Supreme Court of India
DR. SUBRAMANIAN SWAMYversusDIRECTOR, CENTERAL BUREAU OF INVESTIGATION & ANR.
- Citation
- 2014 INSC 358
- Decided
- 6 May 2014
- Disposal
- Case Allowed
- Bench
- RAJENDRA MAL LODHA
Holding
Section 6‑A of the Delhi Special Police Establishment Act and the corresponding Section 26(c) of the Central Vigilance Commission Act are invalid as they violate Article 14 of the Constitution.
Summary
The Supreme Court examined the constitutional validity of Section 6‑A of the Delhi Special Police Establishment Act, 1946 (inserted by Section 26(c) of the Central Vigilance Commission Act, 2003), which required prior approval of the Central Government before the CBI could inquire into or investigate alleged offences under the Prevention of Corruption Act, 1988 against senior Central Government officers of Joint Secretary rank and above. The Court held that the classification based solely on the officers' status was arbitrary, lacked intelligible differentia, and defeated the purpose of the PC Act, thereby violating Article 14 of the Constitution. It further observed that the provision insulated corrupt senior bureaucrats from independent investigation, undermined the rule of law, and had no rational nexus to the legislative objective. Consequently, Section 6‑A and the corresponding provision in the Central Vigilance Commission Act were declared unconstitutional. The writ petitions were allowed, striking down the impugned provisions.
Issues considered
- The constitutionality of Section 6‑A of the DSPE Act and Section 26(c) of the Central Vigilance Commission Act under Article 14.
- Whether the classification of senior officers for protection from CBI investigation is a valid reasonable classification.
- Whether the provision amounts to excessive delegation of power to the executive.
- Whether the provision defeats the object of the Prevention of Corruption Act, 1988.
Legislation cited
Subjects
Article 14Equality before lawClassificationPrevention of Corruption ActCBICentral Government approvalRule of lawDiscriminationStatutory validityPreliminary inquiry
Judgment
[2014] 6 S.C.R. 873
DR. SUBRAMANIAN SWAMY A
v.
DIRECTOR, CENTERAL BUREAU OF INVESTIGATION &
ANR.
(Writ Petition (Civil) No. 38 of 1997)
MAY 06, 2014.
B
[R.M. LODHA CJI, A.K. PATNAIK, SUDHANSU JYOTI
MUKHOPADHAYA, DIPAK MISRA AND FAKKIR
MOHAMED IBRAHIM KALIFULLA, JJ.]
c
DELHI SPECIAL POLICE ESTABLISHMENT ACT,
1946:
s. 6-A - Constitutional validity of - Requirement of
approval of the Central Government to conduct inquiry or
investigation where the allegations of commission of an D
offence under the PC Act, 1988 relate to the employees of
the Central Government of the level of Joint Secretary and
above - Held: Classification which is made in s. 6-A on the
basis of status in the Government service is not permissible
under Article 14 as it defeats the purpose of finding prima E
facie truth into the allegations of graft, which amount to an
offence under the PC Act, 1988 - There cannot be sound
differentiation between corrupt public servants based on their
status because irrespective of their status or position, corrupt
public servants are corrupters of public power - The F
classification made in s. 6-A neither eliminates public mischief
nor achieves some positive public good, rather it advances
public mischief and protects the crime-doer - There is no
rational basis to classify the two sets of public servants
differently on the ground that one set of officers is decision G
making officers and not the other set of officers - If there is
an accusation of bribery, graft, illegal gratification or criminal
misconduct against a public servant, then the status of
offender is of no relevance - The result of the impugned
873 H
874 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 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 c'onfidentiality and insulation of the
B 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 - As a necessary corollary, the
provision contained in s.26 (c) of the Act 45 of 2003 to that
c extent is also declared invalid - Prevention of Corruption Act,
1988 - Constitution of India, 1950 - Article 14 - Central
Vigilance Commission Act, 2003 - s.26(c).
s. 6A - Protection to a class of the Government officers
of the level of Joint Secretary and above - Reasonableness
D of classification - Held: The classification is not based on
intelligible differentia when one set of bureaucrats of Joint
Secretary level and above who are working with the Central
Government are offered protection u/s. 6-A while the same
level of officers who are working in the States do not get
E protection though both classes of these officers are accused
of an offence under PC Act, 1988 and inquiry/investigation
into such a/legations is to be carried out - The provision in
s. 6-A, thus, impedes tracking down the corrupt senior
bureaucrats as without previous approval of the Central
F Government, the CBI cannot even hold preliminary inquiry
much less an investigation into the a/legations - The
protection in s. 6-A has propensity of shielding the corrupt -
The object of s. 6-A, that senior public servants of the level of
Joint Secretary and above who take policy decision must not
G be put to any harassment, side-tracks the fundamental
objective of the PC Act, 1988 to deal with corruption and act
against senior public servants - Thus, the object of s. 6-A itself
is discriminatory.
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 875
ORS.
CONSTITUTION OF IND/A, 1950: A
Article 14 - Challenge to the constitutional validity of a law
enacted by the legislature - Held: Court to keep in view that
there is always a presumption of constitutionality of an
enactment, and a clear tran,sgression of constitutional B
principles must be shown - The two dimensions of Article 14
in its application to legislation and rendering legislation invalid
are discrimination, based on an impermissible or invalid
classification and excessive delegation of powers; conferment
of uncanalised and unguided powers on the executive,
whether in the form of delegated legislation or by way of C
conferment of authority to pass administrative orders - If such
conferment is without any guidance, control or checks, it is
violative of Article 14 of the Constitution - The Court also
needs to be mindful that a legislation does not become
unconstitutional merely because there is another view or D
because another method may be considered to be as good
or even more effective, like any issue of social, or even
economic policy - It is well settled that the courts do not
substitute their views on what the policy is - Legislation.
Article 14 - Reasonable classification - The Constitution E
permits the State to determine, by the process of classification,
what should be regarded as a class for purposes of legislation
and in relation to law enacted on a particulf1r subject - There
is bound to be some degree of inequality when there is
segregation of one class from the other - However, such F
segregation must be rational and not artificial or evasive - In
other words, the classification must not only be based on
some qualities or characteristics, which are to be found in all
persons grouped together and not in others who are left out
but those qualities or characteristics must have a reasonable G
relation to the object of the legislation - Differentia which is the
basis of classification must be sound and must have
reasonable relation to the object of the legislation - If the object
itself is discriminatory, then explanation that classification is
H
876 SUPREME COURT REPORTS [2014] 6 S.C.R.
A reasonable having rational relation to the object sought to be
achieved is immaterial.
PREVENTION OF CORRUPTION ACT, 1988:
Object of - Held: PC Act, 1988 is a special statute and
8 its preamble shows that it has been enacted to consolidate
and amend the law relating to the prevention of corruption and
for the matters connected therewith - It is intended to make
the corruption laws more effective by widening their coverage
and by strengthening the provisions - It came to be enacted
C because Prevention of Corruption Act, 19 as amended from
time to time was inadequate to deal with the offences of
corruption effectively - The new Act now seeks to provide for
speedy trial of offences punishable under the Act in public
interest as the legislature had become aware of corruption ·
amongst the public servants - Corruption corrodes the moral
D fabric of the society and corruption by public servants not only
leads to corrosion of the moral fabric of the society but also
harmful to the national economy and national interest, as the
persons occupying high posts in the Government by misusing
their power due to corruption can cause considerable damage
E to the national economy, national interest and image of the
country.
CENTRAL VIGILANCE COMMISSION ACT, 2003:
Object of - Discussed.
F INVEST/GA TION:
Criminal justice system mandates that any investigation
into the crime should be fair, in accordance with law and
should not be tainted - It is equally important that interested
or influential persons are not able to misdirect or highjack the
G 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 amounts
to negation of equality under Article 14 - The argument that
rule of law is not above law and cannot be a ground for
H invalidating legislations overlooks the well settled position that
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 877
ORS.
rule of law is a facet of equality under Article 14 and breach A
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 -
Constitution of India, 1950 - Article 14.
B
Section 6-A of the Delhi Special Police Establishment
Act, 1946 (DSPE Act) requires the approval of the Central
Government to conduct inquiry or investigation where the
allegations of commission of an offence under the PC Act,
1988 relate to the employees of the Central Government C
of the level of Joint Secretary and above.
