Case: Dr. Subramanian Swamy &amp; Another Vs. Director, Central Bureau of Investigation &amp; Others

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 [Vineet Narain & Ors. v. Union of India & Anr.; [(1998) 1 SCC 226] ], whichwrit 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 thecounsel 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.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 titleCentral Vigilance Commission Bill,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 ofcame 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,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.

Court's reasoning:
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.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.The PC Act, 1988 has also widened the scope of the definition of the expression ‘publicand 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.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.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.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 [Centre for PIL and Anr. v. Union of India and Anr.; [(2011) 4 SCC 1] ]. 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,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 beThe 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.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.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).