83.2 The above office memorandum has not been found to be efficacious in Manohar Lal Sharma4 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.
84.Learned amicus curiae highlighted that there was no requirement of previous approval as contained in the impugned provisions between 18.12.1997 (the date of Vineet Narain1 judgment striking down the Single Directive) and 11.9.2003 (when Act 45 of 2003 came into force) except the period between 25.8.1998 and 27.10.1998 when the CVC 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 the crime should be fair, in accordance with law and should not be tainted. JUDGMENT 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 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 breach of equality under Article 14 and, therefore, breach of rule of law may be a ground for invalidating the legislation being in negation of Article 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,JUDGMENTCBI cannot do so in view of Section 6-A. Thisanomaly in fact occurred in Centre for PIL79. 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. Dealing with such anomaly in Centre for PIL79, Madan B. Lokur, J. in Manohar Lal Sharma4 observed, “It is difficult to understand the logic 79 Centre for PIL and Anr. v. Union of India and Anr.; [(2011) 4 SCC 1] 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 senior Government official while the local police of the State Government does not entertain frivolous and vexatious complaints and is not capable of 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.
87.It is pertinent to notice that in Subramanian Swamy9 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,JUDGMENTin more than one-third of the cases ofrequests 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 from time to time. The scenario noted in Subramanian Swamy9 and the facts in Telecom Watchdog5 - 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 punishing high level corruption.
88.Mr. K.V. Viswanathan, learned Additional Solicitor General has strongly relied upon the observations made by this Court in P. Sirajuddin52 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 to the following observations in P. Sirajuddin52 (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.”
89.In our opinion, P. Sirajuddin52 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.
90.It is pertinent to notice that in Manohar Lal Sharma4, 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 conduct of a senior government officer, no previous approval of the Central Government is required since the inquiry does not have the same adverse 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 Generalhas been noted with regard to inconsistency in the two judgments of this Court in Vineet Narain1 and K. Veeraswami25.
92.In K. Veeraswami25, 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 servant. Nor it was meant to afford protection to public servant from criminal prosecution for such offences. It is only to protect the honest public servants from frivolous and vexatious prosecution. The competent authority has to examine independently and impartially the material on record to form his own opinion whether the offence alleged is frivolous or vexatious. The competent authority may refuse sanction for prosecution if the offence alleged has no material to support or it is frivolous or intended to harass the honest officer. But he cannot refuse to grant sanction if the material collected has made out the commission of the offence alleged against the public servant. Indeed he is duty-bound to grant sanction if the material collected lend credence to the offence complained of. There seems to be another reason for taking away the discretion of the investigating agency to prosecute or not to prosecute a public servant. When a public servant is prosecuted for an offence which challenges his honesty and integrity, the issue in such a case is not only between the prosecutor and the offender, but the State is also vitally concerned with it as it affects the morale of public servants and also the administrative interest of the State. The discretion to prosecute public servant is taken away from the prosecuting agency and is vested in the authority which is competent to remove the public servant. The authority competent to remove the public servant would be in a better position than the prosecuting agency to assess the material collected in a dispassionate and reasonable manner and determine whether sanction for prosecution of a public servant deserves to be granted or not.”
93.In Vineet Narain1, the above observations in K. Veeraswami25 have been considered JUDGMENTin paras 34 and 35 of the report (pages 259-260) 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. Veeraswami25. 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 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 independence of judiciary from the executive influence does not arise in the case of officers belonging to the executive…..”
94.The observations in K. Veeraswami25, 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 Bench decision in K. Veeraswami25 has no application to the senior public servants specified in Section 6-A. We have, therefore, no hesitation in holding that the conclusion reached in para 34 in Vineet Narain1, in no manner, can be said to be inconsistent with the findings recorded in para 28 of K. Veeraswami25. 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 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 two tests: (i) that classification is founded on intelligible differentia and (ii) that differentia has a rational relation with the object sought to be achieved 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). 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 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) such officers as are appointed by the Central Government in corporations established by or under any Central Act, government companies, societies 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. (R.M. Lodha) (A.K. Patnaik) (Sudhansu Jyoti Mukhopadhaya) (Dipak Misra) (Fakkir Mohamed Ibrahim Kalifulla) NEW DELHI MAY 06, 2014.