The Supreme Court Tuesday quashed section 6A of the Delhi Special Police Establishment Act that mandates the CBI to take prior sanction of the government before investigating an officer of the rank of joint secretary and above in corruption cases.
The constitution bench of Chief Justice R.M. Lodha, Justice A.K. Patnaik, Justice Sudhansu Jyoti Mukhopadhaya, Justice Dipak Misra and Justice Fakkir Mohamed Ibrahim Kalifulla said that a shield to the officers of joint secretary level and above under section 6A based was not permissible as it violates article 14 (Equality before law) of the constitution.
"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," the court said in its judgment.
"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 officers for the purpose of inquiry/investigation into an offence under the PC (Prevention of Corruption) Act, 1988," Chief Justice Lodha said speaking for the bench.
"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," the court said adding that such a distinction violates article 14.
"The corrupt public servants, whether high or low, are birds of the same feather and must be confronted with the process of investigation and inquiry equally," the court said.
"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," the court said, adding that 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".
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It further said that "where there are allegations against a public servant which amount to an offence under the PC Act, 1988, no factor pertaining to 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," the court said pointing to its constitutional infirmity.
Moreover, the court said, that "the result of the impugned legislation is that the very group of persons, namely, high-ranking bureaucrats whose misdeeds and illegalities may have to be inquired into, would decide whether the CBI should even start an inquiry or investigation against them or not".
"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," the court said.
Reading down section 6A of DSPE Act, the court said: "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, the court said, "it advances public mischief and protects the crime-doer. The provision thwarts an independent, unhampered, unbiased, efficient and fearless inquiry/investigation to track down the corrupt public servants," answering in negative whether the classification is based on intelligible differentia.