In the instant writ petitions, the constitutional validity
of Section 6-A was challenged. The questions which has
arisen for consideration in the instant appeal were: Can
classification be made creating a class of the government D
officers of the level of Joint Secretary and above level and
certain officials in public sector undertakings for the
purpose of inquiry/investigation into an offence alleged
to have been committed under the PC Act, 1988; can the
Legislature lay down different principles for investigation/ E
inquiry into the allegations of corruption for the public
servants who hold a particular position and is such
classification founded on sound differentia.
Since Section 6-A came to be inserted by Section F
26(c) of the Central Vigilance Commission Act, 2003 (Act
45 of 2003), the constitutional validity of Section 26(c) was
also raised.
Allowing the writ petitions, the Court
G
HELD: 1. Central Vigilance Commission Act, 2003
provides for the constitution of a Central Vigilance
Commission to inquire or cause inquiries to be conducted
into offences alleged to have been committed under the
Prevention of Corruption Act, 1988 by certain categories H
878 SUPREME COURT REPORTS [2014] 6 S.C.R.
A of public servants of the Central Government,
corporations established by or under any Central Act,
government companies, societies and local authorities
owned or controlled by the Central Government and for
matters connected therewith or incidental thereto.
B Section 26 of the Act 45 of 2003 provides for amendment
of DSPE Act and clause (c) thereof enacts that after
Section 6, Sec-tion 6-A shall be inserted in the DSPE Act.
[Para 7] [904-F-H; 905-A]
c I. R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1: 2007
(1) SCR 706; State of Madras v. V.G. Row 1952 SCR 597;
Subramanian Swamy v. Manmohan Singh and Anr. (2012)
3 SCC 64: 2012 (3) SCR 52; State of Gujarat and Anr. v.
J.ustice R.A. Mehta(Retd.) and Ors. (2013) 3 SCC 1: 2013 (1)
SCR 1; State of Maharashtra v. Balakrishna Dattatrya,
0
Kumbhar (2012) 12 SCC 384: 2012 (9) SCR 601; Krishna
Mohan (P) Ltd. v. Municipal Corporation of Delhi and Ors.
(2003) 7 SCC 151: 2003 (1) Suppl. SCR 848; District
Registrar and Collector, Hyderabad and Anr. v. Canara Bank
E and Ors. (2005) 1 sec 496: 2004 (5) Suppl. SCR 833 -
referred to.
2. Principles applicable to Article 14. The first part of
Article 14, which was adopted from the Irish Constitution,
is a declaration of equality of the civil rights of all persons
F within the territories of India. It enshrines a basic principle
of republicanism. The second part, which is a corollary
of the first and is based on the last clause of the first
section of the Fourteenth Amendment of the American-
Constituti on, enjoins that equal protection shall be
G secured to all such persons in the enjoyment of their
rights and liberties without discrimination of favouritism.
It is a pledge of the protection of equal laws, that is, laws
that operate alike on all persons under like
circumstances. [Para 38] [919-C, E-F]
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 879
ORS.
Chiranjit Lal Chowdhuri v. Union of India & Ors. (1950) A
SCR 869; State of Bombay & Anr. v. F. N. Balsara (1951)
SCR 682; State of West Bengal v. Anwar Ali Sarkar (1952)
SCR 284; Kathi Raning Rawat v. State of Saurashtra 1952
SCR 435; Lachmandas Kewalram Ahuja v. State of Bombay
1952 SCR 710; Syed Qasim Razvi v. State of Hyderabad & B
Ors. (1953) 4 SCR 589; Habeeb Mohamed v. State of
Hyderabad 1953 SCR 661; Kedar Nath Bajoria v. State of
West Bengal (1954) SCR 30; V.M. Syed Mohammad &
Company v. State of Andhra Pradesh (1954) SCR 1117;
Budhan Chaudhry & Ors. v. State of Bihar (1955) 1 SCR c
1045; Ram Krishna Dalmia v. Justice S.R. Tendolkar & Ors.
1959 SCR 279; Nagpur Improvement Trust and Anr. v. Vithal
Rao and Ors. (1973) 1 SCC 500: 1973 (3) SCR 39; Special
Courts Bill, 1978, In re, (1979) 1 SCC 380: 1998 (2) Suppl.
SCR 651; C.I. Emden v. State of U.P. (1960) 2 SCR 592;
Kangsari Haldar & Anr. v. State of West Bengal (1960) 2 SCR D
646; Jyoti Pershad v. Administrator for the Union Territory of
Delhi & Ors. (1962) 2 SCR 125; State of Gujarat & Anr. v.
Shri Ambica Mills Ltd., Ahmedabad & Anr. (1974) 3 SCR
760; Air India v. Nergesh Meerza and Ors. (1981) 4 SCC
335: 1982 (1) SCR 438; A. S. Krishna v. State of Madras E
1957 S.C.R. 399; D.S. Nakara and Ors. v. Union of India
(1983) 1SCC 305; E.P. Royappa v. State of T.N. and Anr.
(1974) 4 sec 3: 1974 (2) SCR 348 - relied on.
3. Court's approach Where there is challenge to the F
constitutional validity of a law enacted by the legislature,
the Court must keep in view that there is always a
presumption of constitutionality of an enactment, and a
clear transgression of constitutional principles must be
shown. The fundamental nature and importance of the G
legislative process needs to be recognized by the Court
and due regard and deference must be accorded to the
legislative process. Where the legislation is sought to be
challenged as being unconstitutional and violative of
Article 14 of the Constitution, the Court must remind itself H
880 SUPREME COURT REPORTS [2014] 6 S.C.R.
A to the principles relating to the applicability of Article 14
in relation to invalidation of legislation.The two
dimensions of Article 14 in its application to legislation
and rendering legislation invalid are now well recognized
and these are (i) discrimination, based on an
B impermissible or invalid classification and (ii) excessive
delegation of powers; conferment of uncanalised and
unguided powers on the executive, whether in the form
of delegated legislation or by way of conferment of
authority to pass administrative orders - if such
c conferment is without any guidance, control or checks,
it is violative of Article 14 of the Constitution. The Court
also needs to be mindful that a legislation does not
become unconstitutional merely because there is another
view or because another method may be considered to
0 be as good or even more effective, like any issue of social,
or even economic policy. It is well settled that the courts
do not !lubstitute their views on what the policy is. [Para
48] [930-A-F]
State of Karnataka v. Union of India and Anr. (1977) 4
E SCC 608: 1978 (2) SCR 1; State of Kera/a and Ors. v.
Travancore Chemicals and Manufacturing Co. and Anr.
(1998) 8 SCC 188: 1998 (2) Suppl. SCR 651; L. Chandra
Kumar v. Union of India and Ors. (1997) 3 SCC 261: 1997
(21 SCR 1186; Ku/dip Nayar and Ors. v. Union of India and
F Ors. (2006) 7 SCC 1: 2006 (5) Suppl. SCR 1; Union of India
v. R. Gandhi, President, Madras Bar Association (2010) 11
SCC 1: 2010 (6) SCR 857; K. T. Plantation (P} Ltd. & Anr. v.
State of Karnataka (2011) 9 SCC 1: 2011 (13) SCR 636; G. C.
Kanungo v. State of Orissa (1995) 5 SCC 96: 1995 (1) Suppl.
G SCR 51 O; Indra Sawhney (2) v. Union of India and Ors. (2000)
1 SCC 168: 1999 (5) Suppl. SCR 229; Maneka Gandhi v.
Union of India and Anr. (1978) 1 SCC 248: 1978 (2) SCR
621; Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors.
(1981) 1 SCC 722: 1981(2)SCR 79; Malpe Vishwanath.
H Acharya and Ors. v. State of Maharashtra and Anr. (1998) 2
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 881
ORS.
SCC 1:-1997 (6) Suppl. SCR 717; Mardia Chemicals Ltd. A
and Ors. v. Union of India and Ors. (2004) 4 sec 311: 2004
(3) SCR 982; His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 225:
1973 (0) Suppl. SCR 1; Ashoka Kumar Thakur v. Union of
India and Ors. (2008) 6 SCC 1: 2008 (6) SCC 1; Natural B
Resources A/location, In re, Special Reference No. 1 of 2012
(2012) 10 SCC 1: 2012 (9) SCR 311; State of A.P. and Ors.
v. McDowell & Co. and Ors. (1996) 3 SCC 709: 1996 (3) SCR
721; State of M.P. v. Rakesh Kohli and Anr. (20,12) 6 SCC
312: 2012 (6) SCR 661; Indira Nehru Gandhi v. Raj Narain C
1975 (Suppl.) SCC 1 : 1976 SCR 347; Matajog Dobey v. H.
