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TMI Blog2014 (5) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eties 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esident 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal 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 Narain Ors. v. Union of India Anr.; [(1998) 1 SCC 226]. He also relies upon the decision in I.R. Coelho v. State of Tamil Nadu; [(2007) 2 SCC 1]. 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) Centre for Public Interest Litigation Ors. v. Union of India Ors.; [(2012) 3 SCC 1]. and Manohar Lal Sharma v. Principal Secretary Ors.; [(2014) 2 SCC 532]. following Vineet Narain Ors. v. Union of India Anr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case Centre for Public Interest Litigation Ors. v. Union of India Ors.; [(2012) 3 SCC 1]. and the facts of a case before Delhi High Court entitled Telecom Watchdog v. Union of India; (Delhi High Court W.P.(C) No. 9338/2009). 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 State of Madras v. V.G. Row; [1952 SCR 597]. and D.S. Nakara and Ors. v. Union of India; [(1983) 1 SCC 305]. 16. It is submitted by the learned amicus c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 Nagpur Improvement Trust and Anr. v. Vithal Rao and Ors.; [(1973) 1 SCC 500]. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decisionmaking 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 v. Union of India [(1991) 3 SCC 655] were strongly pressed into service by Mr. L. Nageswara Rao. 23. It is argued by the learned Additional Solicitor General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr.; [(1973) 4 SCC 225]. He also referred to In re. Special Courts Bill, 1978, In re,; [(1979) 1 SCC 380], 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 Nayar and Ors. v. Union of India and Ors.; [(2006) 7 SCC 1]. He also relies upon Ashoka Kumar Thakur v. Union of India and Ors.; [(2008) 6 SCC 1]. 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. Anr. v. State of Karnataka; [(2011) 9 SCC 1] has held that plea of unreasonableness, arbitrariness, proportional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Territory of Delhi Ors. [(1962) 2 SCR 125] 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 State of Bihar Ors. v. Bihar Distillery Ltd. Ors.;[(1997) 2 SCC 453]. 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 State of Bihar Ors. v. Kripalu Shankar Ors.; [(1987) 3 SCC 34] 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, etc. v. State of Madras, etc.; [(1970) 1 SCC 595] to highlight the observations of this Court that lodging of FIR against a government official especially, one who occupies top position in a department, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orandum 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a law of procedure. 40. In Ram Krishna Dalmia v. Justice S.R. Tendolkar Ors.; [1959 SCR 279], 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, 1978, In re,; [(1979) 1 SCC 380] 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 Choudhry Ors. v. State of Bihar [(1955) 1 SCR 1045], Ram Krishna Dalmia v. Justice S.R. Tendolkar Ors.; [1959 SCR 279], C.I. Emden v. State of U.P.; [(1960) 2 SCR 592], Kangsari Haldar Anr. v. State of West Bengal; [(1960) 2 SCR 646], Jyoti Pershad v. Administrator for the Union Territory of Delhi Ors. [(1962) 2 SCR 125] and State of Gujarat Anr. v. Shri Ambica Mills Ltd., Ahmedabad Anr.; [(1974) 3 SCR 760], 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration 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 Air India v. Nergesh Meerza and Ors.; [(1981) 4 SCC 335], 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 State of West Bengal v. Anwar Ali Sarkar[(1952) SCR 284], and observed that the due process clause in the American Constitution could not apply to our Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sanction would enable judicial review of that decision in case of any grievance. 52. This Court in Vineet Narain Ors. v. Union of India Anr. (1998) 1 SCC 226 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 State of Bihar Anr. v. J.A.C. Saldanha Ors.; [(1980) 1 SCC 554] and K. Veeraswami v. Union of India [(1991) 3 SCC 655] 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 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether 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 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve observation in Vineet Narain Ors. v. Union of India Anr. (1998) 1 SCC 226, which, in our opinion, equally applies to Section 6-A. In Vineet Narain Ors. v. Union of India Anr. (1998) 1 SCC 226, 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonalities. 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enior 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 Narain Ors. v. Union of India Anr. (1998) 1 SCC 226 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 differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsolidate 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 J. Jayalalitha v. Union of India Anr.; [(1999) 5 SCC 138]. 75. The PC Act, 1988 has also widened the scope of the definition of the expression public servant and incorporated offences under Sections 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrusted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... listic 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. (State of A.P. v. V. Vasudeva Rao [(2004) 9 SCC 319) 79. The two-Judge Bench of this Court observed in Sanjiv Kumar Sanjiv Kumar v. State of Haryana and Ors. [(2005) 5 SCC 517] 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise 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 subjectmatter of grave concern and requires to be decisively dealt with. 83. Now we turn to the recent decision of this Court in Manohar Lal Sharma v. Principal Secretary Ors.; [(2014) 2 SCC 532]. 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 pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision 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 Sharma v. Principal Secretary Ors.; [(2014) 2 SCC 532] 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 Narain Ors. v. Union of India Anr. (1998) 1 SCC 226 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Centre for PIL79, Madan B. Lokur, J. in Manohar Lal Sharma v. Principal Secretary Ors.; [(2014) 2 SCC 532] 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 Swamy v. Manmohan Singh and Anr.; [(2012) 3 SCC 64]. 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 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned 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 Narain Ors. v. Union of India Anr. (1998) 1 SCC 226 and K. Veeraswami v. Union of India [(1991) 3 SCC 655]. 92. In K. Veeraswami v. Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional 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. Veeraswami v. Union of India [(1991) 3 SCC 655]. 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. Veeraswami v. Union of India [(1991) 3 SCC 655], 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. Veeraswami v. Union of India [(1991) 3 SCC 655] has no appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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