DR.SUBRAMANIAN SWAMY vs. DIRECTOR, CBI

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 38 OF 1997 Dr. Subramanian Swamy …… Petitioner Versus Director, Central Bureau of Investigation & Anr. …… Respondents WITH WRIT PETITION (CIVIL) NO. 21 OF 2004 Centre for Public Interest Litigation …… Petitioner Versus Union of India …… Respondent JUDGMENT JUDGMENT R.M. LODHA, CJI. Section 6-A of the Delhi Special Police Establishment Act, 1946 (for short, ‘the DSPE Act’), which was inserted by Act 45 of 2003, reads as under: “Section 6-A. Approval of Central Government to conduct inquiry or investigation.- (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 1 Page 1 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to- (a) the employees of the Central Government of the Level of Joint Secretary and above; and

(2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).” 2. The constitutional validity of Section 6-A is in issue in these two writ petitions, both filed under Article 32 of the Constitution. Since Section 6-A came to be inserted by Section 26(c) of the Central Vigilance Commission Act, 2003 (Act 45 of 2003), the constitutional validity of Section 26(c) has also been raised. It is not necessary to independently refer to Section 26(c). Our reference to Section 6-A of the DSPE Act, JUDGMENT wherever necessary, shall be treated as reference to Section 26(c) of the Act 45 of 2003 as well. Reference to the Constitution Bench 2 Page 2 3. On February 4, 2005 when these petitions came up for consideration, the Bench thought that these matters deserved to be heard by the larger Bench. The full text of the reference order is as follows:

JUDGMENT 2. The Single Directive was quashed by this Court in a judgment delivered on 18-12-1997 ( Vineet Narain & Ors. v. Union of India & Anr. (1998) 1 SCC 226). Within a few months after Vineet Narain judgment, by the Central Vigilance Commission Ordinance, 1998 dated 25-8-1998, 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 27-10-1998. From the date of the decision in Vineet Narain case and till insertion of Section 6- A w.e.f. 12-9-2003, there was no requirement of seeking previous 3 Page 3 approval except for a period of two months from 25-8-1998 to 27-10-1998.

JUDGMENT 4. In support of the challenge to the constitutional validity of the impugned provision, besides observations made in the three-Judge Bench decision in Vineet Narain case reliance has also been placed on various decisions including S.G. Jaisinghani v. Union of India [(1967) 2 SCR 703], Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC 212], Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722] and Mardia 4 Page 4

5. Learned Solicitor General, on the other hand, though very fairly admitting that the nexus between criminals and some elements of establishment including politicians and various sections of bureaucracy has increased and also that there is a disturbing increase in the level of corruption and these problems need to be addressed, infractions of the law need to be investigated, investigations have to be conducted quickly and effectively without any interference and the investigative agencies should be allowed to function without any interference of any kind whatsoever and that they have to be insulated from any extraneous influences of any kind, contends that a legislation cannot be struck down on the ground of arbitrariness or unreasonableness as such a ground is available only to quash executive action and orders. Further contention is that even a delegated legislation cannot be quashed on the ground of mere arbitrariness and even for quashing such a legislation, manifest arbitrariness is the requirement of law. In support, reliance has been placed on observations made in a three-Judge Bench decision in State of A.P. . v. McDowell & Co. [(1996) 3 SCC 709] that no enactment can be struck down by just saying that it is arbitrary or unreasonable and observations made in Khoday Distilleries Ltd. v. State of Karnataka [1996 (10) SCC 304] that delegated legislation can be struck down only if there is manifest arbitrariness. JUDGMENT 5 Page 5 6. In short, the moot question is whether arbitrariness and unreasonableness or manifest arbitrariness and unreasonableness, being facets of Article 14 of the Constitution are available or not as grounds to invalidate a legislation. Both counsel have placed reliance on observations made in decisions rendered by a Bench of three learned Judges.

8. Having regard to the aforesaid, we are of the view that the matters deserve to be heard by a larger Bench, subject to the orders of Hon'ble the Chief Justice of India.” Background of Section 6-A 4. We may first notice the background in which Section 6-A was inserted in the DSPE Act. In 1993, Vineet Narain approached this Court under Article 32 of the Constitution of India complaining inertia by the JUDGMENT Central Bureau of Investigation (CBI) in matters where the accusation made was against high dignitaries. The necessity of monitoring the investigation 1 by this Court is indicated in paragraph 1 of the judgment , which reads: “These writ petitions under Article 32 of the Constitution of India brought in public interest, to begin with, did not appear to have the potential of escalating to the dimensions they reached or to give rise to several issues of considerable significance to the implementation of rule of law, which they have, during their progress. They began as yet another complaint of inertia by the Central Bureau of Investigation (CBI) in matters where the accusation made was against high 1 Vineet Narain & Ors. v. Union of India & Anr.; [(1998) 1 SCC 226] 6 Page 6

1 5. In Vineet Narain , Single Directive No.4.7(3), which contained certain instructions to CBI regarding modalities of initiating an inquiry or JUDGMENT registering a case against certain categories of civil servants, fell for consideration. We shall refer to Single Directive No. 4.7(3) at some length a little later but suffice to say here that this Court 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. 7 Page 7 6. Initially, the Government decided to put the proposed law in place through an Ordinance so as to comply with the directions of this Court 1 in Vineet Narain . Later on the Government introduced the CVC Bill, 1998 in

examination and report, which presented its report to the Parliament on 25.2.1999 and made certain recommendations on the CVC Bill, 1998. The Lok Sabha passed the CVC Bill, 1998 as the CVC Bill, 1999 on 15.3.1999 after adopting the official amendments moved in this regard. However, before the Bill could be considered and passed by the Rajya Sabha, the th 12 Lok Sabha was dissolved on 26.4.1999 and, consequently, the CVC Bill, 1999 lapsed. The CVC Bill was re-introduced with the title “The Central Vigilance Commission Bill, 2003”. The Bill was passed by both the Houses of Parliament and received the assent of the President on 11.9.2003. This is how the Central Vigilance Commission Act, 2003 (for short, ‘Act 45 of JUDGMENT 2003’) came to be enacted. 7. Act 45 of 2003 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 (for short, ‘PC 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 8 Page 8 authorities owned or controlled by the Central Government and for matters connected therewith or incidental thereto. Section 26 of the Act 45 of 2003 provides for amendment of DSPE Act and clause (c) thereof enacts that

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. Genesis of Challenge to Section 6-A 9. On 24.2.1997, the Writ Petition (Civil) No.38/1997 came up for admission before a three-Judge Bench. On hearing the petitioner, the writ petition was entertained but it was confined to relief in paragraph 12(a) only. The notice was directed to be issued to respondent No.1 (Director, JUDGMENT CBI) and respondent No.5 (Union of India through Cabinet Secretary) and other respondents were deleted from the array of parties. The Court on that date requested Shri Anil B. Divan, learned senior counsel to appear as amicus curiae in the case. It is not necessary to narrate the proceedings which took place on various dates. It may, however, be mentioned that on 5.4.2002 when the matter was mentioned before the Bench, learned amicus curiae expressed his concern regarding the attempt to restore the Single 9 Page 9 1 Directive, which was struck down in Vineet Narain , in the proposed legislation. Thereupon, the matter was adjourned and Court requested the presence of learned Attorney General on 19.4.2002. On 19.4.2002, the

was inserted in the DSPE Act. 10. On 19.1.2004, Writ Petition (C) No.21/2004 was ordered to be listed along with Writ Petition (C) No.38/1997. On 23.1.2004, notice was issued in Writ Petition (C) No. 21/2004. In this writ petition, the counter was filed by the Union on 7.4.2004 and rejoinder affidavit was filed by the petitioner. 11. We have heard Mr. Anil B. Divan, learned senior counsel and amicus curiae in Writ Petition (C) No.38/1997 and Mr. Prashant Bhushan, learned counsel for the petitioner in Writ Petition (C) No.21/2004. In one JUDGMENT matter, Mr. L. Nageswara Rao, learned Additional Solicitor General appeared for Union of India while in the other, Mr. K.V. Viswanathan, learned Additional Solicitor General appeared on behalf of Union of India. We have heard both of them on behalf of the Union of India. We have also heard Mr. Gopal Sankaranarayanan, learned counsel for the intervenor. Submissions of Mr. Anil B. Divan 10 Page 10 12. Mr. Anil B. Divan, learned amicus curiae argues that Section 6- A 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