C. Bhari (1955) 2 SCR 925; Naga People's Movement of
Human Rights v. Union of India (1998) 2 SCC 109: 1997 (5)
Suppl. SCR 469; Manhar Lal Bhogilal Shah v. State of
Maharashtra (1971) 2 SCC 119: 1971 (0) Suppl. SCR 359; D
Union of India & Ors. v. No.664950 JM Havildarl Clerk SC
Bagari (1999) 3 SCC 709: 1999 (2) SCR 690; N.B.Khare
(Dr.) v. State of Delhi 1950 SCR 519; Mafatlal Industries Ltd.
& Ors. v. Union of India & Ors. (1997) 5 SCC 536: 1996 (10)
Suppl. SCR 585; Sushi/ Kumar Sharma v. Union of India & E
Ors. (2005) 6 sec 281: 2005 (1) Suppl. SCR 730; ©1980
Supp SCC 92: 1980 SCR 380; V. C. Shukla v. State (Delhi
Administration) 1980 Supp SCC 249: 1980 SCR 500;
Pannalal Binjraj & Anr. etc., etc. v. Union of India & Ors. 1957
SCR 233; State of Bihar & Ors. v. Bihar Distillery Ltd. & Ors. F
(1997) 2 SCC 453: 1996 (9) Suppl. SCR 479; State of Bihar
& Ors. v. Kripalu Shankar & Ors. (1987) 3 SCC 34: 1997 (2)
SCR 291; P. Sirajuddin, etc. v. State of Madras, etc. (1970)
1 SCC 595 : 1970 (3) SCR 931; S.P. Bhatnagar v. State of
Maharashtra (1979) 1 SCC 535: 1979 (2) SCR 875; Major
S. K. Kale v. State Of Maharashtra (1977) 2 SCC 394: 1977 G
(2) SCR 533; C. Chenga Reddy & Ors. v. State of A.P. (1996)
10 sec 193; 1996 (3) Suppl. SCR 479; Abdulla
Mohammed Pagarkar v. State (UT of Goa, Daman & Diu)
(1980) 3 sec 110: 1980 (1) SCR 604; R.S. Nayak v. A.R.
Antu/ay (1984) 2 SCC 183: 1971 (0) Suppl. SCR 834; Patel H
882 SUPREME COURT REPORTS [2014] 6 S.C.R.
A Laljibhai Somabhai v. State of Gujarat (1971) 2 SCC 376:
2005 (2) SCR 708; Iqbal Singh Marwah & Anr. v. Meenakshi
Marwah & Anr. (2005) 4 SCC 370: 2005 (2) SCR 708 -
referred to.
B Heller v. Doe 509 U.S. 312 (1993) - referred to.
4. Consideration
4.1. The impugned provision, viz;, Section 6-A came
to be enact~d after the decision of this Court in *Vineet
C Narain. The three-Judge Bench of this Court in *Vineet
Narain was directly concerned with constitutional validity
of the Single Directive No. 4.7(3). This Court declared
Single Directive 4.7(3)(1) invalid. Section 6-A replicates
Single Directive 4.7(3)(i). The only change is that
D executive instruction is replaced by the legislation. (Paras
50, 54, 55] (930-H; 931-A; 934-D-E]
*Vineet Narain vs. Union Of India (1998) 1 SCC 226 -
relied on.
E 4.2. The Constitution permits the State to determine,
by the process of classification, what should be regarded
as a class for purposes of legislation and in relation to
law enacted on a particular subject.There is bound to be
some degree of inequality when there is segregation of
F one class from the other.However, such segregation must
be rational and not artificial or evasive. In other words,
the classification must not only be based on some
qualities or characteristics, which are to be found in all
persons grouped together and not in others who are left
G out but those qualities or characteristics must have a
reasonable relation to the object of the legislation.
Differentia which is the basis of classification must be
sound and must have reasonable relation to the object
of the legislation. If the object itself is discriminatory, then
H explanation that classification is reasonable having
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 883
ORS.
rational relation to the object sought to be achieved is A
immaterial. (Para 57] (935-C-F]
4.3. Classification which is made in Section 6-A on
the basis of status in the Government service is not
permissible under Article 14 as it defeats the purpose of B
finding prima facie truth into the allegations of graft,
which amount to an offence under the PC Act, 1988.There
cannot be sound differentiation between corrupt public
servants based on their status because irrespective of
their status or position, corrupt public servants are C
corrupters of public power.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. Based on the position or status in
service, no distinction can be made between public
servants against whom there are allegations amounting D
to an offence under the PC Act, 1988.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. It is difficult to justify the
classification which has been made in Section 6-A E
because the goal of law in the PC Act, 1988 is to meet
corruption cases with a very strong hand and all public
servants are warned through such a legislative measure
that corrupt public servants have to face very serious
consequences. The purpose of a law may be either the F
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,
it advances public mischief and protects the crime-doer. G
The provision thwarts an independent, unhampered,
unbiased, efficient and fearless inquiry I investigation to
track do_wn the corrupt public servants. [Paras 58, 59]
(935-G-F; 936-A-F]
H
884 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 5. The -essence of police investigation is skilful
inquiry and collection of material and evidence in a
manner by which the potential culpable individuals are
not forewarned.The prevjous approval from the
Government necessarily required under Section 6-A
B would result in indirectly putting to notice the officers to
be investigated before commencement of
investigation.Moreover, if the CBI is not even allowed to
verify complaints by preliminary enquiry, how can the
case move forward? A preliminary enquiry is intended to
C ascertain whether a prima facie case for investigation is
made out or not. If CBI is prevented from holding a
preliminary enquiry, at the very threshold, a fetter is put
to enable the CBI to gather relevant material.As a matter
of fact, the CBI is not able to collect the material even to
o move the Government for the purpose of obtaining
previous approval from the Central Government. [Para
60) [936-G-H; 937-A-B]
6. As per the CBI Manual, (Paragraph 9.10) a
preliminary enquiry relating to allegations of bribery and
E corruption should be limited to the scrutiny of records
and interrogation of bare minimum persons which being
necessary to judge whether there is any substance in the
allegations which are being enquired into and whether
the case is worth pursuing further or not. Even this
F exercise of scrutiny of records and gathering relevant
information to find out whether the case is worth pursuing
further or not is not possible. In the criminal justice
system, the inquiry and investigation into an offence is
the domain of the police. The very power of CBI to
G enquire and investigate into the allegations of bribery and
corruption against a certain class of public servants and
officials in public undertakings is subverted and
impinged by Section 6-A. [Para 61) [937-C-E]
7.1. In *Vineet Narain in respect of Single Directive
H 4.7(3)(i), the Court said that every person accused of
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 885
ORS.
committing the same offence is to be dealt with in the A
same manner in accordance with law, which is equal in
its application to everyone. The sai~ observation in
*Vineet Narain, equally applies to Section 6-A. In *Vineet
Narain, this Court did not accept the argument that the
Single Directive is applicable only to certain class of B
officers above the specified level who are decision
making officers and a distinction can be made for them
for the purpose of investigation of an offence of which
they are accused. No distinction can be made for certain
class of officers specified in Section 6-A who are c
described as decision making officers for the purpose of
inquiry/investigation into an offence under the PC Act,
1988. 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 D
set of officers. If there is an accusation of bribery, graft,
illegal gratification or criminal misconduct against a
public servant, then the status of offender is of no
relevance. Where there are allegations against a public
servant which amount to an offence under the PC Act,
E
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.
Moreover, the result of the impugned legislation is that
the very group of persons, namely, high ranking
bureaucrats whose misdeeds and illegalities "1ay have to F
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 G
from the Central Government which would involve leak.;
and dis'closures at every stage. [Para 63] [938-G-H; 939-
A-F]
7.2. It is true that sub-Section (2) of Section 6-A has
H
886 SUPREME COURT REPORTS [2014] 6 S.C.R.
A taken care of observations of this Court in *Vineet Narain
insofar as trap cases are concerned. It also takes care of
the infirmity pointed out by this Court that in the absence
of any statutory requirement of prior permission or
sanction for investigation, it cannot be imposed as a
B condition precedent for initiation of im1estigation, but,
Section 6-A continues to suffer from the other two
infirmities which this Court noted concerning Single
Directive, viz.; (a) where inference is to be drawn that the
decision must have been for corrupt motive and direct
c evidence is not there, th~ expertise to take decision
whether to proceed or not in such cases should be with
the CBI itself and not with the Central Government and
(b) in any event the final decision to commence
investigation into the offences must be of the CBI with
0 the internal aid and advice and not of anybody else.
