Judges: R.M. Lodha, C.J.I., A.K. Patnaik, S.J. Mukhopadhaya, Dipak Misra and F.M. Ibrahim Kalifulla, JJ.

Facts:

In Vineet Narain and Ors. v. Union of India and Anr., MANU/SC/0827/1998 , Single Directive No. 4.7(3), which contained certain instructions to CBI regarding modalities of initiating an inquiry or registering a case against certain categories of civil servants, fell for consideration. The Court has struck down Single Directive No. 4.7(3). While doing so, the Court also made certain recommendations in respect of CBI and Central Vigilance Commission (CVC). One of such recommendations was to confer statutory status to CVC.

In order to comply with the directions of this Court in Vineet Narain and Ors. v. Union of India and Anr. [MANU/SC/0827/1998], Central Vigilance Commission Act, 2003 was enacted. The Act 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 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 provides for amendment of Delhi Special Police Establishment Act, 1946 (DSPE Act) and insertion of Section 6A shall be inserted in the DSPE Act.

A writ petition has been filed for challenging order whereby Single Directive has been struck down. When the matter was mentioned before the Bench, learned amicus curiae expressed his concern regarding the attempt to restore the Single Directive, which was struck down in Vineet Narain and Ors. v. Union of India and Anr. [MANU/SC/0827/1998], in the proposed legislation. In between,, Central Vigilance Commission Act, 2003 received Presidential assent and Section 6A was inserted in the DSPE Act.

Two more writ petitions have been filed for challenging constitutional validity of Section 6A. When these petitions came up for consideration, the Bench thought that these matters deserved to be heard by the larger Bench.

Since Section 6A came to be inserted by Section 26(c) of the Central Vigilance Commission Act, 2003, the constitutional validity of Section 26(c) has also been raised.

Issues:

I. Whether Section 6A is unconstitutional?

II. Whether Section 26(c) of the Central Vigilance Commission Act, 2003 is valid?

Law:

Single Directive No. 4.7(3) - In regard to any person who is or has been a decision-making level officer (Joint Secretary or equivalent or above in the Central Government or such officers as are or have been on deputation to a Public Sector Undertaking; officers of the Reserve Bank of India of the level equivalent to Joint Secretary or above in the Central Government, Executive Directors and above of the SEBI and Chairman & Managing Director and Executive Directors and such of the bank officers who are one level below the Board of Nationalised Banks), there should be prior sanction of the Secretary of the Ministry/Department 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.

Delhi Special Police Establishment Act, 1946 - Section 6A(1) - 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.

Central Vigilance Commission Act, 2003 - Section 26 - Provides for amendment of DSPE Act and Clause (c) thereof enacts that after Section 6, Section 6A shall be inserted in the DSPE Act.

Contentions:

Amicus Curiae

I. Section 6A 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.

II. Section 6A directly presents an illegal impediment to the insulation of CBI and undermines the independence of CBI to hold a preliminary enquiry (PE) or investigation.

III. The essence of skillful and effective police investigation is by collection of evidence and material secretly, without leakage so that the potential accused is not forewarned leading to destruction or tempering of evidence and witnesses. Such investigation is compromised by the impugned provision, viz., Section 6A 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 6A, offers an impregnable shield (except when there is a court monitored investigation) to the criminal-bureaucratic-political nexus.

IV. Section 6A confers on the Central Government unguided, unfettered and unbridled power and the provision is manifestly arbitrary, entirely perverse and patently unreasonable.

V. The classification as contained in Section 6A creating a privileged class of the government officers of the level of Joint Secretary and above level and certain officials in public sector undertakings, etc. is directly destructive and runs counter to the whole object and reason of the PC Act, 1988 read with the DSPE Act and undermines the object of detecting and punishing high level corruption.

Petitioner - PCIL

I. Section 6A makes criminal investigation against a certain class of public servants unworkable and it completely militates against the rule of law. Section 6A of the DSPE Act interdicts enquiry or investigation in respect of certain class of officers and puts direct hindrance in combating corruption and, therefore, the provision is violative of Article 14 of the Constitution.

Mr. Gopal Sankaranarayanan (intervenor)

I. Section 6A of the DSPE Act breaches the basic feature of rule of law. The basic structure test can be applied to the statutes as well. By enactment of Section 6A, the rule of law has suffered a two-fold violation: (i) resurrection of the single directive in the form of legislation without in any way removing the basis of the Vineet Narain and Ors. v. Union of India and Anr. [MANU/SC/0827/1998 and (ii) impediment of the due process (criminal investigation) by imposing a condition at the threshold.

II. There is an unreasonable classification among policemen and among the accused and, in any case, the classification even if valid has no nexus with the object sought to be achieved by Section 6A, which is apparently to protect the officers concerned.

III. Section 6A is also inconsistent with the Code of Criminal Procedure.

Mr. L. Nageswara Rao, ASG

I. 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 decision-making level would only give safe and non-committal advice.

II. The object of Section 6A 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.

III. Section 6A is not an absolute bar because it does not prohibit investigation against senior government servants as such. It only provides a filter or pre-check so that the Government can ensure that senior officers at decision-making level are not subjected to unwarranted harassment.

IV. 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.

V. Rule of law cannot be a ground for invalidating legislations without reference to the Constitution. It is not a concept above the Constitution.

VI. Section 6A satisfies the test of reasonable classification. The public servants of the level of Joint Secretary and above take policy decisions and, therefore, there is an intelligible differentia. As they take policy decisions, there is a need to protect them from frivolous inquiries and investigation so that policy making does not suffer. Thus, there is rational nexus with the object sought to be achieved.

VII. Conferment of unbridled/un-canalized power on the executive cannot be a ground for striking down legislation as being violative of Article 14. Mere possibility of abuse of power cannot invalidate a law.

Analysis:

I. 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 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.

Validity of classification which Section 6A(1) makes and the lack of relationship between the basis of that classification and the object which it seeks to achieve.

I. 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 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.

II. However, the classification which is made in Section 6A 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.

III. Also, there can be no differentiation between corrupt public servants based on their status 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 against whom there are allegations amounting to an offence under the PC Act, 1988.

IV. It is difficult to justify the classification which has been made in Section 6A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences.

V. 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 6A would result in indirectly putting to notice the officers to be investigated before commencement of investigation.

VI. 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.

VII. 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 in Section 6A has propensity of shielding the corrupt. The object of Section 6A, that senior public servants of the level of Joint Secretary and above who take policy decision must not be put to any harassment, side-tracks the fundamental objective of the PC Act, 1988 to deal with corruption and act against senior public servants. The CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations. Thus, the object of Section 6A 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.

VIII. Every public servant against whom there is reasonable suspicion of commission of crime or there are allegations of an offence under the PC Act, 1988 has to be treated equally and similarly under the law. Any distinction made between them on the basis of their status or position in service for the purposes of inquiry/investigation is nothing but an artificial one and offends Article 14.

IX. 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 6A fails in the context of these facets of Article 14.

Conclusion:

I. Section 6A(1), which requires approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the PC Act, 1988 where such allegation relates to (a) the employees of the Central Government of 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 the Government, is invalid and violative of Article 14 of the Constitution.

II. As a necessary corollary, the provision contained in Section 26(c) of the Act 45 of 2003 to that extent is also declared invalid.

III. Writ petitions are allowed as above.

Important Precedents:

I. Vineet Narain and Ors. v. Union of India and Anr., MANU/SC/0827/1998