the impugned provision is replicated at the State level and provision of ‘previous approval’ by respective State Governments is required, then the rule of law would completely collapse in the whole of India and no high level corruption would be investigated or punished. He relies upon decision of 1. 2 this Court in Vineet Narain He also relies upon the decision in I.R. Coelho in support of the proposition that Article 14 is a part of the rule of law and it is the duty of the judiciary to enforce the rule of law. 13. According to learned amicus curiae, Section 6-A directly presents an illegal impediment to the insulation of CBI and undermines the independence of CBI to hold a preliminary enquiry (PE) or investigation. JUDGMENT Citing the judgments of this Court in Centre for Public Interest Litigation (2G 3 4 1 Spectrum case) and Manohar Lal Sharma following Vineet Narain , learned amicus curiae submits that trend of these judgments is to preserve the rule of law by insulating the CBI from executive influence which could derail and result in inaction in enforcing the criminal law against high level corruption. Learned amicus curiae highlighted that there was no 2 I.R. Coelho v. State of Tamil Nadu; [(2007) 2 SCC 1]. 3 Centre for Public Interest Litigation & Ors. v. Union of India & Ors.; [(2012) 3 SCC 1]. 4 Manohar Lal Sharma v. Principal Secretary & Ors.; [(2014) 2 SCC 532]. 11 Page 11 requirement of previous approval as contained in the impugned provisions 1 between 18.12.1997 (the date of Vineet Narain judgment striking down the Single Directive) and 11.9.2003 (when CVC Act came into force) except the

referred to N.N. Vohra Committee report which paints a frightening picture of criminal-bureaucratic-political nexus – a network of high level corruption – and submitted that the impugned provision puts this nexus in a position to block inquiry and investigation by CBI by conferring the power of previous approval on the Central Government. 14. Mr. Anil B. Divan, learned amicus curiae wants us to take judicial notice of the fact that high level bureaucratic corruption goes hand in hand, on many occasions, with political corruption at the highest level. This very group of high ranking bureaucrats, whose misconduct and criminality, if any, requires to be first inquired into and thereafter JUDGMENT investigated, can thwart, defeat and impair this exercise. In substance, the potential accused would decide whether or not their conduct should be inquired into. He argues that 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 6-A of the DSPE Act. 12 Page 12 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 6-A,

even allowed to verify complaints by preliminary enquiry, how can the case move forward? In such a situation, the very commencement of enquiry / investigation is thwarted and delayed. Moreover, 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, it will not be able to even gather relevant material for the purpose of obtaining previous approval. 15. Learned amicus curiae submits that for judging the validity of classification or reasonableness or arbitrariness of State action, the Court is entitled to take notice of conditions prevailing from time to time. He JUDGMENT referred to certain portions of the N.N. Vohra Committee report, 2G 3 Spectrum case and the facts of a case before Delhi High Court entitled 5 ‘ Telecom Watchdog ’ and the case of M. Gopalakrishnan, Chairman and Managing Director (CMD of Indian Bank). Learned amicus curiae also relied 6 7 upon decisions of this Court in V.G. Row and D.S. Nakara . 5 Telecom Watchdog v. Union of India; (Delhi High Court W.P.(C) No. 9338/2009). 6 State of Madras v. V.G. Row; [1952 SCR 597]. 7 D.S. Nakara and Ors. v. Union of India; [(1983) 1 SCC 305]. 13 Page 13 16. It is submitted by the learned amicus curiae that pervasive corruption adversely affects welfare and other activities and expenditures of the state. Consequently, the rights of Indian citizens not only under Article

9 10 11 Subramanian Swamy , R.A. Mehta , Balakrishna Dattatrya Kumbhar and 12 In re. Special Courts Bill, 1978 . 17. Learned amicus curiae submits that Section 6-A confers on the Central Government unguided, unfettered and unbridled power and the provision is manifestly arbitrary, entirely perverse and patently unreasonable. He relies upon the decisions of this Court in Travancore 13 14 Chemicals and Manufacturing Co. , Krishna Mohan (P) Ltd. , Canara 15 16 Bank and Nergesh Meerza . 18. It is vehemently contended by the learned amicus curiae that JUDGMENT the classification as contained in Section 6-A 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 8 State of M.P. and Ors. v. Ram Singh; [(2000) 5 SCC 88]. 9 Subramanian Swamy v. Manmohan Singh and Anr.; [(2012) 3 SCC 64]. 10 State of Gujarat and Anr. v. Justice R.A. Mehta(Retd.) and Ors.; [(2013) 3 SCC 1]. 11 State of Maharashtra v. Balakrishna Dattatrya Kumbhar; [(2012) 12 SCC 384]. 12 Special Courts Bill, 1978, In re,; [(1979) 1 SCC 380]. 13 State of Kerala and Ors. v. Travancore Chemicals and Manufacturing Co. and Anr.; [(1998) 8 SCC 188]. 14 Krishna Mohan (P) Ltd. v. Municipal Corporation of Delhi and Ors.; [(2003) 7 SCC 151]. 15 District Registrar and Collector, Hyderabad and Anr. v. Canara Bank and Ors.; [(2005) 1 SCC 496]. 16 Air India v. Nergesh Meerza and Ors.; [(1981) 4 SCC 335]. 14 Page 14 the DSPE Act and undermines the object of detecting and punishing high level corruption. In this regard, learned amicus curiae referred to protection given to Government officials under Section 197 of the Code of Criminal

intelligible differentia and (ii) that differentia must have a rational relation with the object sought to be achieved by the legislation, are not satisfied by Section 6-A. A privileged class of Central Government employees has been created inasmuch as the protection offered to the category of the government officers of the level of Joint Secretary and above regarding previous approval does not extend to: (a) official / employees who are not employees of the Central Government, (b) employees of the Central Government below Joint Secretary level, (c) employees of Joint Secretary level and above in the states, (d) enquiry and investigation of offences which are not covered by the PC Act, 1988, and (e) other individuals JUDGMENT including ministers, legislators and private sector employees. Learned 17 amicus curiae relies upon the decision of this Court in Vithal Rao . Submissions of Mr. Prashant Bhushan for Centre for Public Interest Litigation (CPIL-petitioner) 19. Mr. Prashant Bhushan, learned counsel for the petitioner in the connected writ petition filed by Centre for Public Interest Litigation (CPIL) 17 Nagpur Improvement Trust and Anr. v. Vithal Rao and Ors.; [(1973) 1 SCC 500]. 15 Page 15 has adopted the arguments of the learned amicus curiae . He submits that Section 6-A makes criminal investigation against a certain class of public servants unworkable and it completely militates against the rule of law. He

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. Submissions of Mr. Gopal Sankaranarayanan (intervenor) 20. Mr. Gopal Sankaranarayanan, appearing on behalf of intervenor submits that Section 6-A of the DSPE Act breaches the basic feature of rule of law. He argues that the basic structure test can be applied to the statutes as well. By enactment of Section 6-A, the rule of law has suffered a two-fold violation: (i) resurrection of the single directive in the JUDGMENT form of legislation without in any way removing the basis of the Vineet 1 Narain judgment, and (ii) impediment of the due process (criminal investigation) by imposing a condition at the threshold. In this regard, he 18 has relied upon decisions of this Court in State of Karnataka , L. Chandra 18 State of Karnataka v. Union of India and Anr.; [(1977) 4 SCC 608]. 16 Page 16 19 20 21 Kumar , Kuldip Nayar , Madras Bar Association , K.T. Plantation (P) 22 23 24 2 Ltd. , G.C. Kanungo , Indra Sawhney (2) , and I.R. Coelho . 21. Mr. Gopal Sankaranarayanan, learned counsel for the

if valid has no nexus with the object sought to be achieved by Section 6-A, which is apparently to protect the officers concerned. According to learned counsel, Section 6-A is also inconsistent with the Cr.P.C. In this regard, he refers to CBI Manual, Sections 19 and 22 of the PC Act, 1988 and Section 197 of Cr.P.C. Submissions of Mr. L. Nageswara Rao, ASG . 22. Mr. L. Nageswara Rao, learned Additional Solicitor General stoutly defends Section 6-A. He submits that the rationale behind Section 6- A of the DSPE Act can be seen in the reply to the debate in Parliament on JUDGMENT the Central Vigilance Commission Bill by the then Union Minister of Law and Justice, Mr. Arun Jaitley. The provision is defended on the ground that 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 19 L. Chandra Kumar v. Union of India and Ors.; [(1997) 3 SCC 261]. 20 Kuldip Nayar and Ors. v. Union of India and Ors.; [(2006) 7 SCC 1]. 21 Union of India v. R. Gandhi, President, Madras Bar Association; [(2010) 11 SCC 1]. 22 K.T. Plantation (P) Ltd. & Anr. v. State of Karnataka; [(2011) 9 SCC 1]. 23 G.C. Kanungo v. State of Orissa; [(1995) 5 SCC 96]. 24 Indra Sawhney (2) v. Union of India and Ors.; [(2000) 1 SCC 168]. 17 Page 17 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

