The Supreme Court Thursday reserved verdict on the validity of a legal provision that mandates the CBI to seek the government's prior sanction before proceeding against an officer of the rank of joint secretary or above on charges of corruption.
However, the six-bench constitution bench said that if it had to invalidate section 6A of the Delhi Special Police Establishment Act merely on the grounds of its being arbitrary, then the measure would be referred to a still larger constitution bench of seven judges as there were conflicting judgments on this count.
The constitution bench of Justice R.M. Lodha, Justice A.K. Patnaik, Justice Sudhansu Jyoti Mukhopadhaya, Justice Dipak Misra and Justice Fakkir Mohamed Ibrahim Kalifulla was hearing a 2005 reference by a three judge bench on the validity of section 6A.
Making the reference to the constitution bench, the court in 2005 had said: "In short, the moot question is whether arbitrariness and unreasonableness or manifest arbitrariness and unreasonableness, being facets of article 14 of the Constitution of India are available or not as grounds to invalidate a legislation".
Reference to the larger bench was made on a petition by politician Subramanian Swamy.
The government has resisted the plea seeking to invalidate the section, contending that it needed to protect its senior ranking officers who were involved in crucial decision-making process and they could not be exposed to undue harassment and exercise of police powers by the CBI.
Holding that section 6A, far from frustrating the rule of law in fact furthers the rule of law, the central government has contended that the legislative provision can't be negated by the courts on the grounds of arbitrariness or unreasonableness unless it violated any of the fundamental rights.
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Seeking to demolish the government's position, counsel Prashant Bhushan asked the court how could the government decide whether the sanction could be given or not when it is itself or its subordinate officers are under cloud.
He wondered why a private citizen could not lodge a complaint against a government officer under the Prevention of Corruption Act as it violated the citizen's rights and principles under article 21.
"Whether approval by the Lokpal and CVC (Central Vigilance Commission) would be sufficient in this matter," the court inquired as Bhushan said why the government should decide and not the CVC or the Lokpal.