Section 6-A also suffers from the vice of classifying
offenders differently for treatment thereunder for inquiry
and investigation of offences, according to their status
in life. Every person accused of committing the same
offence is to be dealt with in the same manner in
E
accordance wi~h law, which is equal in its application to
everyone. [Para 64] [939-G-H; 940-A-C]
8.Way back in 1993, the Central Government
constituted a Committee under the Chairmanship of the
F former Home Secretary (Shri N.N. Vohra) to take stock of
all available information about the activities of the crime
syndicates/mafia organizations, which had developed
links with and were being permitted by Government
functionaries and political personalities. The report paints
G a frightening picture of criminal-bureaucratic-political
nexus - a network of high level corruption. The impugned
provision puts this nexus in a position to block inquiry
and investigation by CBI by conferring the power of
previous approval on the Central Government. [Para 65]
H [940-D-F]
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 887
ORS.
9.1. The classification is based on intelligible A
differentia when one set of bureaucrats of Joint Secretary
level and above who are working with the Central
Government are offered protection under Section 6-A
while the same level of officers who are working in the
States do not get protection though both classes of these B
officers are accused of an offence under PC Act, 1988 and
inquiry/investigation into such allegations is to be carried
out. Our answer is in lhe negative. The provision in
Section 6-A, thus, impedes tracking down the corrupt
senior bureaucrats as without previous approval of the C
Central Government, the CBI cannot even hold
preliminary inquiry much less an investigation into the
allegations. The protection in Section 6-A has propensity
of shielding the corrupt. T~e object of Section 6-A, that
senior public servants of the level of Joint Secretary and D
above who take policy decision must not be put to any
harassment, side-tracks the fundamental objective of the
PC Act, 1988 to deal with corruption and act against
senior public servants. The CBI is not able to proceed
even to collect the material to unearth prima facie E
substance into the merits of allegations. Thus, the object
of Section 6-A itself is discriminatory. That being the
position, the discrimination cannot be justified on the
ground that there is a reasonable classification because
it has rational relation to the o!Jject sought to be achieved.
F
[Para 67] [942-D-G]
Vineet Narain & Ors. v. Union of India & Anr. (1998) 1
/ SCC 226: 1997 (6) Suppl. SCR 595 ·- relied on.
9.2. Undoubtedly, every differentiation is not a· G
discrimination but at the same time, differentiation must
be founded on pertinent and real differences as
distinguished from irrelevant and artificial ones. A simple
physical grouping which separates one category from the
other without any rational basis is not a sound or H
888 SUPREME COURT REPORTS [2014] 6 S.C.R.
A intelligible differentia. The separation or segregation mus\.
have a systematic relation and rational basis and the
object of such segregation must not be discriminatory.
Every public servant against whom there is reasonable
suspicion of commission of crime or there are allegations
B of an offence under the PC Act, 1988 has to be treated
equally' and similarly under the law. Any distinction made
between them on the basis of their status or position in
service for the purposes of inquiry I investigation is
nothing but an artificial one and offends Article 14. Office
c of public power cannot be the workshop of personal
gain. The probity in public life is of great importance. How
can two public servants against whom there are
allegations of corruption or graft or bribe-taking or
criminal misconduct under the PC Act, 1988 can be made
0 to be treated differently because one happens to be a
junior officer and the other, a senior decision maker.
Corruption is an enemy of nation and tracking down
corrupt public servant, howsoever high he may -be, and
punishing such person is a necessary mandate under the
E PC Act, 1988. The status or position of public servant
does not qualify such public servant from exemption from
equal treatment. The decision making power does not
segregate corrupt officers into two classes as they are
common crime doers and have to be tracked down by the 1
same process of inquiry and investigation. [Paras 69, 70
F and 71] [943-8-H]
10.1. The PC Act, 1988 is a special statute and its
preamble shows that it has been enacted to consolidate
and amend the law relating to the prevention of
G corruption and for the matters connected therewith. It is
intended to make the corruption laws more effective by
widening their coverage and by strengthening the
provisions. It came to be enacted because Prevention of
Corruption Act, 1947 as amended from time to time was
H inadequate to deal with the offences of· corruption
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 889
ORS.
effectively. The new Act now seeks to provide for speedy A
trial of offences punishable under the Act in public
interest as the legislature had become aware of
corruption amongst the ·public servants. Corruption
corrodes the moral fabric of the society and corruption
by public servants not only leads to corrosion of the B
moral fabric of the society but also harmful to the national
economy and national interest, as the persons occupying
high posts in the Government by misusing their power
due to corruption can cause considerable damage to the
national economy, national interest and image of the c
country. [Paras 73, 74] [944-D-G]
J. Jayalalitha v. Union of India & Anr. (1999) 5 SCC 138
- relied on. ·
10.2. The PC Act, 1988 has also widened the scope D
of the definition of the expression 'public servant' and
incorporated offences under Sections 161 to 165A of the
Indian Penal Code (IPC). By Lokpal and Lokayuktas Act,
2013 (Act 1 of 2014), further amendments have been
made therein. The penalties relating to the offences under E
Sections 7, 8, 9, 12, 13 and 14 have been enhanced by.
these amendments. Section 7 makes taking gratification
by a public servant other than legal remuneration in
respect of an official act as an offence and provides
penalties for such offence. The expressions 'gratification'
and 'legal remuneration' have been explained in clauses F
(b) and (c) of the Explanation appended to Section 7.
Taking· gratification by corrupt or illegal means to
influence public servant is an offence under Section 8
while under Section 9, taking gratification for exercise of
personal influence with a public servant is an offence. G
Section 11 provides for an offence where a public servant
obtains valuable thing without consideration from person
concerned in proceeding or business transacted by such
public servant. Section 17 authorizes only certain le\ JI
of police officers to investigate the offences under the PC H
890 SUPREME COURT REPORTS [2014] 6 S.C.R.
A Act, 1988. An investigation into such offences by any
other police officer can be carried out only after having
proper authorization from the competent court or
competent authority as provided therein. Section 19
mandates that no Court shall take cognizance of an
B offence punishable under Sections 7, 10, 11, 13 and 15
alleged to have been committed by a public servant
except with the previous sanction as provided in that.
section. Section 19 does not permit any court to take
cognizan~e of an offence punishable under Sections 7,
c 10, 11, 13 and 15 of the PC Act, 1988 without previous
sanction from the competent authority where the offence
has been committed by a public servant who is holding
the office and by misusing or abusing the powers of the
office,· he has committed the offence. Section 19, thus,
provides to every public servant, irrespective of his
0
position in service, protection from frivolous and
malicious prosecution. [Paras 75 to 75.2 to 75.4] [944-H;
945-A-E; 947-C-F]
State of MP. and Ors. v. Ram Singh (2000) 5 SCC 88:
E 2000 (1) SCR 579; State of A.P. v. V. Vasudeva Rao [(2004)
9 sec 319: 2003 (5) Suppl. SCR 500 - relied on.
11. Criminal justice system mandates that any
investigation into the crime should be fair, in accordance
F with law and should not be tainted. 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 amounts to negation of
G equality under Article 14. Section 6-A fails in the context
of these facets of Article 14. The argument 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
H of rule of law amounts to breach of equality under Article
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 891
ORS.
14 and, therefore, breach of rule of law may be a ground A
for invalidating the Jegislation being in negation of Article
14. [Para 85] (953-B-D]
12. Section 156 of the Cr.P.C. enables any officer in
charge of a police station to investigate a cognizable B
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 havin9 power to try such case or commit the
case for trial regardless of the status of the officer C
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, CBI cannot do so in
view of Section 6-A. This anomaly in fact occurred in
Centre ,for PIL. That was a matter in which investigations D
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 PIL, this Court in Manohar Laf E
Sharma observed, "It is difficult to understand the logic
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 F
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." This clearly indicates that Section 6-A has brought G
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. In
Manohar Lal Sharma, the Attorney General made a H
892 SUPREME COURT REPORTS [2014] 6 S.C.R.
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
B connotation that an investigation has. To that extent,
Section 6-A, as it is, would 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
c 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
0 that object may not stand the test of Article 14. [Paras 86,
90] [953-E-H; 954-A-C]
Centre for Public Interest Litigation & Ors. v. Union of
India & Ors. (2012) 3 SCC 1: 2012 (3) SCR 147; Manohar
Lal Sharma v. Principal Secretary & Ors. (2014) 2 SCC 532;
E K. Veeraswami v. Union of India and Ors. (1991) 3 SCC 655:
1991 (3) SCR 189 - relied on.
13. Section 6-A does not satisfy the well-settled tests
in the context of Article 14 and is not capable of
F severance for the purposes of Section 13(1)(d)(ii) and (iii).
