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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 ..... f 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove. 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 decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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], 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 cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf 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 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case Centre for Public Interest Litiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 decisionmaking level would only give safe and non-committal advice. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. and Ors. v. Union of India and Ors.; [(2004) 4 SCC 311]. 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 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 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Union of India;[(1998) 2 SCC 109] 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 Shah v. State of Maharashtra; [(1971) 2 SCC 119] 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 Adulter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.; [(1978) 1 SCC 248], Matajog Dobey v. H. C. Bhari; [(1955) 2 SCR 925], V.C. Shukla v. State through CBI; [1980 Supp SCC 92] and V.C. Shukla v. State (Delhi Administration); [1980 Supp SCC 249]. 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 & Anr. etc., etc. v. Union of India & Ors.; [1957 SCR 233] and Jyoti Pershad v. Administrator for the Union 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 Shanka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh Marwah & Anr. v. Meenakshi Marwah & Anr.; [(2005) 4 SCC 370]. 36. Citing Manohar Lal Sharma v. Principal Secretary & Ors.; [(2014) 2 SCC 532], 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 Sharma v. Principal Secretary & Ors.; [(2014) 2 SCC 532], 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (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 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 transgressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 welldefined 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 Narain & Ors. v. Union of India & Anr. (1998) 1 SCC 226 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 Narain & Ors. v. Union of India & Anr. (1998) 1 SCC 226 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 Narain & Ors. v. Union of India & Anr. (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 charac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Narain & Ors. v. Union of India & Anr. (1998) 1 SCC 226 as well. However, the Court was unable to persuade itself with the same. In Vineet Narain & Ors. v. Union of India & Anr. (1998) 1 SCC 226 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 V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmities 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Sharma v. Principal Secretary & Ors.; [(2014) 2 SCC 532] to which we shall refer appropriately a littl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 subo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecular 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 anticorruption 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 accom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 cogniza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actical 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. Sirajuddin, etc. v. State of Madras, etc.; [(1970) 1 SCC 595] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 28 of K. Veeraswami v. Union of India [(1991) 3 SCC 655]. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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