honest advice to political executives, the senior officers at the decision- making level would only give safe and non-committal advice. He argues that the object of Section 6-A 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. In this regard, the legal principles enunciated in K. 25 Veeraswami were strongly pressed into service by Mr. L. Nageswara Rao. 23. It is argued by the learned Additional Solicitor General that Section 6-A is not an absolute bar because it does not prohibit investigation against senior government servants as such. It only provides a filter or pre- JUDGMENT check so that the Government can ensure that senior officers at decision- making level are not subjected to unwarranted harassment. 24. Emphasizing that the Central Government is committed to weeding out vice of corruption, learned Additional Solicitor General submits that requests for approval under Section 6-A are processed expeditiously after the Government of India had constituted a Group of Ministers to 25 K. Veeraswami v. Union of India and Ors.; [(1991) 3 SCC 655]. 18 Page 18 consider certain measures that could be taken by Government to tackle corruption and the Group of Ministers suggested the measures to ensure that the requests received from CBI under Section 6-A are examined on

submits that arbitrariness and unreasonableness cannot by themselves be a ground to strike down legislation. With reference to the decision of this 26 Court in E.P. Royappa he argues that while proposing a new dimension of arbitrariness as an anti-thesis to equality in Article 14, the Court used arbitrariness to strike down administrative action and not as a ground to test 27 legislations. He submits that in Maneka Gandhi the Court has not held that arbitrariness by itself is a ground for striking down legislations under Article 28 14. Ajay Hasia , learned Additional Solicitor General contends, also does not make arbitrariness a ground to strike down legislation. Distinguishing 29 Malpe Vishwanath Acharya , he submits that this Court used the JUDGMENT classification test to hold legislation to be arbitrary and the provision of standard rent in Bombay Rent Control Act was struck down as having become unreasonable due to passage of time. Learned Additional Solicitor 30 General also distinguished Mardia Chemicals Ltd . He vehemently contends that Courts cannot strike down legislations for being arbitrary and 26 E.P. Royappa v. State of T.N. and Anr.; [(1974) 4 SCC 3] 27 Maneka Gandhi v. Union of India and Anr.; [(1978) 1 SCC 248]. 28 Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors.; [(1981) 1 SCC 722]. 29 Malpe Vishwanath Acharya and Ors. v. State of Maharashtra and Anr.; [(1998) 2 SCC 1] 30 Mardia Chemicals Ltd. and Ors. v. Union of India and Ors.; [(2004) 4 SCC 311]. 19 Page 19 unreasonable so as to substitute their own wisdom for that of the legislature. 26. Mr. L. Nageswara Rao submits that wisdom of legislature

unreasonable or unjust. In this regard, he relies upon Kesavananda 31 12 Bharati . He also referred to In re. Special Courts Bill, 1978 , which explained the principles enshrined in Article 14. In support of principle that legislations can be declared invalid or unconstitutional only on two grounds: (a) lack of legislative competence, and (b) violation of any fundamental rights or any provision of the Constitution, learned Additional Solicitor 20 General relies upon Kuldip Nayar . He also relies upon Ashoka Kumar 32 Thakur in support of the proposition that legislation cannot be challenged simply on the ground of unreasonableness as that by itself does not constitute a ground. He submits that a Constitution Bench in K.T. Plantation JUDGMENT 22 (P) Ltd. has held that plea of unreasonableness, arbitrariness, proportionality, etc., always raises an element of subjectivity on which Court cannot strike down a statute or a statutory provision. Unless a constitutional infirmity is pointed out, a legislation cannot be struck down by just using the word ‘arbitrary’. In this regard, he heavily relies upon the decisions of this 31 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr.; [(1973) 4 SCC 225]. 32 Ashoka Kumar Thakur v. Union of India and Ors.; [(2008) 6 SCC 1]. 20 Page 20 33 34 Court in In re. Natural Resources Allocation , McDowell and Rakesh 35 36 Kohli . The decision of the US Supreme Court in Heller is also cited by the learned Additional Solicitor General in support of the proposition that

legislative policy. 27. Mr. L. Nageswara Rao, learned Additional Solicitor General argues that rule of law cannot be a ground for invalidating legislations without reference to the Constitution. He submits that rule of law is not a 37 concept above the Constitution. Relying upon Indira Nehru Gandhi , learned Additional Solicitor General argues that meaning and constituent elements of rule of law must be gathered from the enacting provisions of the Constitution; vesting discretionary powers in the Government is not contrary to the rule of law. Moreover, he submits that exceptions to the procedure in Cr.P.C. cannot be violative of Articles 14 and 21 and such exceptions cannot be termed as violating the rule of law. In this regard, JUDGMENT learned Additional Solicitor General refers to Section 197 of Cr.P.C. and 38 relies upon Matajog Dobey , wherein this Court upheld constitutional validity of Section 197 and held that the said provision was not violative of Article 14. He also referred to Section 187 of Cr.P.C., Section 6 of the 33 Natural Resources Allocation, In re, Special Reference No. 1 of 2012; [(2012) 10 SCC 1]. 34 State of A.P. and Ors. v. McDowell & Co. and Ors.; [(1996) 3 SCC 709]. 35 State of M.P. v. Rakesh Kohli and Anr.; [(2012) 6 SCC 312]. 36 Heller v. Doe; [509 U.S. 312 (1993)]. 37 Indira Nehru Gandhi v. Raj Narain [1975 (Suppl.) SCC 1] 38 Matajog Dobey v. H. C. Bhari; [(1955) 2 SCR 925] 21 Page 21 Armed Forces (Special Provisions) Act, 1958 and Section 187-A of the Sea Customs Act and submitted that these provisions have been held to be constitutionally valid by this Court. Naga People’s Movement of Human

40 constitutional and Manhar Lal Bhogilal was cited wherein Section 187-A of the Sea Customs Act was held valid. Learned Additional Solicitor General has also referred to Section 42 of the Food Safety and Standards Act, 2006, Section 50 of the Prevention of Terrorism Act, 2002, Section 12 of the Suppression of Unlawful Acts Against Safety Of Maritime Navigation And Fixed Platforms On Continental Shelf Act, 2002, Section 23 of the Maharashtra Control of Organised Crime Act, 1999, Section 45 of the Unlawful Activities (Prevention) Act, 1967, Section 20-A of the Terrorist and Disruptive Activities (Prevention) Act, 1987, Section 137 of the Customs Act, 1962, Section 11 of the Central Sales Tax Act, 1956, Section 7 of the JUDGMENT Explosive Substances Act, 1908, Section 20 of the Prevention of Food Adulteration Act, 1954, Section 23 of Lokpal and Lokayuktas Act, 2013, Section 11 of Cotton Ginning and Pressing Factories Act, 1925, Section 12 of Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, Section 16 of Gujarat Electricity Supply Undertakings (Acquisition) Act, 1969, Section 24 of Karnataka Control of Organized Crimes Act, 2000 and Section 9 of Bihar Non-Government Educational Institution (Taking Over) Act, 1988 to 39 Naga People’s Movement of Human Rights v. Union of India;[(1998) 2 SCC 109] 40 Manhar Lal Bhogilal Shah v. State of Maharashtra; [(1971) 2 SCC 119] 22 Page 22 demonstrate that there are large number of provisions where permission of the Government is required before taking cognizance or for institution of an offence.

