SC gives CBI free hand to go ahead with probe against Jt-secy level officers in graft cases
The CBI will henceforth not have to seek the prior permission of the Government to enquire or investigate corruption charges against a Joint Secretary and officers above that level. In a far-reaching judgement, a Supreme Court Constitution Bench on Tuesday scrapped Section 6A under the Delhi Special Police Establishment (DSPE) Act and Section 26(c) of Central Vigilance Commission (CVC) Act that gave the Centre powers to stall investigations against top bureaucrats in the Government accused in corruption cases.
Treating corrupt public servants as a single class, the Bench of CJI RM lodha, Justices AK Patnaik, SJ Mukhopadhaya, Dipak Misra, and FM Ibrahim Kalifulla said: “Irrespective of their status or position, corrupt public servants are corrupters of public power….whether high or low, they are birds of the same feather and must be confronted with the process of investigation and enquiry equally.”
Dealing with the challenge against Section 6A raised by BJP leader Subramanian Swamy and NGO Centre for Public Interest litigation, the Bench said: “The protection in Section 6A has propensity of shielding the corrupt.”
The Supreme Court (SC) even agreed with the submissions of the petitioners that such a classification violated Article 14 (right to equality) by creating two sets of public servants — one who are decision-making officers and another set who are not.
Setting aside the provisions on ground of unconstitutionality, the SC held: “No distinction can be made for a certain class of officers specified in Section 6A (Joint Secretary and above) who are described as decision-making officers for the purpose of enquiry/investigation into an offence under the Prevention of Corruption Act 1988.”
This is the second time around that the SC has struck down the “single directive” order of the Government shielding its top bureaucrats from CBI enquiry. In the Vineet Narain case, decided by the apex court on December 18, 1997, a similar provision contained in an executive order was struck down as unconstitutional. The only difference this time around was that the protection was made part of the Act.
The Bench held that the provision “thwarts an independent, unhampered, unbiased, efficient, and fearless enquiry to track down corrupt public servants”.However, the mandatory need for the CBI to seek permission from the Government to charge sheet (prosecute) an officer still remains.
The SC also considered the issue from the standpoint of CBI’s independence in conducting a fearless and fair investigation. Writing the judgement for the Bench, CJI lodha said: “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 enquired into, would decide whether the CBI should even start an enquiry or investigation against them or not.” This would ensure, “there will be no confidentiality and insulation of the investigating agency from political and bureaucratic control and influence.”
The Government, in defence of the said provision informed the court that the process of granting sanction had been expedited but such a filter was necessary to protect officers from frivolous action. The court felt that enquiry was the job of police and CBI and unless this was permitted, no evidence could be gathered. Moreover, there was a check under Section 197 of Criminal Procedure Code (CrPC) requiring the CBI to seek sanction before charge sheeting the officer.
The SC noted that the Centre had not accorded sanction for prosecution of public servants “in more than one-third of cases of request for prosecution” by the CBI. This further strengthened the suspicion of the SC that Section 6A was meant to act as a “fetter” to prevent CBI from holding a preliminary probe and gathering crucial evidence against corrupt bureaucrats.