“Status or position” cannot shield an officer of the level of joint secretary and above from unconstrained probe by the CBI in cases of corruption, the Supreme Court ruled on Tuesday, quashing a law that requires the agency to go to the government to seek approval for the investigation.
A five-judge constitution bench led by Chief Justice R M Lodha ruled that Section 6A of the Delhi Special Police Establishment Act (DSPEA), which shackles investigations without approvals, was “discriminatory”, and “impedes tracking down the corrupt senior bureaucrats”.
The court said that “the protection in Section 6A has propensity of shielding the corrupt”. The provision “suffers from the vice of classifying offenders differently for treatment thereunder for inquiry and investigation of offences, according to their status in life”, it said.
“Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law. 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,” the bench said.
“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.”
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The bench expressed the opinion that this provision in the DSPE Act defeated the objectives of the Prevention of Corruption Act, framed to deal with corruption and to act against senior public servants.
“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,” the court said.
The CBI, it added, could not be insulated 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”.
“Office of public power cannot be the workshop of personal gain. The probity in public life is of great importance. How can two public servants against whom there are allegations of corruption or graft or bribe-taking or criminal misconduct under the PC Act, be made to be treated differently because one happens to be a junior officer and the other a senior decision maker?” the bench asked.
It allowed the petitions filed by BJP leader Subramanian Swamy and NGO Centre for PIL that had challenged the constitutional validity of Section 6A.
The PILs pointed out that the section had been inserted into the DSPE Act in order to nullify the Supreme Court’s verdict in the 1997 Vineet Narain case, wherein the court had quashed the so-called “single directive”, which was a consolidated set of instructions issued by the government to the CBI.
Section 6A was inserted with effect from September 2003, when the NDA was in power. The then law minister, Arun Jaitley, had defended the provision in Parliament during a debate on the Central Vigilance Commission Bill. Jaitley said that those in decision-making positions, who must exercise discretion, and those who have to take vital decisions, needed to be protected against frivolous complaints.