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. In this regard, learned Additional Solicitor General has 41 relied upon the decisions of this Court in Ram Krishna Dalmia , Union of 42 12 India and Re: Special Courts Bill, 1978 . He also referred to the proceedings of the Joint Parliamentary Committee, Law Minister’s Speech, the Government of India (Transaction of Business) Rules and the Central Secretariat Manual of Procedure. JUDGMENT 29. Mr. L. Nageswara Rao submits that 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. He cited the judgments of this Court in Re 41 Ram Krishna Dalmia v. Justice S.R. Tendolkar & Ors.; [1959 SCR 279] 42 Union of India & Ors. v. No.664950 IM Havildar/ Clerk SC Bagari; [(1999) 3 SCC 709] 23 Page 23 12 43 44 Special Courts Bill, 1978 , N.B. Khare , Mafatlal Industries and Sushil 45 Kumar Sharma . 30. Learned Additional Solicitor General submits that conferment

27 38 upon the decision of this Court in Maneka Gandhi , Matajog Dubey , V.C. 46 47 Shukla and V.C.Shukla (IInd) . He also submits that absence of guidelines can only make the exercise of power susceptible to challenge 48 49 and not the legislation. In this regard, Pannalal Binjraj and Jyoti Pershad are cited by him. Submissions of Mr. K.V. Viswanathan, ASG 31. Mr. K.V. Viswanathan, learned Additional Solicitor General submits that there is presumption of constitutionality and mutual respect inherent in doctrine of separation of powers. He relies upon Bihar Distillery JUDGMENT 50 Ltd. . 32. Mr. K.V. Viswanathan, learned Additional Solicitor General referred to Sections 7, 11 and 13 of the PC Act, 1988 in order to show that all these provisions relate to discharge of official functions. The officers 43 N.B.Khare (Dr.) v. State of Delhi;[1950 SCR 519] 44 Mafatlal Industries Ltd. & Ors. v. Union of India & Ors.; [(1997) 5 SCC 536] 45 Sushil Kumar Sharma v. Union of India & Ors.; [(2005) 6 SCC 281] 46 V.C. Shukla v. State through CBI; [1980 Supp SCC 92] 47 V.C. Shukla v. State (Delhi Administration); [1980 Supp SCC 249] 48 Pannalal Binjraj & Anr. etc., etc. v. Union of India & Ors.; [1957 SCR 233] 49 Jyoti Pershad v. Administrator for the Union Territory of Delhi & Ors. [(1962) 2 SCR 125] 50 State of Bihar & Ors. v. Bihar Distillery Ltd. & Ors.;[(1997) 2 SCC 453] 24 Page 24 above the Joint Secretary level are bestowed with crucial decision making 51 responsibilities. Citing Kripalu Shankar and the speech of the then Minister of Law and Justice, he submits that people in decision making

observations of this Court that lodging of FIR against a government official especially, one who occupies top position in a department, even if baseless, would do incalculable harm not only to the officer in particular, but to the department he belongs to, in general. 33. Mr. K.V. Viswanathan has highlighted that corruption has two aspects: (a) aspect related to decision making – abuse of position, pecuniary loss to the Government etc. and (b) aspect of illegal pecuniary gain – bribery etc. That abuse of position in order to come within the mischief of corruption must necessarily be dishonest so that it may be proved that the officer caused deliberate loss to the department. Mere JUDGMENT violation of codal provisions, or ordinary norms of procedural behaviour does not amount to corruption. He cites decisions of this Court in S.P. 53 54 55 Bhatnagar , Major S. K. Kale , C. Chenga Reddy and Abdulla 56 Mohammed Pagarkar . 51 State of Bihar & Ors. v. Kripalu Shankar & Ors.; [(1987) 3 SCC 34] 52 P. Sirajuddin, etc. v. State of Madras, etc.; [(1970) 1 SCC 595] 53 S.P. Bhatnagar v. State of Maharashtra; [(1979) 1 SCC 535] 54 Major S. K. Kale v. State of Maharashtra; [(1977) 2 SCC 394] 55 C. Chenga Reddy & Ors. v. State of A.P.; [(1996) 10 SCC 193] 56 Abdulla Mohammed Pagarkar v. State (UT of Goa, Daman & Diu); [(1980) 3 SCC 110] 25 Page 25 34. Learned Additional Solicitor General submits that the State is the first victim of corruption and the executive is in the best position to adjudge whether it has been a victim of corruption. Section 6-A has been

57 this Court in A.R. Antulay . 35. Mr. K.V. Viswanathan has referred to other provisions under law providing for the aggrieved authority to take a decision whether the offence has been made out or not. In this regard, he has invited our attention to Section 195 of Cr.P.C. and the decision of this Court in Patel 58 Laljibhai Somabhai . He also referred to Section 340 of Cr.P.C. which allows the court to adjudge whether perjury was committed, and if it was, then whether it required prosecution. He relies upon the decision of this 59 Court in Iqbal Singh Marwah . JUDGMENT 4 36. Citing Manohar Lal Sharma , learned Additional Solicitor General submits that even in a court monitored investigation, the concerned officer could approach the concerned court for an opportunity to be heard. 4 Moreover, in Manohar Lal Sharma , this court has noticed the office memorandum dated 26.09.2011 approving the recommendations made by the Group of Ministers which provides inter alia for the concerned authority 57 R.S. Nayak v. A.R. Antulay; [(1984) 2 SCC 183] 58 Patel Laljibhai Somabhai v. State of Gujarat [(1971) 2 SCC 376] 59 Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr.; [(2005) 4 SCC 370] 26 Page 26 to give reasons for granting/rejecting sanction under Section 6-A. He submits that when there is denial of sanction order under Section 6-A, such order of the Central Government could be challenged in a writ petition

corruption. Principles applicable to Article 14 37. Article 14 reads: “14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India .” 38. The first part of Article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism. The second part, which is a corollary of the first and is JUDGMENT based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination of favouritism. It is a pledge of the protection of equal laws, 12 that is, laws that operate alike on all persons under like circumstances . 39. Article 14 of the Constitution incorporates concept of equality and equal protection of laws. The provisions of Article 14 have engaged 27 Page 27 the attention of this Court from time to time. The plethora of cases dealing with Article 14 has culled out principles applicable to aspects which commonly arise under this Article. Among those, may be mentioned, the

65 66 67 Qasim Razvi , Habeeb Mohamed , Kedar Nath Bajoria and innovated to even associate the members of this Court to contribute their V.M. Syed 68 Mohammad & Company . The most of the above decisions were 69 considered in Budhan Choudhry . This Court exposited the ambit and 69 scope of Article 14 in Budhan Choudhry as follows: “It is now well-established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well-established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure.” JUDGMENT 60 Chiranjit Lal Chowdhuri v. Union of India & Ors.; [(1950) SCR 869] 61 State of Bombay & Anr. v. F. N. Balsara; [(1951) SCR 682] 62 State of West Bengal v. Anwar Ali Sarkar[(1952) SCR 284] 63 Kathi Raning Rawat v. State of Saurashtra [1952 SCR 435] 64 Lachmandas Kewalram Ahuja v. State of Bombay [1952 SCR 710] 65 Syed Qasim Razvi v. State of Hyderabad & Ors. [(1953) 4 SCR 589) 66 Habeeb Mohamed v. State of Hyderabad [1953 SCR 661] 67 Kedar Nath Bajoria v. State of West Bengal [(1954) SCR 30] 68 V.M. Syed Mohammad & Company v. State of Andhra Pradesh [(1954) SCR 1117] 69 Budhan Choudhry & Ors. v. State of Bihar [(1955) 1 SCR 1045] 28 Page 28 41 40. In Ram Krishna Dalmia , the Constitution Bench of five Judges further culled out the following principles enunciated in the above cases -

(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; (e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and JUDGMENT (f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.” 41 41. In Ram Krishna Dalmia , it was emphasized that the above principles will have to be constantly borne in mind by the court when it is 29 Page 29 called upon to adjudge the constitutionality of any particular law attacked as discriminatory and violative of the equal protection of laws. 42. Having culled out the above principles, the Constitution Bench

Constitution may be placed in one or other of the following five classes: “(i) A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances known to or brought to the notice of the court. In determining the validity or otherwise of such a statute the court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply only to a particular person or thing or only to a certain class of persons or things. Where the court finds that the classification satisfies the tests, the court will uphold the validity of the law. JUDGMENT (ii) A statute may direct its provisions against one individual person or thing or to several individual persons or things but no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowledge. In such a case the court will strike down the law as an instance of naked discrimination. (iii) A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to 30 Page 30

(iv) A statute may not make a classification of the persons or things for the purpose of applying its provisions and may leave it to the discretion of the Government to select and classify the persons or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification. (v) A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercise of discretion by the Government in the matter of such selection or classification. If the Government in making the selection or classification does not proceed on or follow such policy or principle, then in such a case the executive action but not the statute should be condemned as unconstitutional.” JUDGMENT 17 43. In Vithal Rao , the five-Judge Constitution Bench had an occasion to consider the test of reasonableness under Article 14 of the Constitution. It noted that the State can make a reasonable classification for the purpose of legislation and that the classification in order to be reasonable must satisfy two tests: (i) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question. The 31 Page 31 Court emphasized that in this regard object itself should be lawful and it cannot be discriminatory. If the object is to discriminate against one section of the minority, the discrimination cannot be justified on the ground

