On 17-12-2013 a three Judge Bench of Supreme Court of India held that that no approval from the Centre is required by the Central Bureau of Investigation (CBI) to prosecute senior bureaucrats in court-monitored corruption cases. Now a Constitution Bench (5 Judge) of Indian Supreme Court has held that Section 6A of the Delhi Special Police Establishment Act (DSPE Act), which granted protection to joint secretary and above officers from facing even a preliminary inquiry by the CBI in corruption cases, was violative of Article 14. From now onwards, no prior sanction would be mandatory for the CBI to conduct a probe against senior bureaucrats in corruption cases under the Prevention of Corruption Act.
A Constitution Bench comprising Chief Justice R.M. Lodha and Justices A.K. Patnaik, S.J. Mukhopadhaya, Dipak Misra and Ibrahim Kalifulla, while allowing the petitions filed by BJP leader Subramanian Swamy and the Centre for Public Interest Litigation, held that Section 6A of DSPE Act, which granted protection to joint secretary and above officers from facing even a preliminary inquiry by the CBI in corruption cases, was violative of Article 14.
Welcoming the court order, CBI Director Ranjit Sinha told The Hindu: “It is a landmark judgment that will empower the agency in the investigations into several cases pending due to the provision that has now been struck down by the Constitution Bench. We had for long been of the view that inquiry against senior officials need not require any prior permission.”
Writing the judgment, the CJI said, “Corruption is an enemy of [the] nation and tracking down a 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 a public servant does not qualify the person 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 Bench said, “Section 6A of the DSPE Act granting protection to one set of officers 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. 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, be made to be treated differently because one happens to be a junior officer and the other a senior decision maker?”
“The provision in Section 6A 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 under Section 6A has propensity of shielding the corrupt,” the Bench added.
Observing that there could not be any protection to corrupt public servants, the Bench said, “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. 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.”
Like almost any other judgement dealing with cases of corruption in high places, Tuesday’s order is related to the Supreme Court’s December 1997 ruling in the Vineet Narain v. Union of India case related to the Jain hawala scandal, involving payoffs to politicians by four Jain brothers who facilitated illegal foreign exchange transactions (termed hawala). That ruling, like Tuesday’s, sought to reduce the interference of the government in investigations of politicians and bureaucrats by CBI.
This is the third time the apex court has overturned a legislative action to fetter the CBI from inquiring against senior babus. On December 18, 1997, the court had struck down the “single directive” provision in Vineet Narain judgment. However, the “shield” for bureaucrats was restored when the Centre promulgated an ordinance on August 25, 1998. While SC’s intervention saw the provision deleted from the ordinance, the NDA government, headed by the BJP, on September 12, 2003 inserted Section 6A in the DSPE Act, which governs the CBI, to debar the agency from inquiring against top bureaucrats for corruption charges without prior permission of the Centre. It was challenged in 2005 by Subramanian Swamy and NGO “Centre for Public Interest Litigation”.
“It is very sad that this section was reintroduced even after the court’s decision in the hawala matter. This shows the extent to which both BJP and Congress governments were willing to go to prevent the prosecution of corrupt officials and offer them protection,” said lawyer Prashant Bhushan.” The Supreme Court maintained its view from the Vineet Narain v. Union of India case that “However high you may be, the law is above you”.