Two months after a Constitution Bench of the Supreme Court set aside a provision under which it was mandatory for the CBI to seek prior sanction before investigating officers of the rank of joint secretary and above, Attorney General Mukul Rohatgi has opined that the provision should be “recast” to extend the “protection to all officers… regardless of rank”.
Section 6A of the Delhi Special Police Establishment Act, 1946, made it mandatory for the CBI to take prior sanction of the government before initiating any investigation against an officer of the rank of joint secretary and above for offences under the Prevention of Corruption Act, 1988.
On May 6, the Bench ruled that the provision was “discriminatory” and “impedes tracking down the corrupt senior bureaucrats”. It said Section 6A “suffers from the vice of classifying offenders differently for treatment thereunder for inquiry and investigation of offences, according to their status in life”. It held that the provision, “on the face of it, is not valid” as it “grants absolute protection to corrupt officers from prosecution”.
Now, in his opinion to the Department of Training and Personnel (DoPT), Rohatgi has said the provision should be “recast” to ensure that the “protection” applies to all government servants, “regardless of rank”.
“The underlying basis of this (court’s) reasoning was that all cognizable offences deserve to be investigated without any hindrance whatsoever,” the AG has noted.
Stating that the second reason for striking down the provision was absence of a “rational difference between officers of the rank of joint secretary and above and those below”, he has said, “Hence, Section 6A suffered from the vice of discrimination. In my view, this defect can easily be cured by extending the proposed protection to all officers of the central government, regardless of rank. After all, frivolous complaints can be made even against lower officials.”
Rohatgi has further suggested that sanction for prosection should be granted by the Central Vigilance Commission (CVC), and not by the government.
Stating that the CVC must grant sanction if “any preliminary enquiry reveals the commission of an offence,” Rohatgi has said the decision to accord or deny sanction must be taken in an “expeditious and time-bound manner, say 90 days from the time the proposal, complete in all particulars, is received by the CVC”.
Rohatgi has also opined that such sanction is not required in “trap cases”.