44. The constitutionality of Special Courts Bill, 1978 came up for 12 consideration in re. Special Courts Bill, 1978 as the President of India made a reference to this Court under Article 143(1) of the Constitution for consideration of the question whether the “Special Courts Bill” or any of its provisions, if enacted would be constitutionally invalid. The seven Judge Constitution Bench dealt with the scope of Article 14 of the Constitution. 69 Noticing the earlier decisions of this Court in Budhan Choudhry , Ram 41 70 71 49 Krishna Dalmia , C.I. Emden , Kangsari Haldar , Jyoti Pershad and 72 Ambica Mills Ltd . , in the majority judgment the then Chief Justice Y.V. Chandrachud, inter alia, exposited the following propositions relating to JUDGMENT Article 14: “(1) xxx xxx xxx (2) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws. 70 C.I. Emden v. State of U.P.; [(1960) 2 SCR 592] 71 Kangsari Haldar & Anr. v. State of West Bengal; [(1960) 2 SCR 646] 72 State of Gujarat & Anr. v. Shri Ambica Mills Ltd., Ahmedabad & Anr.; [(1974) 3 SCR 760] 32 Page 32

(4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same. (5) By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well- defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily. JUDGMENT (6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive. (7) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the 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. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped 33 Page 33 together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.

(9) If the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the Legislature, its action can be annulled as offending against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied. (10) Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power. JUDGMENT (11) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. 34 Page 34 (12) Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 must be determined in each case as it arises, for, no general rule applicable to all cases can safely be laid down. A practical assessment of the operation of the law in the particular circumstances is necessary.

16 45. In Nergesh Meerza , the three-Judge Bench of this Court while dealing with constitutional validity of Regulation 46(i)(c) of Air India Employees’ Service Regulations (referred to as ‘A.I. Regulations’) held that certain conditions mentioned in the Regulations may not be violative of Article 14 on the ground of discrimination but if it is proved that the conditions laid down are entirely unreasonable and absolutely arbitrary, then the provisions will have to be struck down. With regard to due process clause in the American Constitution and Article 14 of our JUDGMENT 62 Constitution, this Court referred to Anwar Ali Sarkar , and observed that the due process clause in the American Constitution could not apply to our 73 Constitution. The Court also referred to A.S. Krishna wherein Venkatarama Ayyar, J. observed: “The law would thus appear to be based on the due process clause, and it is extremely doubtful whether it can have application under our Constitution.” 73 A.S. Krishna v. State of Madras; [1957 S.C.R. 399] 35 Page 35 7 46. In D.S. Nakara , the Constitution Bench of this Court had an occasion to consider the scope, content and meaning of Article 14. The Court referred to earlier decisions of this Court and in para 15 (pages 317- 318), the Court observed: “Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.” 26 47. In E.P. Royappa , it has been held by this Court that the basic principle which informs both Articles 14 and 16 are equality and inhibition against discrimination. This Court observed in para 85 (page 38 of the report) as under: “….From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.” JUDGMENT Court’s approach 48. 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 36 Page 36 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

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. JUDGMENT 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. Consideration 37 Page 37 49. Several objections have been raised against this provision in the context of Article 14. First, we shall consider the challenge against the validity of classification which Section 6-A(1) makes and the lack of

seeks to achieve. 50. The impugned provision, viz., Section 6-A came to be enacted 1 after the decision of this Court in Vineet Narain . It is important to bear in 1 mind that the three-Judge Bench of this Court in Vineet Narain was directly concerned with constitutional validity of the Single Directive No. 4.7(3), which to the extent relevant for the present purposes, reads: “4.7(3)( i ) 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. JUDGMENT (ii) xxx xxx xxx (iii) xxx xxx xxx (iv) xxx xxx xxx.” 51. The above provision contained in Single Directive 4.7(3)(i) was 1 sought to be justified by the learned Attorney General in Vineet Narain on 38 Page 38 the ground that the officers at the decision making level need the protection against malicious or vexatious investigations in respect of honest decisions 1 taken by them. Learned Attorney General in Vineet Narain submitted that

procedure reasonable and to provide for an objective decision being taken for the grant of sanction within the specified time. It was urged that refusal of sanction would enable judicial review of that decision in case of any grievance. 1 52. This Court in Vineet Narain took notice of the report submitted by IRC, which recorded: “In the past several years, there has been progressive increase in allegations of corruption involving public servants. Understandably, cases of this nature have attracted heightened media and public attention. A general impression appears to have gained ground that the Central investigating agencies concerned are subject to extraneous pressures and have been indulging in dilatory tactics in not bringing the guilty to book. The decisions of higher courts to directly monitor investigations in certain cases have added to the aforesaid belief.” JUDGMENT 53. The Court then discussed the earlier decisions of this Court in 74 25 J.A.C. Saldanha and K. Veeraswami and also the provisions of the DSPE Act and held that: “Powers of investigation which are governed by the statutory provisions and they cannot be curtailed by any executive instruction.” Having said that, this Court stated that the law did not classify 74 State of Bihar & Anr. v. J.A.C. Saldanha & Ors.; [(1980) 1 SCC 554] 39 Page 39 offenders differently for treatment thereunder, including investigation of offences and prosecution for offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in

above the specified level who are described as decision-making officers. Negativing that any distinction can be made for them for the purpose of investigation of an offence of which they are accused, this Court in paragraphs 45 and 46 held as under: “45. Obviously, where the accusation of corruption is based on direct evidence and it does not require any inference to be drawn dependent on the decision-making process, there is no rational basis to classify them differently. In other words, if the accusation be of bribery which is supported by direct evidence of acceptance of illegal gratification by them, including trap cases, it is obvious that no other factor is relevant and the level or status of the offender is irrelevant. It is for this reason that it was conceded that such cases, i.e., of bribery, including trap cases, are outside the scope of the Single Directive. After some debate at the Bar, no serious attempt was made by the learned Attorney General to support inclusion within the Single Directive of cases in which the offender is alleged to be in possession of disproportionate assets. It is clear that the accusation of possession of disproportionate assets by a person is also based on direct evidence and no factor pertaining to the expertise of decision-making is involved therein. We have, therefore, no doubt that the Single Directive cannot include within its ambit cases of possession of disproportionate assets by the offender. The question now is only with regard to cases other than those of bribery, including trap cases, and of possession of disproportionate assets being covered by the Single Directive. JUDGMENT 46. There may be other cases where the accusation cannot be supported by direct evidence and is a matter of inference of corrupt motive for the decision, with nothing to prove directly any illegal gain to the decision-maker. Those are cases in which the inference 40 Page 40

54. This Court, accordingly, declared Single Directive 4.7(3)(i) being invalid. 55. Section 6-A replicates Single Directive 4.7(3)(i), which was struck down by this Court. The only change is that executive instruction is JUDGMENT replaced by the legislation. Now, insofar as the vice that was pointed out by this Court that powers of investigation which are governed by the statutory provisions under the DSPE Act and they cannot be estopped or curtailed by any executive instruction issued under Section 4(1) of that Act is concerned, it has been remedied. But the question remains, and that is what has been raised in these matters, whether Section 6-A meets the touchstone of Article 14 of the Constitution. 41 Page 41 56. Can classification be made creating a class of the government officers of the level of Joint Secretary and above level and certain officials in public sector undertakings for the purpose of inquiry/investigation into an

of the public servant for the purpose of inquiry/investigation into the allegation of graft which amounts to an offence under the PC Act, 1988? Can the Legislature lay down different principles for investigation/inquiry into the allegations of corruption for the public servants who hold a particular position? Is such classification founded on sound differentia? To answer these questions, we should eschew the doctrinaire approach. Rather, we should test the validity of impugned classification by broad considerations having regard to the legislative policy relating to prevention of corruption enacted in the PC Act, 1988 and the powers of inquiry/investigation under the DSPE Act. JUDGMENT 57. 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 42 Page 42 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

reasonable having rational relation to the object sought to be achieved is immaterial. 58. It seems to us that classification which is made in Section 6-A 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. 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 JUDGMENT 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. 59. Corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which has been made 43 Page 43 in Section 6-A 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