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
G 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
H controlled by the Government, is invalid and violative of ·
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 893
ORS.
Article 14 of the Constitution. As a necessary corollary, A
the provision contained in Section 26 (c) of the Act 45 of
2003 to that extent is also declared invalid. [Paras 96, 98]
[958-E, G-H; 959-A-B]
Case Law Reference : B
1997 (6) Suppl. SCR 595 Relied on Para 5
2007 (1) SCR 706 Referred to Para 12
2012 (3) SCR 147 Referred to Para 13
c
(2014) 2 sec 532 Referred to Para 13
1952 SCR 597 Referred to Para 15
(1983) 1 sec 305 Reied on Para 15
2000. (1) SCR 579 Relied on Para 16 D
2012 (3) 5CR 52 Referred to Para 16
2013 (1) SCR 1 Referred to Para 16
2012 (9) SCR 601 Referred to Para 16 E
1998 (2) Suppl. SCR 651 Relied on Para 16
2003 (1) Suppl. SCR 848 Referred to Para 17
2004 (5) Suppl. SCR 833 Referred to Para 17
F
1982 (1) SCR 438 Relied on Para 17
1973 (3) SCR 39 Relied on Para 17
1978 (2) SCR 1 Referred to Para 20
G
1997 (2) SC~ 1186 Referred to Para 20
2006 (5) Suppl. SCR 1 Referred to Para 20
2010 (6) SCR 857 Referred to Para 20
2011 (13) SCR 636 Referred to Para 20 H
894 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 1995 (1) Suppl. SCR 510 Referred to Para 20
1999 (5) Suppl. SCR 229 Referred to Para 20
1991 (3) SCR 189 Referred to Para 22
1974 (2) SCR 348 Relied on Para 25
B
1978 (2) SCR 621 Referred to Para 25
1981 (2) SCR 79 Referred to Para 25
1997 (6) Suppl. SCR 717 Referred to Para 25
c
2004 (3) SCR 982 Referred to Para 25
1973 (0) Suppl. SCR 1 Referred to Para 26
2008 (6) sec 1 Referred to Para 26
D 2012 (9) SCR 311 Referred to Para 26
1996 (3) SCR 721 Referred to Para 26
2012 (6) SCR 661 Referred to Para 26
E 509 U.S. 312 (1993) Referred to Para 26
1976 SCR 347 Referred to Para 27
(1955) 2 SCR 925 Referred to Para 27
1997 (5) Suppl. SCR 469 Referred to Para 27
F
1971 (0) Suppl. SCR 359 Referred to Para 27
1959 SCR 279 Relied on Para 28
1999 (2) SCR 690 Relied on Para 28
G
1950 SCR 519 Referred to Para 29
1996 (10) Suppl. SCR 585 Referred to Para 29
2005 (1) Suppl. SCR 730 Referred to Para 29
H 1980 SCR 380 Referred to Para 30
. DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 895
ORS.
1980 SCR 500 Referred to Para 30 A
1957 SCR 233 Referred to Para 30
(1962) 2 SCR 125 Relied on Para 30
1996 (9) Suppl. SCR 479 Referred to Para 31 B
1997 (2) SCR 291 Referred to Para 32
1970 (3) SCR 931 Referred to Para 32
1979 (2) SCR 875 Referred to Para 33
c
1977 (2) SCR 533 Referred to Para 33
1996 (3) Suppl. SCR 479 Referred to Para 33
1980 (1) SCR 604 Referred to Para 34
1971 (0) Suppl. SCR 834 Referred to Para 35 D
2005 (2) SCR 708 Referred to Para 35
(1950) SCR 869 Relied on Para 39
(1951) SCR 682 Relied on Para 39 E
(1952) SCR 284 Relied on Para 39
1952 SCR 435 Relied on Para 39
1952 SCR 710 Relied on Para 39
F
(1953) 4 SCR 589 Relied on Para 39
1953 SCR 661 Relied on Para 39
(1954) SCR 30 Relied on Para 39
G
(1954) SCR 1117 Relied on Para 39
(1955) 1 SCR 1045 Relied on Para 39
(1960) 2 SCR 592 Relied on Para 44
(1960) 2 SCR 646 Relied on Para 44 H
896 SUPREME COURT REPORTS [2014] 6 S.C.R.
A (1974) 3 SCR 760 Relied on Para 44
1957 S.C.R. 399 Relied on Para 45
1980 (2) SCR 16 Referred to Para 53
B (1999) 5 sec 138 Relied on Para 74
2001 (3) SCR 525 Referred to Para 76
2003 (5) Suppl. SCR 500 Relied on Para 77
(2005) 5 sec 517 Referred to Para 78
c
2011 (4) SCR 445 Referred to Para 79
CIVIL ORIGINAL JURISDICTION: Under Article 32 of the
. Constitution of India.
D ·Writ Petition (Civil) No.38 of 1997
WITH
W.P. (C) No. 21of 2014.
E Attorney General for India, K.V. Vishwanathan, L.
Nageswara Rao, Sidharth Luthra, A.S.G.s, Anil B, Divan, (AC),
A.K Panda (AC), Abani Kumar Sahu, Kamini Jaiswal,Rohit
Kumar Singh, Ranvir Singh, Dhurv Chopra, Prashant Bhushan,
Pranav Sachdeva, Aviral Saxena, S.N Terdal, B.V Bairam Das,
F P. Parmeswaren, Mohan Prasad Gupta, Adeeba Mujahid,
Aditya Singhla, Arjit Prasad, Arjun Dewan, Supriya Juneja,
Gurmohan S. Bedi, Gopal Sankaranarayanan, Vikramaditya for
the appearing parties.
The Judgment of the Court was delivered by
G
R.M. LODHA, CJI. 1. Section 6-A of the Delhi Special
Police Establishment Act, 1946 (for short, 'the DSPE Act'),
which was inserted by Act 45 of 2003, reads as under:
H "Section 6-A. Approval of Central Government to conduct
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 897
ORS. [R.M. LODHA, CJI.]
inquiry or investigation.- (1) The Delhi Special Police A
Establishment shall not conduct any inquiry or investigation
into any offence alleged to have been committed under the
Prevention of Corruption Act, 1988 (49 of 1988) except
with the previous approval of the Central Government
where such allegation relates to- B
(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 C
any Central Act, Government companies, societies
·and local authorities owned or controlled by that
Government.
(2) Notwithstanding anything contained in sub-section (1 ), D
no such approval shall be necessary for cases involving
arrest of a person on the spot on the charge of accepting
or attempting to accept any gratification other than legal
remuneration referred to in clause (c) of the Explanation
to section 7 of the Prevention of Corruption Act, 1988 (49 E
of 1988)."
2. The constitutional validity of Section 6-A is in issue in
these two writ petitions, both filed under Article 32 of the
Constitution. Since Section 6-A came to be inserted by Section
26(c) of the Central Vigilance Commission Act, 2003 (Act 45 F
of 2003), the constitutional validity of Section 26(c) has also
been raised. It is not necessary to independently refer to
Section 26(c). Our reference to Section 6-A of the DSPE Act,
wherever necessary, shall be treated as reference to Section
26(c) of the Act 45 of 2003 as well. G
Reference to the Constitution Bench
3. On February 4, 2005 when these petitions came up for
consideration, the Bench thought that these matters deserved- ·
H
898 SUPREME COURT REPORTS [2014) 6 S.C.R.
A to be heard by the larger Bench. The full text of the reference
order is as follows:
"In these petitions challenge is to the constitutional validity
of Section 6-A of the Delhi Special Police Establishment
Act, 1946 (for short, "the Act"). This section was inserted
B
in the Act w.e.f. 12-9-2003. It, inter alia, provides for
obtaining the previous approval of the Central Government
for conduct of any inquiry or investigation for any offence
alleged to have been committed under the Prevention of
Corruption Act, 1988 where allegations relate to officers
c of the level of Joint Secretary and above. Before insertion
of Section 6-A in the Act, the requirement to obtain prior
approval of the Central Government was contained in a
directive known as "Single Directive" issued by the
Government. The Single Directive was a consolidated set
D of instructions issued to the Central Bureau of Investigation
(CBI) by various Ministries/Departments regarding
modalities of initiating an inquiry or registering a case
against certain categorjes of civil servants. The said
directive was stated to have been issued to protect
E 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. ft was said that
F absence of such protection to them could adversely affect
the efficiency and efficacy of these institutions because of
the tendency of such officers to avoid taking any decisions
which could later lead to harassment by any malicious and
vexatious inquiries/investigations.
