by the Central Government in corporations
established by or under any Central Act, government companies, societies
and local authorities owned or controlled by the Government, is invalid and
violative of Article 14 of the Constitution. As a necessary corollary, the
provision contained in Section 26 (c) of the Act 45 of 2003 to that extent
is also declared invalid.
99. Writ petitions are allowed as above.
.…...………..……………………...CJI.
(R.M. Lodha)
.…...………..……………………...J.
(A.K. Patnaik)
.…...………..……………………...J.
(Sudhansu Jyoti Mukhopadhaya)
.…...………..……………………...J.
(Dipak Misra)
.…...………..……………………...J. (Fakkir Mohamed
Ibrahim Kalifulla)
NEW DELHI
MAY 06, 2014.
-----------------------
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1]