of equal laws. But laws may classify...... A reasonable classification is one which includes all who are similarly situated and none who are not”. Mathew, J., while explaining the meaning of the words, ‘similarly situated’ stated that we must look beyond the classification to the purpose of the law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good. The classification made in Section 6-A neither eliminates public mischief nor achieves some positive public good. On the other hand, it advances public mischief and protects the crime-doer. The provision thwarts an independent, unhampered, unbiased, efficient and fearless inquiry / investigation to track JUDGMENT down the corrupt public servants. 60. 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 6-A would result in indirectly putting to notice the officers to be investigated before commencement of investigation. Moreover, if the CBI is not even 44 Page 44 allowed to verify complaints by preliminary enquiry, how can the case move forward? A preliminary enquiry is intended to ascertain whether a prima facie case for investigation is made out or not. If CBI is prevented

not able to collect the material even to move the Government for the purpose of obtaining previous approval from the Central Government. 61. It is important to bear in mind that as per the CBI Manual, (Paragraph 9.10) a preliminary enquiry relating to allegations of bribery and corruption should be limited to the scrutiny of records and interrogation of bare minimum persons which being necessary to judge whether there is any substance in the allegations which are being enquired into and whether the case is worth pursuing further or not. Even this exercise of scrutiny of records and gathering relevant information to find out whether the case is worth pursuing further or not is not possible. In the criminal justice system, JUDGMENT the inquiry and investigation into an offence is the domain of the police. The very power of CBI to enquire and investigate into the allegations of bribery and corruption against a certain class of public servants and officials in public undertakings is subverted and impinged by Section 6-A. 62. The justification for having such classification is founded principally on the statement made by the then Minister of Law and Justice that if no protection is to be given to the officers, who take the decisions and 45 Page 45 make discretions, then anybody can file a complaint and an inspector of the CBI or the police can raid their houses any moment. If this elementary protection is not given to the senior decision makers, they would not tender

justification for classification in Section 6-A is also put forth on the basis of the report of the Joint Parliamentary Committee to which CVC Bill, 1999 was referred particularly at the question relating to Clause 27 regarding amendment of the DSPE Act (the provision which is now Section 6-A). The Joint Parliamentary Committee, in this regard noted as follows: “The Committee note that many witnesses who appeared before the Committee had expressed the need to protect the bonafide actions at the decision making level. At present there is no provision in the Bill for seeking prior approval of the Commission or the head of the Department etc. for registering a case against a person of the decision making level. As such, no protection is available to the persons at the decision making level. In this regard, the Committee note that earlier, the prior approval of the Government was required in the form of a ‘Single Directive’ which was set aside by the Supreme Court. The Committee feel that such a protection should be restored in the same format which was there earlier and desire that the power of giving prior approval for taking action against a senior officer of the decision making level should be vested with the Central Government by making appropriate provision in the Act. The Committee, therefore, recommend that Clause 27 of the Bill accordingly amended so as to insert a new section 6A to the DSPE Act, 1946, to this effect.” JUDGMENT 46 Page 46 63. As a matter of fact, the justification for Section 6-A which has been put forth before us on behalf of the Central Government was the 1 justification for Single Directive 4.7(3)(i) in Vineet Narain as well.

person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. We are in agreement with the above observation in Vineet 1 Narain , which, in our opinion, equally applies to Section 6-A. In Vineet 1 Narain , this Court did not accept the argument that the Single Directive is applicable only to certain class of officers above the specified level who are decision making officers and a distinction can be made for them for the purpose of investigation of an offence of which they are accused. We are also clearly of the view that no distinction can be made for certain class of officers specified in Section 6-A who are described as decision making JUDGMENT officers for the purpose of inquiry/investigation into an offence under the PC Act, 1988. There is no rational basis to classify the two sets of public servants differently on the ground that one set of officers is decision making officers and not the other set of officers. If there is an accusation of bribery, graft, illegal gratification or criminal misconduct against a public servant, then we fail to understand as to how the status of offender is of any relevance. Where there are allegations against a public servant which amount to an offence under the PC Act, 1988, no factor pertaining to 47 Page 47 expertise of decision making is involved. Yet, Section 6-A makes a distinction. It is this vice which renders Section 6-A violative of Article 14. Moreover, the result of the impugned legislation is that the very group of

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. 64. It is true that sub-Section (2) of Section 6-A has taken care of 1 observations of this Court in Vineet Narain insofar as trap cases are concerned. It also takes care of the infirmity pointed out by this Court that in the absence of any statutory requirement of prior permission or sanction for investigation, it cannot be imposed as a condition precedent for JUDGMENT initiation of investigation, but, Section 6-A continues to suffer from the other two infirmities which this Court noted concerning Single Directive, viz.; (a) where inference is to be drawn that the decision must have been for corrupt motive and direct evidence is not there, the expertise to take decision whether to proceed or not in such cases should be with the CBI itself and not with the Central Government and (b) in any event the final decision to commence investigation into the offences must be of the CBI with the 48 Page 48 internal aid and advice and not of anybody else. Section 6-A also suffers from the vice of classifying offenders differently for treatment thereunder for inquiry and investigation of offences, according to their status in life. Every

everyone. 65. Way back in 1993, the Central Government constituted a Committee under the Chairmanship of the former Home Secretary (Shri N.N. Vohra) to take stock of all available information about the activities of the crime syndicates/mafia organizations, which had developed links with and were being permitted by Government functionaries and political personalities. In para 14.3 of the report, the Committee has observed that linkages of crime syndicate with senior Government functionaries or political leaders in the States or at the Centre could have a destabilizing effect on the functioning of the Government. The report paints a frightening JUDGMENT picture of criminal-bureaucratic-political nexus – a network of high level corruption. The impugned provision puts this nexus in a position to block inquiry and investigation by CBI by conferring the power of previous approval on the Central Government. 66. A class of Central Government employees has been created in Section 6-A inasmuch as it offers protection to a class of the Government officers of the level of Joint Secretary and above to whom DSPE Act 49 Page 49 applies but no such protection is available to the officers of the same level, who are posted in various States. This position is accepted by CBI. Mr. Sidharth Luthra, learned Additional Solicitor General placed before us the

bank / public sector undertaking of Central Govt. in the rank of Joint Secretary and above while posting in the State and alleged to have committed an offence under P.C. Act, can be investigated by State Police or CBI? Answer No.1 : Yes, both State Police and CBI have jurisdiction under P.C. Act over such officers. The jurisdiction of CBI is, however, subject to Section 6(A) of DSPE Act and consent of the State Govt. u/s 6 of the DSPE Act, 1946. Question No.2 : Whether an employee of All India Service i.e. IPS, IAS and Indian Forest Services while posted in the State Govt. at the JS level and above can claim protection under 6(A)? JUDGMENT Answer No.2 : No, as the very wording of Section 6(A) mentions only the employees of the Central Govt. Question No.3 : Whether in a Union Territory, the State Police and the CBI will have concurrent jurisdiction over employees of Central Govt. for PC Act offences? Answer No.3 : Yes, both the State UT Police and CBI have jurisdiction over Central Govt. employees under P.C. Act. Section 6(A) of DSPE Act is operative for CBI for officers of the level of JS and above. 50 Page 50 Question No.4 : What will be the position regarding employees of the Central Govt. in the Allied / Central Civil Services such as Indian Revenue Service, Postal Service etc. Who are working in the territory of the State but not posted in the State?