G
2. The Single Directive was quashed by this Court in
a judgment delivered on 18-12-1997 ( Vineet Narain & Ors.
v. Union of India & Anr. (1998) 1 SCC 226). Within a few
months after Vineet Narain judgment, by the Central
Vigilance Commission Ordinance, 1998 dated 25-8-1998,
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 899
ORS. [R.M. LODHA, CJI.]
Section 6-A was sought to be inserted providing for the A
previous approval of the Central Vigilance Commission
before investigation of the officers of the level of Joint
Secretary and above. On the intervention of this Court, this
provision was deleted by issue of another Ordinance
__promulgated on 27-10-1998. From the date of the decision B
in Vineet Narain case and till Insertion of Section 6-A w.e.f.
12-9-2003, there was no requirement of seeking previous
approval except for a period of two months from 25-8-1998
to 27-10-1998.
3. The validity of Section 6-A has been questioned on the C
touchstone of Article 14 of the Constitution. Le~rned
amicus curiae has contended that the impugned provision
is wholly subversive of independent investigation of
culpable bureaucrats and strikes at the core of rule of law
as explained in Vineet Narain case and the principle of D
independent, unhampered, unbiased and efficient
investigation. The contention is that Vineet Narain decision
frames a structure by which honest officers could fearlessly
enforce the criminal law and detect corruption uninfluenced
by extraneous political, bureaucratic or other influences E
and 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 CBI should even start an inquiry or
investigation against them or not. There will be no F
confider)tiality and insulation of the investigating agency
from politicar 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 very nexus of the criminal-bureaucrat- G
politician which is subverting the whole polity would be
involved in granting or refusing prior approval before an
inquiry or investigation can take place. Pointing out that the
essence of a police investigation is skilful inquiry and
collection of material and evidence in a manner by which H
900 SUPREME COURT REPORTS [2014) 6 S.C.R. -
A the potential culpable individuals are not forewarned, the
submission made is that the prior sanction of the same
department would result in indirectly putting to notice the
officers to be investigated before commencement of
investigation. Learned Senior Counsel contends that it is
B wholly irrational and arbitrary to protect highly-placed
public servants from inquiry or investigation in the light of
the conditions prevailing in the country and the corruption
at high places as reflected in several judgments of this
Court including that of Vineet Narain. Section 6-A of the
Act is wholly arbitrary and unreasonable and is liable to
c be struck down being violative of Article 14 of the
Constitution is the submission of learned amicus curiae.
4. In support of the challenge to the constitutional validity
of the impugned provision, besides observations made in
D the three-Judge Bench decision in Vineet Narain case
reliance has also been placed on various decisions
including S. G. Jaisinghani v. Union of India [(1967) 2 SCR
703), Shrilekha Vidyarthi v. State of UP. [(1991) 1 SCC
212), Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1
E SCC 722) and Mardia Chemicals Ltd. v. Union of India
((2004) 4 sec 311) to emphasize that the absence of
arbitrary power is the first essential of the rule of law upon
which our whole constitutional system is based. In Mardia
Chemicals case a three-Judge Bench held Section 17(2)
F of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 to
be unreasonable and arbitrary and violative of Article 14
of the Constitution. Section 17(2) provides for condition of
deposit of 75% of the amount before an appeal could be
G entertained. The condition has been held to be illusory and
oppressive. Malpe Vishwanath Acharya v. State of
Maharashtra ((1998) 2 SCC 1], again a decision of a
three-Judge Bench, setting aside the decision of the High
Court which upheld the provisions of Sections 5(10)(b),
11(1) and 12(3) of the Bombay Rents, Hotel and Lodging
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 901
ORS. [R.M. LODHA, CJI.]
House Rates Control Act, 1947 pertaining to standard rent A
in petitions where the constitutional validity of those
provisions was challenged on the ground of the same
being arbitrary, unreasonable and consequently ultra vires
Article 14 of the Constitution, has come to the concklsion
that the said provisions are arbitrary and unreasonable. B
5. Learned Solicitor General, on the other hand, though
very fairly admitting that the nexus between criminals and
some elements of establishment including politicians and
various sections of bureaucracy has increased and also
that there is a disturbing increase in the level of corruption C
and these problems need to be addressed, infractions of
the law need to be Investigated, investigations have to be
conducted quickly and effectively without any interference
and the investigative agencies should be allowed to
function without any interference of any kind whatsoever D
and that they have to be insulated from any extraneous
influences of any kind, contends that a legislation cannot
be struck down on the ground of arbitrariness or
unreasonableness as such a ground is available only to
quash executive action and orders. Further contention is E
that even a delegated legislation cannot be quashed on
the ground of mere arbitrariness and even for quashing
such a legislation, manifest arbitrariness is the requirement
of law. In support, reliance has been placed on
observations made in a three-Judge Bench decision in F
State of A.P.. v. McDowell & Co. [(1996) 3 SCC 709] that
no enactment can be struck down by just saying that it is
arbitrary or unreasonable and observations made in
Khoday Distilleries Ltd. v. State of Karnataka [1996 (10)
SCC 304] that delegated legislation can be struck down G
only if there is manifest arbitrariness. ·
6. In short, the moot question is whether arbitrariness and
unreasonableness or manifest arbitrariness and
unreasonableness, being facets of Article 14 of the H
902 SUPREME COURT REPORTS [2014] 6 S.C.R.
A Constitution are av"!ilable or not as grounds to invalidate
a legislation. Both counsel have placed reliance on
observations made in decisions rendered by a Bench
of three learned Judges.
7. Further contention of learned Solicitor General is that
B
the conclusion drawn in Vineet Narain case is erroneous
that the Constitution Bench decision in K. Veeraswami v.
Union of India [(1991) 3 sec 655] is not an authority for
the proposition that in the case of high officials,
requirement of prior permission/sanction from a higher
c officer or Head of the Department is permissible, the
submission is that conclusion reached in para 34 of Vineet
Narain decision runs contrary to observations and findings
contained in para 28 of Veeraswami case.
D 8. Having regard to the aforesaid, we are of the view that
the matters deserve to be heard by a larger Bench, subject
to the orders of Hon'ble the Chief Justice of India."
Background of Section 6-A
E 4. We may first notice the background in which Section 6-
A was inserted in the DSPE Act. In 1993, Vineet Narain
approached this Court under Article 32 of the Constitution of
India complaining inertia by the Central Bureau of Investigation
(CBI) in matters where the accusation made was against high
F dignitaries. The necessity of monitoring the investigation by this
Court is indicated in paragraph 1 of the judgment , which reads:
"These writ petitions under Article 32 of the Constitution
of India brought in public interest, to begin with, did not
G appear to have the potential of escalating to the
dimensions they reached or to give rise to several issues
of considerable significance to the implementation of rule
of law, which they have, during their progress. They began
as yet another complaint of inertia by the Central Bureau
of Investigation (CBI) in matters where the accusation
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 903
ORS. [R.M. LODHA, CJI.]
made was against high dignitaries. It was not the only A
matter of its kind during the recent past. The primary
question was: Whether it is within the domain of judicial
review and it could be an effective instrument for activating
the investigative process which is under the control of the
executive? The focus was on the question, whether any B
judicial remedy is available in such a situation? However,
as the case progressed, it required innovation of a
procedure within the constitutional scheme of judicial
review to permit intervention by the court to find a solution
to the problem. This case has helped to develop a c
procedure within the discipline of law for the conduct of
such a proceeding in similar situations. It has also
generated awareness of the need of probity in public life
and provided a mode of enforcement of accountability in
public life. Even though the matter was brought to the court
0
by certain individuals claiming to represent public interest,
yet a!5 the case progressed, in keeping with the
requirement of public interest, the procedure devised was
to appoint the petitioners' counsel as the amicus curiae
and to make such orders from time to time as were
consistent with public interest. Intervention in the E
proceedings by everyone else was.shut out uut permission
was granted to all, who so desired, to render such
assistance as they could, and to provide the relevant
material available with them to the amicus curiae for being
placed before the court for its consideration. In short, the F
proceedings in this matter have had great educative value
and it does appear that it has helped in future decision-
making and functioning of the public authorities."
5. In Vineet Narain 1, Single Directive No.4.7(3), which G
contained certain instructions to CBI regarding modalities of
initiating an inquiry or registering a case against certain
categories of civil servants, fell for consideration. We shall refer
1. Vineet Narain & Ors. v. Union of India & Anr.; ((1998) 1 SCC 226) H
904 SUPREME COURT REPORTS [2014) 6 S.C.R.
A to Single Directive No. 4.7(3) at some length a little later but
suffice to say here that this Court struck down Single Directive
No.4.7(3). While doing so, the Court also made certain
recommEfndations in respect of CBI and Central Vigilance
Commission (CVC). One of such recommendations was to
B confer statutqry status to CVC.
