SC Constitution Bench quashes Section 6A of Delhi Special Police Establishment Act

A Constitutional Bench of the Supreme Court has quashed Section 6A of the Delhi Special Police Establishment Act, 1946. This section was inserted with effect from 12^th of September, 2003 and provided for obtaining previous approval of the Central Government to initiate any enquiry or investigation for an offence alleged to have been committed under the Prevention of Corruption Act, 1988. It provided a cover to officers of the level of Secretary and above in order to protect the efficiency and efficacy of these institutions.

The provision has now been struck down by a five-judge Constitution Bench comprising Justices R.M. Lodha, A.K. Patnaik, S.K. Mukhopadhaya, Dipak Misra and Ibrahim Kalifulla, negating the need for prior permission to initiate investigation against the top bosses.

Delivering the judgment, Chief Justice Lodha wrote that, “This provision on the face of it is not valid. It grants absolute protection to corrupt officers from prosecution. They don’t need a shield like this merely because they are likely to be harassed.”

The Bench pointed to the discrimination that was caused between Central Government Officers working at the level of Joint Secretary and above and the same level officers working in the States. The Court said that corrupt persons ought to be treated equally under the Prevention of Corruption Act and warned of serious consequences if any inquiry is hampered now.

Before the insertion of this section, the prerequisite to get such prior approval was a part of a directive known as ‘Single Directive’ issued by the Government. This Directive was a set of instructions issued to CBI concerning intricacies of commencing an inquiry or registering a case against certain classes of civil servants. This Directive was said to be issued to protect decision making level officers from the threat and ignominy of malicious and vexatious inquiries/ investigations and to give protection to officers at the decision making level and to relieve them of the anxiety from the likelihood of harassment for taking honest decisions.

This Single Directive as quashed by the Apex Court in the case of Vineet Narain and Ors. v. Union of India and Anr. in 1997. Within a few months after this judgment, Section 6A was sought to be inserted by the Central Vigilance Commission Ordinance, 1998, which provided for previous approval of the Central Vigilance Commission before initiating investigation of the officers of the level of Joint Secretary and above. This provision was deleted by proliferation of another Ordinance after the interference of the Court. Later, section 6A was again inserted with effect from 12^th of September, 2003.

The matter first came into question before the Supreme Court in the case of Dr. Subramanian Swamy v Director, CBI And Ors., [2005] CriLJ 1413, challenging it on the touchstone of Article 14 of the Constitution of India. The Amicus Curiae had contended that the provision strikes at the core of the rule of law as it hampers the principle of independent, unhampered, unbiased and efficient investigation. The nexus between the criminal-bureaucrat-politician was highlighted and contended that the whole polity would be involved in the grant or refusal of permission for the investigation.

The Senior Counsel submitted that in the light of the growing corruption, a provision like section 6A, which protects highly placed public servants, is wholly arbitrary and unreasonable and is liable to be struck down under Article 14. It was emphasized by the petitioners that absence of arbitrary power is the first essential element of the rule of law, which forms the base for our constitutional system.

The Solicitor General of India, while arguing for the respondents, agreed with the claims of growing corruption and the nexus between politicians and various sections of the bureaucracy. However, according to him, legislation couldn’t be struck down merely on the basis of arbitrariness or unreasonableness. Such grounds are available only for executive actions and orders.

The major question that came up was hence, whether legislation may be invalidated on grounds of arbitrariness and unreasonableness, these two elements being essential elements of Article 14 of the Indian Constitution.

The matter was then understood to be heard by this larger Constitutional Bench, subject to the order of Hon’ble Chief Justice of India.

This comes as a welcome judgment in wake of the increased instances of corruption prevailing in the higher strata. The judgment will facilitate efficient and unbiased investigation against any public official without any bias as to the class he belongs to, ensuring an unhindered motion of the wheels of justice.

Reacting to the Judgment, Advocate Prashant Bhushan said "The Supreme Court's constitution bench has today in a historic judgement struck down the single directive which had been introduced in 2003 in the CBI Act and the CVC Act by which the CBI was required to take the permission of the Government for even investigating officers of the level of joint secretary and above. This absolutely a dishonest provision had been introduced by the government after the hawala judgement, when the Supreme Court had held that this same single directive, which had by then been introduced by way of an administrative order that this was unconstitutional,"

Read the Judgment here