67. Can it be said that the classification is based on intelligible differentia when one set of bureaucrats of Joint Secretary level and above who are working with the Central Government are offered protection under Section 6-A while the same level of officers who are working in the States do not get protection though both classes of these officers are accused of an offence under PC Act, 1988 and inquiry / investigation into such allegations is to be carried out. Our answer is in the negative. The JUDGMENT provision in Section 6-A, thus, 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 6-A has propensity of shielding the corrupt. The object of Section 6-A, 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 51 Page 51 not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations. Thus, the object of Section 6-A itself is discriminatory. That being the position, the discrimination cannot be

1 68. The signature tune in Vineet Narain is , “However high you may be, the law is above you.” We reiterate the same. Section 6-A offends this signature tune and effectively Article 14. 69. Undoubtedly, every differentiation is not a discrimination but at the same time, differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. A simple physical grouping which separates one category from the other without any rational basis is not a sound or intelligible differentia. The separation or segregation must have a systematic relation and rational basis and the JUDGMENT object of such segregation must not be discriminatory. 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. 52 Page 52 70. 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-

a senior decision maker. 71. Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. 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. 72. It is argued on behalf of the Central Government that now office memorandum (dated 26.09.2011) approving the recommendations JUDGMENT made by the Group of Ministers has been issued which provides inter alia for quick consideration of the request by the CBI for approval and also to give reasons for granting / rejecting sanction under Section 6-A. It is submitted that delay in disposal of the requests by the CBI is now taken care of and if there is denial of sanction order under Section 6-A, such order of the Central Government can be challenged in a writ petition before the High Court. Such protection, it is submitted, is even recognized by United 53 Page 53 Nations in Article 30 of the UN Convention against corruption. This aspect 4 has been considered by this Court in Manohar Lal Sharma to which we shall refer appropriately a little later.

prevention of corruption and for the matters connected therewith. It is intended to make the corruption laws more effective by widening their coverage and by strengthening the provisions. It came to be enacted because Prevention of Corruption Act, 1947 as amended from time to time was inadequate to deal with the offences of corruption effectively. The new Act now seeks to provide for speedy trial of offences punishable under the Act in public interest as the legislature had become aware of corruption amongst the public servants. 74. Corruption corrodes the moral fabric of the society and JUDGMENT corruption by public servants not only leads to corrosion of the moral fabric of the society but also harmful to the national economy and national interest, as the persons occupying high posts in the Government by misusing their power due to corruption can cause considerable damage to 75 the national economy, national interest and image of the country . 75. The PC Act, 1988 has also widened the scope of the definition of the expression ‘public servant’ and incorporated offences under Sections 75 J. Jayalalitha v. Union of India & Anr.; [(1999) 5 SCC 138] 54 Page 54 161 to 165A of the Indian Penal Code (IPC). By Lokpal and Lokayuktas Act, 2013 (Act 1 of 2014), further amendments have been made therein. The penalties relating to the offences under Sections 7, 8, 9, 12, 13 and 14

than legal remuneration in respect of an official act as an offence and provides penalties for such offence. The expressions ‘gratification’ and ‘legal remuneration’ have been explained in clauses (b) and (c) of the Explanation appended to Section 7. Taking gratification by corrupt or illegal means to influence public servant is an offence under Section 8 while under Section 9, taking gratification for exercise of personal influence with a public servant is an offence. Section 10 provides for punishment for abetment by public servant of offences defined in Section 8 or 9. Section 11 provides for an offence where a public servant obtains valuable thing without consideration from person concerned in proceeding or business JUDGMENT transacted by such public servant. The punishment for abetment of offences defined in Section 7 or 11 is provided in Section 12. 75.2 Section 13 is a provision relating to criminal misconduct by a public servant. It reads as follows: “13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,- 55 Page 55 (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or (d) if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or JUDGMENT (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation .-For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less 56 Page 56 than four years but which may extend to ten years and shall also be liable to fine.” 75.3 Section 17 authorizes only certain level of police officers to

proper authorization from the competent court or competent authority as provided therein. 75.4 Section 19 mandates that no Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with the previous sanction as provided in that section. Section 19 does not permit any court to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the PC Act, 1988 without previous sanction from the competent authority where the offence has been committed by a public servant who is holding the office and by misusing or abusing the powers of the office, he has JUDGMENT committed the offence. Section 19, thus, provides to every public servant, irrespective of his position in service, protection from frivolous and malicious prosecution. 76. The menace of corruption has been noticed by this Court in 8 Ram Singh . The court has observed: “Corruption, at the initial stages, was considered confined to the bureaucracy which had the opportunities to deal with a variety of 57 Page 57

76 77. This Court in Shobha Suresh Jumani , took judicial notice of the fact that because of the mad race of becoming rich and acquiring properties overnight or because of the ostentatious or vulgar show of wealth by a few or because of change of environment in the society by adoption of materialistic approach, there is cancerous growth of corruption which has affected the moral standards of the people and all forms of governmental administration. 78. The PC Act, 1988 enacts the legislative policy to meet corruption cases with a very strong hand. All public servants are warned JUDGMENT through such a legislative measure that corrupt public servants have to 77 face very serious consequences. 78 79. The two-Judge Bench of this Court observed in Sanjiv Kumar that the case before them had brought to the fore the rampant corruption in the corridors of politics and bureaucracy. 76 Shobha Suresh Jumani v. Appellate Tribunal, forfeited Property and Anr; [(2001) 5 SCC 755] 77 State of A.P. v. V. Vasudeva Rao [(2004) 9 SCC 319] 78 Sanjiv Kumar v. State of Haryana and Ors. [(2005) 5 SCC 517] 58 Page 58 80. In a comparatively recent decision of this Court in 9 Subramanian Swamy , this court was concerned with the question whether a complaint can be filed by a citizen for prosecuting the public servant for

required to take appropriate decision within the time specified in Clause (I) (15) of the directions contained in paragraph 58 of the judgment of this 1 Court in Vineet Narain and the guidelines issued by the Central Government, Department of Personnel and Training and the Central Vigilance Commission. In the supplementing judgment, A.K. Ganguly, J. while concurring with the main judgment delivered by G.S. Singhvi, J. observed : “Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of the Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Preambular vision. Therefore, the duty of the court is that any anti- corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption……….” JUDGMENT Dealing with Section 19 of the PC Act, 1988 which bars a court from taking cognizance of the cases of corruption against a public servant under Sections 7, 10, 11, 13 and 15 of the PC Act, 1988, unless the Central or the State Government, as the case may be, has accorded sanction observed 59 Page 59 that this provision virtually imposes fetters on private citizens and also on prosecutors from approaching court against corrupt public servants. Public servants are treated as a special class of persons enjoying the said

malicious prosecution which is extended in public interest cannot become a shield to protect corrupt officials. 11 81. In Balakrishna Dattatrya Kumbhar , this Court observed that corruption was not only a punishable offence but also, “undermines human rights, indirectly violating them, and systematic corruption, is a human rights’ violation in itself, as it leads to systematic economic crimes”. 10 82. In R.A. Mehta , the two-Judge Bench of this Court made the following observations about corruption in the society: “Corruption in a society is required to be detected and eradicated at the earliest as it shakes “the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society”. Liberty cannot last long unless the State is able to eradicate corruption from public life. Corruption is a bigger threat than external threat to the civil society as it corrodes the vitals of our polity and society. Corruption is instrumental in not proper implementation and enforcement of policies adopted by the Government. Thus, it is not merely a fringe issue but a subject- matter of grave concern and requires to be decisively dealt wit h.” JUDGMENT 83. Now we turn to the recent decision of this Court in Manohar 4 Lal Sharma . A three-Judge Bench of this Court in that case leaving the 60 Page 60 question of constitutional validity of Section 6-A untouched and touching upon the question whether the approval of the Central Government is necessary under Section 6-A in a matter where the inquiry/investigation

into allegations of corruption observed that for successful working of the democracy it was essential that public revenues are not defrauded and public servants do not indulge in bribery and corruption and if they do, the allegations of corruption are to be inquired into fairly, properly and promptly and those who are guilty are brought to book. It was observed: “Abuse of public office for private gain has grown in scope and scale and hit the nation badly. Corruption reduces revenue; it slows down economic activity and holds back economic growth. The biggest loss that may occur to the nation due to corruption is loss of confidence in the democracy and weakening of the rule of law.” 83.1 Madan B. Lokur, J. in his supplementing judgment dealt with JUDGMENT th Office Memorandum dated 26 September, 2011. The relevant extract of the Office Memorandum has been quoted in paragraph 74 of the judgment, which reads: “The undersigned is directed to state that the provision of section 6-A of the DSPE Act, 1946 provides for safeguarding senior public officials against undue and vexatious harassment by the investigating agency. It had been observed that the requests being made by the investigating agency under the said provision were not being accorded due priority and the examination of such proposals at times lacked objectivity. The matter was under consideration of the Group of Ministers constituted to 61 Page 61 consider measures that can be taken by the Government to tackle Corruption.