6. Initially, the Government decided to put tile proposed law
in place through an Ordinance so as to comply with the
directions of this Court in Vineet Narain1. Later on the
Government introduced the CVC Bill, 1998 in the Lok Sabha
C on 7.12.1998. The eve Bill, 1998 was referred to the
Department-related Parliamentary Standing Committee on
Home Affairs for examination and report, which presented its
report to the Parliament on 25.2.1999 and made certain
recommendations on the eve Bill, 1998. The Lok Sabha
D passed the CVC Bill, 1998 as the CVC Bill, 1999 on 15.3.1999
after adopting the official amendments moved in this regard.
However, before the Bill could be considered and passed by
the Rajya Sabha, the 12th Lok Sabha was dissolved.. on
26.4.1999 e!nd, consequently, the CVC Bill, 1999 lapsed. The
E CVC Bill w§s re-introduced with the title "The Central Vigilance
Commission Bill, 2003". The Bill was passed by both the
Houses of Parliament and received the assent of the President
on 11.9.2003. This is how the Central Vigilance Commission
Act, 2003 (for short, 'Act 45 of 2003') came to be enacted.
F
7. Act 45 of 2003 provides for the constitution of a Central
Vigilance Commission to inquire or cause inquiries to be
conducted into offences alleged to have been committed under
the Prevention of Corruption Act, 1988 (for short, 'PC Act, 1988')
G by certain categories of public servants of the Central
· Government, corporations established by or under any Central
Act, govemment companies, societies and local authorities
owned or:-controlled by the Central Government and for matters
conrfeCted therewith or incidental thereto. Section 26 of the Act
H 45 of 2003 provides for amendment of DSPE Act and clause
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 905
ORS. [R.M. LODHA, CJI.]
(c) thereof enacts that after Section 6, Section 6-A shall be A
inserted in the DSPE Act.
8. Section 6-A(1) of the DSPE Act requires approval of
the Central Government to conduct inquiry or investigation
where the allegations of commission of an offence under the
PC Act, 1988 relate to the employees of the Central B
Government of the level of Joint Secretary and above.
Genesis of Challenge to Section 6-A
9. On 24.2.1997, the Writ Petition (Civil) No.38/1997 came C
up for admission before a three-Judge Bench. On hearing the
petitioner, the writ petition was entertained but it was confined
to relief in paragraph 12(a) only. The notice was directed to be
issued to respondent No.1 (Director, CBI) and respondent No.5
(Union of India through Cabinet Secretary) and other
respondents were deleted from the array of parties. The Court D
on that date requested Shri Anil B. Divan, learned senior
counsel to appear as amicus curiae in the case. It is not
necessary to narrate the proceedings which took place on
various dates. It may, however, be mentioned that on 5.4.2002
when the matter was mentioned before the Bench, learned E
amicus curiae expressed his concern regarding the attempt to
restore the Single Directive, which was struck down in Vineet
Narain1, in the proposed legislation. Thereupon, the matter was
adjourned and Court requested the presence of learned
Attorney General on 19.4.2002. On 19.4.2002, the matter was F
ordered to be listed in September, 2002. As noted above, on
11.9.2003, Act 45 of 2003 received Presidential assent and
Section 6-A was inserted in the DSPE Act.
10. On 19.1.2004, Writ Petition (C) No.21/2004 was
ordered to be listed along with Writ Petition (C) No.38/1997. G
On 23.1.2004, notice was issued in Writ Petition (C) No. 21/
2004. In this writ petition, the counter was filed by the Union on
7.4.2004 and rejoinder affidavit was filed by the petitioner.
11. We have heard Mr. Anil B. Divan, learned senior H
906 SUPREME COURT REPORTS [2014] 6. S.C.R.
A counsel and amicus curiae in Writ Petition (C) No.38/1997 and
Mr. Prashant Bhushan, learned counsel for the petitioner in Writ
Petition {C) No.21/2004. In one matter, Mr. L. Nageswara Rao,
learned Additional Solicitor General appeared for Union of India
while in the other, Mr. K.V. Viswanathan, learned Additional
B Solicitor General appeared on behalf of Union of India. We have
heard both of them on behalf of the Union of India. We have
also heard Mr. Gopal Sankaranarayanan, learned counsel for
the intervenor.
Submissions of Mr. Anil B. Divan
c
12. Mr. Anil B. Divan, learned amicus curiae argues that
Section 6-A is an impediment to the rule of law and violative
of Article 14, which is part of the rule of law; that the impugned
provision creates a privileged class and thereby subverts the
D normal investigative process and violates the fundamental
right(s) under Article 14 of every citizen. He submits that if the
impugned provision is replicated at the State level and provision
of 'previous approval' by respective State: Governments is
required, then the rule of law would completely collapse in the
E whole of India and no high level corruption would be investigated
or punished. He relies upon decision of this Court in Vineet
Narain 1 • He also relies upon the decision in l.R. Coelho 2 in
support of the proposition that Article 14 is a part of the rule of .
law and it is the duty of the judiciary to enforce the rule of law.
F 13. According to learned amicus curiae, Se.ction 6-A
directly presents an illegal impediment to the insulation of CBI
and undermines the independence of CBI to hold a preliminary
enquiry (PE) or investigation. Citing the judgments of this Court
in Centre for Public Interest Litigation (2G Spectrum case) 3 and
G Manohar Lal Sharma 4 following Vineet Narain 1 , learned amicus
curiae submits that trend of these judgments is to preserve the
2. l.R. Coelho v. State of Tamil Nadu; [(2007) 2 SCC 1).
3. Centre for Public Interest Litigation & Ors. v. Union of India & Ors.; [(2012)
3 sec 11.
H 4. Manohar Lal Sharma v. Principal Secretary & Ors.; [(2014) 2 SCC 532).
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 907
ORS. [R.M. LODHA, CJI.]
rule of law by insulating the CBI from executive influence which A
could derail and result in inaction in enforcing the criminal law
against high level corruption. 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 Narain 1 judgment striking down the Single B
Directive) and 11.9.2003 (when eve Act 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
CVC Amendment Ordinance, 1998. He referred to N.N. Vohra
Committee report which paints a frightening picture of criminal- c
bureaucratic-political nexus - a network of high level corruption
- and submitted that the impugned provision puts this nexus in
a position to block inquiry and investigation by CBI by conferring
the power of previous approval on the Central Government.
14. Mr. Anil B. Divan, learned amicus curiae wants us to D
take judicial notice of the fact that high level bureaucratic
corruption goes hand in hand, on many occasions, with political
corruption at the highest level. This very group of high ranking
·bureaucrats, whose misconduct and criminality, if any, requires
to be first inquired into and thereafter investigated, can thwart, E
defeat and impair this exercise. In substance, the potential
accused would decide whether or not their conduct should be
inquired into. He argues that the essence of skillful and effective
police investigation is by collection of evidence and. material
secretly, without leakage so that the potential accused is not
forewarned leading to destruction or tempering of evidence and F
witnesses. Such investigation is compromised by the
impugned provision, viz., Section 6-A of the DSPE Act. The
requirement of previous approval in the impugned provision
would mean leakages as well as breach of confidentiality and
would be wholly destructive of an efficient investigation. The G
provision, such as Section 6-A, offers an impregnable shield
(except when there is a court monitored investigation) to the
criminal-bureaucratic-political nexus. If the CBI is not even
allowed to verify complaints by preliminary enquiry, how can the
case move forward? In such a situation, the very H
908 SUPREME COUR"l;.,REPORTS [2014] 6 S.C.R. .
A commencement of enquiry I investigation is thwarted and
delayed. Moreover, a preliminary enquiry is intended to
ascertain whether a prima facie case for investigation is made
out or not. If CBI is prevented from holding a preliminary enquiry,
it will not be able to even gather relevant material for the
B purpose of obtaining previous approval.
15. Learned amicus curiae submits that for judging the
validity of classification or reasonableness or arbitrariness of
State action, the Court is entitled to take notice of conditions
prevailing from time to time. He referred to certain portions of
C the N.N. Vohra Committee report, 2G Spectrum case 4 and the
facts of a case before Delhi High Court entitled 'Telecom
Watchdog' 5 and the case of M. Gopalakrishnan, Chairman and
Managing Director (CMD of Indian Bank). Learned amicus
curiae also relied upon decisions of this Court in V.G. Row 6 and
D D.S. Nakara 7 .
