SUBRAMANIAN SWAMY Vs. DIRECTOR C B I

JUDGEMENT

(1.) In these petitions challenge is to the constitutional validity of Section 6-A of the Delhi Special Police Establishment Act, 1946 (for short, the Act). This section was inserted in the Act w.e.f. 12th September, 2003. It, inter alia, provides for obtaining the previous approval of the Central Government for conduct of any inquiry or investigation for any offence alleged to have been committed under the Prevention of Corruption Act, 1988 where allegations relate to officers of the level of Joint Secretary and above. Before insertion of Section 6-A in the Act, the requirement to obtain prior approval of the Central Government was contained in a directive known as Single Directive issued by the Government. The Single Directive was a consolidated set of instructions issued to Central Bureau of Investigation (CBI) by various Ministries/Departments regarding modalities of initiating an inquiry or registering a case against certain categories of civil servants. The said directive was stated to have been issued to protect decision making level officers from the threat and ignominy of malicious and vaxatious inquiries/investigations and to give protection to officers at the decision making level and to relieve them of the anxiety from the likelihood of harassment for taking honest decisions. It was said that absence of such protection to them could adversely affect the efficiency and efficacy of these institutions because of the tendency of such officers to avoid taking any decisions which could later lead to harassment by any malicious and vexatious inquiries/investigations.

(2.) The Single Directive was quashed by this Court in a judgment delivered on 18th December, 1997 (Vineet Narain and others vs. Union of India and another, (1998) 1 SCC 226. Within a few months after Vineet Narains judgment, by Central Vigilance Commission Ordinance, 1998 dated 25th August, 1998, Section 6-A was sought to be inserted providing for the previous approval of the Central Vigilance Commission before investigation of the officers of the level of Joint Secretary and above. On the intervention of this Court, this provision was deleted by issue of another Ordinance promulgated on 27th October, 1998. From the date of the decision in Vineet Narains case (supra) and till insertion of Section 6-A w.e.f. 12th September, 2003, there was no requirement of seeking previous approval except for a period of two months from 25th August to 27th October, 1998.

(3.) The validity of Section 6-A has been questioned on the touchstone of Article 14 of the Constitution of India. 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 Narains case (supra) and principle of independent, unhampered, unbiased and efficient investigation. The contention is that Vineet Narains decision frames 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 the CBI should even start an inquiry or investigation against them or not. There will be no confidentiality and insulation of the investigating agency from political and bureaucratic control and influence because the approval is to be taken from the Central Government which would involve leaks and disclosures at every stage. The very nexus of the criminal-bureaucrat-politician which is subverting the whole polity would be involved in granting or refusing prior approval before an inquiry or investigation can take place. Pointing out that the essence of a police investigation is skilful inquiry and collection of material and evidence in a manner by which the potential culpable individuals are not forewarned, the submission made is that the prior sanction of same department would result in indirectly putting to notice the officers to be investigated before commencement of investigation. Learned senior counsel contends that it is wholly irrational and arbitrary to protect highly placed public servants from inquiry or investigation in the light of the conditions prevailing in the country and the corruption at high places as reflected in several judgments of this Court including that of Vineet Narains. Section 6-A of the Act is wholly arbitrary and unreasonable and is liable to be struck down being violative of Article 14 of the Constitution of India is the submission of learned Amicus Curiae. :