Section 6A: Decision on legality hanging fire for 8 yrs

DSPE Act: In 2005,a three-Judge Bench of the apex court referred to a Constitutional Bench the issue of its validity

The Supreme Courts Thursday order that in court-monitored investigation into the alleged 2G scam,the CBI was not required to take prior sanction from the government to probe public servants of the rank of joint secretary or above,effectively quashed the statutory requirement for prior sanction under Section 6A of the Delhi Special Police Establishment DSPE Act,1946,in so far as court-monitored probes are concerned.

As per Section 6A,any investigating agency is required to seek prior permission of the Union government to investigate officers of the rank of joint secretary and above for any offence under the Prevention of Corruption Act.

In 2005,a three-Judge Bench of the apex court headed by Justice Y K Sabharwal had referred to a Constitutional Bench the issue of validity of Section 6A of the DSPE Act,1946,but over eight years later,the important matter is still to be heard and decided.

The legality of Section 6A of the DPSE Act,including its earlier avataar of the Single Directive,which was quashed by the SC in Vineet Narain case,has been at the core of many important cases,with the government invariably taking the stand that this protection was necessary to protect decision making-level officers from the threat and ignominy of malicious and vexatious inquiries/investigations8230; and to relieve them of the anxiety from the likelihood of harassment for taking honest decisions.

Hearing a petition filed by Janata Party president Subramanian Swamy,the Bench,also comprising Justices D M Dharmadhikari and Tarun Chatterjee,had referred the issue to a larger Constitutional Bench. The reason for doing so was spelt out by the Bench itself. In short,the moot question is whether arbitrariness and unreasonableness or manifest arbitrariness and unreasonableness,being facets of Article 14 of the Constitution of India are available or not as grounds to invalidate a legislation, the Bench had observed.

Appearing for the Union of India,the then Solicitor General Goolam E Vahanvati,who is now the Attorney General,had asserted that the legislation couldnt be struck down on the ground of arbitrariness or unreasonableness as such a ground is available only to quash executive action and orders.

Legal experts say it is time the apex court settled once and for all the issue of constitutionality of Section 6A.

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Thursdays order of the Supreme Court,though relating to the 2G scam probe,could have an impact in other court-monitored probes too,including the coal blocks allocation scam.