(b). The competent authority will give a speaking order, giving reasons for its decision. (c) In the event a decision is taken to refuse permission, the reasons thereof shall be put up to the next higher authority for information within one week of taking the decision. (d) Since Section 6-A specifically covers officers of the Central Government, above the rank of Joint Secretary, the competent authority in these cases will be the Minister in charge in the Government of India. In such cases, intimation of refusal to grant permission along with reasons thereof, will have to be put up to the Prime Minister. The above decision of the Government is brought to the notice of all Ministries/Departments for due adherence and strict compliance.” JUDGMENT 83.2 The above office memorandum has not been found to be 4 efficacious in Manohar Lal Sharma as it does not effectively prevent possible misuse of law. There is no guarantee that the time schedule prescribed in the office memorandum shall be strictly followed. In any case, what can CBI do if the time schedule provided in the office memorandum is not maintained. Even otherwise, office memorandum is not of much help in adjudging the constitutional validity of Section 6-A. 62 Page 62 84. Learned amicus curiae highlighted that there was no requirement of previous approval as contained in the impugned provisions 1 between 18.12.1997 (the date of Vineet Narain judgment striking down the

Ordinance, 1998 was in force and till the deletions by the CVC Amendment Ordinance, 1998. It is not the stand of the Central Government before us nor any material is placed on record by it to suggest even remotely that during the period when the Single Directive was not in operation or until Section 6-A was brought on the statute book, CBI harassed any senior government officer or investigated frivolous and vexatious complaints. The high-pitched argument in justification of Section 6-A that senior government officers may be unduly and unnecessarily harassed on frivolous and vexatious complaints, therefore, does not hold water. 85. Criminal justice system mandates that any investigation into JUDGMENT 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 6-A fails in the context of these facets of Article 14. The argument of Mr. L. Nageswara 63 Page 63 Rao that rule of law is not above law and cannot be a ground for invalidating legislations overlooks the well settled position that rule of law is a facet of equality under Article 14 and breach of rule of law amounts to

14. 86. Section 156 of the Cr.P.C. enables any officer in charge of a police station to investigate a cognizable offence. Insofar as non- cognizable offence is concerned, a police officer by virtue of Section 155 of Cr.P.C. can investigate it after obtaining appropriate order from the Magistrate having power to try such case or commit the case for trial regardless of the status of the officer concerned. The scheme of Section 155 and Section 156 Cr.P.C. indicates that the local police may investigate a senior Government officer without previous approval of the Central Government. However, CBI cannot do so in view of Section 6-A. This JUDGMENT 79 anomaly in fact occurred in Centre for PIL . That was a matter in which investigations were conducted by the local police in respect of senior Government official without any previous approval and a challan filed in the court of Special Judge dealing with offences under the PC Act, 1988. 79 Dealing with such anomaly in Centre for PIL , Madan B. Lokur, J. in 4 Manohar Lal Sharma observed, “It is difficult to understand the logic 79 Centre for PIL and Anr. v. Union of India and Anr.; [(2011) 4 SCC 1] 64 Page 64 behind such a dichotomy unless it is assumed that frivolous and vexatious complaints are made only when the CBI is the investigating agency and that it is only CBI that is capable of harassing or victimizing a

harassing or victimizing a senior government official. No such assumption can be made.” The above clearly indicates that Section 6-A has brought an anomalous situation and the very object of the provision to give protection to certain officers (Joint Secretary and above) in the Central Government has been rendered discriminatory and violative of Article 14. 9 87. It is pertinent to notice that in Subramanian Swamy this Court noted that as per supplementary written submissions tendered by the learned Attorney General, 126 cases were awaiting sanction for prosecution from the Central Government for periods ranging from one year to few months. Moreover, in more than one-third of the cases of JUDGMENT requests for prosecution in corruption cases against public servants, sanctions have not been accorded. Whether an enactment providing for special procedure for a certain class of persons is or is not discriminatory and violative of Article 14 must be determined in its own context. A practical assessment of the operation of the law in particular circumstances is necessary and the court can take judicial notice of existing conditions 9 from time to time. The scenario noted in Subramanian Swamy and the 65 Page 65 5 facts in Telecom Watchdog - to illustrate the few – show that differentia in Section 6-A is directly destructive and runs counter to the object and reason of the PC Act, 1988. It also undermines the object of detecting and

52 strongly relied upon the observations made by this Court in P. Sirajuddin that if baseless allegations are made against senior Government officials, it would cause incalculable harm not only to the officer in particular but to the department that he belonged to, in general. He, particularly, referred 52 to the following observations in P. Sirajuddin (para 17, page 601 of the report): “………..Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general.” JUDGMENT 52 89. In our opinion, P. Sirajuddin also emphasizes equality before law. This decision, in our opinion, cannot be read as laying down the proposition that the distinction can be made for the purposes of inquiry / investigation of an offence of which public servants are accused based on their status. 66 Page 66 4 90. It is pertinent to notice that in Manohar Lal Sharma , the learned Attorney General made a concession to the effect that in the event of CBI conducting an inquiry, as opposed to an investigation into the

connotation that an investigation has. To that extent, Section 6-A, as it is, does not survive. Insofar as investigation is concerned, an investigation into a crime may have some adverse impact but where there are allegations of an offence under the PC Act, 1988 against a public servant, whether high or low, whether decision-maker or not, an independent investigation into such allegations is of utmost importance and unearthing the truth is the goal. The aim and object of investigation is ultimately to search for truth and any law that impedes that object may not stand the test of Article 14. 91. In the referral order, the contention of learned Solicitor General JUDGMENT has been noted with regard to inconsistency in the two judgments of this 1 25 Court in Vineet Narain and K. Veeraswami . 25 92. In K. Veeraswami , this Court in para 28 (pages 693-694 of the report) observed: “28. … Section 6 is primarily concerned to see that prosecution for the specified offences shall not commence without the sanction of a competent authority. That does not mean that the Act was intended to condone the offence of bribery and corruption by public 67 Page 67

1 25 93. In Vineet Narain , the above observations in K. Veeraswami have been considered in paras 34 and 35 of the report (pages 259-260) JUDGMENT and the three-Judge Bench held that the position of Judges of High Courts and the Supreme Court, who are constitutional functionaries, is distinct, and the independence of judiciary, keeping it free from any extraneous influence, including that from executive, is the rationale of the decision in K. 25 Veeraswami . The Court went on to say: “…. In strict terms the Prevention of Corruption Act, 1946 could not be applied to the superior Judges and, therefore, while bringing those Judges within the purview of the Act yet 68 Page 68 maintaining the independence of judiciary, this guideline was issued as a direction by the Court. The feature of independence of judiciary has no application to the officers covered by the Single Directive. The need for

25 94. The observations in K. Veeraswami , as noted above, were found to be confined to the Judges of the High Courts and the Supreme Court, who are constitutional functionaries, and their position being distinct and different from the Government officers. In our opinion, the Constitution 25 Bench decision in K. Veeraswami has no application to the senior public servants specified in Section 6-A. We have, therefore, no hesitation in 1 holding that the conclusion reached in para 34 in Vineet Narain , in no manner, can be said to be inconsistent with the findings recorded in para 25 28 of K. Veeraswami . JUDGMENT 95. Various provisions under different statutes were referred to by Mr. L. Nageswara Rao where permission of the government is required before taking cognizance or for institution of an offence. Section 197 of Cr.P.C. was also referred to, which provides for protection to Judges and public servants from prosecution except with the previous sanction by the competent authority. It may be immediately stated that there is no similarity between the impugned provision in Section 6-A of the DSPE Act and 69 Page 69 Section 197 of Cr.P.C. Moreover, where challenge is laid to the constitutionality of a legislation on the bedrock or touchstone of classification, it has to be determined in each case by applying well-settled

by the legislation. Each case has to be examined independently in the context of Article 14 and not by applying any general rule. 96. A feeble attempt was made by Mr. K.V. Viswanathan, learned Additional Solicitor General that Section 6-A must at least be saved for the purposes of Section 13(1)(d)(ii) and (iii) of the PC Act, 1988. In our opinion, Section 6-A does not satisfy the well-settled tests in the context of Article 14 and is not capable of severance for the purposes of Section 13(1)(d)(ii) and (iii). JUDGMENT 97. Having considered the impugned provision contained in Section 6-A and for the reasons indicated above, we do not think that it is necessary to consider the other objections challenging the impugned provision in the context of Article 14. 98. In view of our foregoing discussion, we hold that Section 6- A(1), which requires approval of the Central Government to conduct any 70 Page 70 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)

and local authorities owned or controlled by the Government, is invalid and violative of Article 14 of the Constitution. As a necessary corollary, the provision contained in Section 26 (c) of the Act 45 of 2003 to that extent is also declared invalid. 99. Writ petitions are allowed as above. .…...………..……………………...CJI. (R.M. Lodha) .…...………..……………………...J. (A.K. Patnaik) JUDGMENT .…...………..……………………...J. (Sudhansu Jyoti Mukhopadhaya) .…...………..……………………...J. (Dipak Misra) .…...………..……………………...J. (Fakkir Mohamed Ibrahim Kalifulla) NEW DELHI MAY 06, 2014. 71 Page 71