16. It is submitted by the learned amicus curiae that
pervasive corruption adversely affects welfare and other
activities and expenditures of the state. Consequently, the rights
of Indian citizens not only under Article 14 but also unaer Article
E 21 are violated. In this regard, he has relied upon the
observations made by this Court in Vineet Narain1; Ram
Singh 8 , Subramanian Swamy 9 , R.A. Mehta 10 , Balakrishna
Dattatrya Kumbhar 11 and In re. Special Courts Bill, 1978 12 •
F 5. Telecom Watchdog v. Union of India; (Delhi High Court W.P.(C) No. 9338/
2009).
6. State of Madras v. V.G. Row; [1952 SCR 597).
7. D.S. Nakara and Ors. v. Uniop of India; [(1983) 1 SCC 305).
8. State of M.P. and Ors. v. Ram Singh; [(2000) 5 SCC 88).
G 9. Subramanian Swamy V. Manmohan Singh and Anr.; [(2012) 3 sec 64).
10. State of Gujarat and Anr. v. Justice R.A. Mehta(Retd.) and Ors.; [(2013) 3
sec 11.
11. State of Maharashtra v. Balakrishna Dattatrya Kumbhar; [(2012) 12 SCC
384).
H 12. Special Courts Bill, 1978, In re,; [(1979) 1 SCC 380).
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 909
·ORS. [R.M. LODHA, CJI.]
17.Learned amicus curiae submits that Section 6-A A
confers on the Central Government unguided, unfettered and
unbridled power and the provision is manifestly arbitrary, entirely
·perverse and patently unreasonable. He relies upon the
decisions of this Court in Travancore Chemicals and
, Manufacturing Co. 13 , Krishna Mohan (P) Ltd. 14 , Canara Bank 15 - B
arid Nergesh Meerza 16 .
18.lt is vehemently contended by the learned amicus curiae
, that the classification as contained in Section 6-A creating a
privileged class of tl'le government officers of the level of Joint C
Secretary and above level and certain officials in public sector
undertakings, etc. is directly destructive and runs counter to the
whole object and reason of the PC Act, ,1988 read with the
DSPE Act and undermines the object of detecting and
punishing high level corruption. In this re~rd •. learned amicus D
curiae referred to protection given to Government officials under
Section 197 of the Code of Criminal Procedure (Cr.P.C.) and
under Section 19 of the PC Act, 1988. He ~rgues that the well-
~ settled two tests: (i) that classification must be founded on
intelligible differentia and (ii) that differentia(\must have a rational
relation with the object sought to be achie~d by the legislation, E
are not satisfied by Section 6-A. A privileged class of Central
Government employees has been creat~d inasmuch as the
protection offered to the category of the government officers of
the level of Joint Secretary and above regarding previous
approval does not extend to: (a) official I employees who are F
not employees of the Central Government, (b) employees of the
Central Government below Joint Secretary level, (c) employees
of Joint Secretary level and above in the states, (d) enquiry and
13. State of Kerala and Ors. v. Travancore Chemicals and Manufacturing Co.
and Anr.; [(1998) a sec 188]. G
14. Krishna Mohan (P) Ltd. v. Municipal Corporation of Delhi and Ors.; ((2003)
1 sec 151]. '
15. District Registrar and Collector, Hyderabad and Anr. v. Canara !;lank and
Ors.; ((2005) 1 SCC 496]. ' ,
16. Air India v. Nergesh Meerza and Ors.; ((1981) 4 SCC 335]. H
910 SUPREME COURT REPORTS [2014] 6 S.C.R.
A investigation of offences which are not covered by the PC Act,
1988, and (e) other individuals including ministers, legislators
and private sector employees. Learned amicus curiae relies
upon the decision of this Court in Vithal Rao 17
B Submissions of Mr. Prashant Bhushan for Centre for
Public Interest Litigation (CP/L-petitioner)
19.Mr. Prashant Bhushan, learned counsel for the
petitioner in the connected writ petition filed by Centre for
Public Interest Litigation (CPIL) has adopted the arguments of
C the learned amicus curiae. He submits that Section 6-A makes
cri~inal investigation against a certain class of public servants
unworkable and it completely militates against the rule of law.
He referred to the United Nations document entitled "United
Nations Convention Against Corruption" and submitted that
D Section 6-A of the DSPE Act interdicts enquiry or investigation
in respect of certain class of officers and puts direct hindrance
in combating corruption and, therefore, the provision is violative
of Article 14 of the Constitution.
E Submissions of Mr. Gopal Sankaranarayanan (intervenor)
20. Mr. Gopal Sankaranarayanan, appearing on behalf of
intervenor submits that Section 6-A of the DSPE Act breaches
the basic feature of rule of law. He argues that the basic structure
test can be applied to the statutes as well. By enactment of
F Section 6-A, the rule of law has suffered a two-fold violation:
(i) resurrection of the single directive in the form of legislation
without in any way removing the basis of the Vineet Narain1
judgment, and (ii) impediment of the due process (criminal
investigation) by imposing a condition at the threshold. In this
G regard, he has relied upon decisions of this Court in State of
Karnataka 18 ,L. Chandra Kumar 19 , Kuldip Nayar 20 , Madras Bar
17. Nagpur Improvement Trust and Anr. v. Vithal Rao and Ors.; [(1973) 1 SCC
500].
18. State of Karnataka v. Union of India and Anr.; [(1977) 4 SCC 608].
19. L. Chandra Kumar v. Union of India and Ors.; [(1997) 3 SCC 261].
H 20. Kuldip Nayar and Ors. v. Union of India and Ors.; [(2006) 7 SCC 1].
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 911
ORS. [R.M. LODHA, CJI.]
Association 21 , K.T. Plantation (P) Ltd 22 • , G.C. Kanungo 23 , Indra A
Sawhney (2) 24 , and l.R. Coelho 2 .
21. Mr. Gopal Sankaranarayanan, learned counsel for the
intervenor, also submits that there is an unreasonable
classification among policemen and among the accused and, B
in any case, the classification even if valid has no nexus with
the object sought to be achieved by Section 6-A, which is
apparently to protect the officers concerned. According to
learned counsel, Section 6-A is also inconsistent with the
Cr.P.C. In this regard, he refers to CBI Manual, Sections 19 and C
22 of the PC Act, 1988 and Section 197 of Cr.P.C.
Submissions of Mr. L. Nageswara Rao, ASG.
22. Mr. L. Nageswara Rao, learned Additional Solicitor
General stoutly defends Section 6-A. He submits that the D
rationale behind Section 6-A of the DSPE Act can be seen in
the reply to the debate in Parliament on the Central Vigilc:nce
Commission Bill by the then Union Minister of Law and Justice,
Mr. Arun Jaitley. The provision is defended on the ground that
those who are in decision making positions, those who have E
to exercise discretion and those who have to take vital
decisions could becorr.e target of frivolous complaints and
need to be protected. Therefore, SQme screening mechanism
must be put into place whereby serious complaints would be
investigated and frivolous complaints can be thrown out. If such F
protection is not given to senior decision makers, an)'one can
file a complaint and the CBI or the police can raid the houses
of such senior officers. This may affect governance inasmuch
as instead of tendering honest advice to political executives,
G
21: Union of India v. R. Gandhi, President, Madras Bar Association; ((2010) 11
sec 11.
22. K.T. Plantation (P) Ltd. & Anr. v. State of Karnataka; [(2011) 9 SCC 1).
23. G.C. Kanungo v. State of Orissa; [(1995) 5 SCC 96).
24. Indra Sawhney (2) v. Union of India and Ors.; [(2000) 1 SCC 168]. H
912 SUPREME COURT REPORTS [2014) 6 S.C.R.
A the senior officers at the decision-making level would only give
safe and non-committal advice. He argues that the object of
Section 6-A is to provide screening mechanism to filter out
frivolous or motivated investigation tnat could be initiated
against senior officers to protect them from harassment and to
B enable them to take decision without fear. In this regard, the
legal principles enunciated in K. Veeraswami 25 were strongly.
pressed into service by Mr. L. Nageswara Rao.
23. It is argued by the learned Additional Solicitor General
that Section 6-A is not an absolute bar because it does not
c prohibit investigation against senior government servants as
such. It only provides a filter or pre-check so that the
Government can ensure that senior officers at decision-making
level are not subjected to unwarranted haras~ment.
D 24. Emphasizing that the Central Government is committed
to weeding out vice of corruption, learned Additional Solicitor
General submits that requests for approvai under Section 6-A
are processed expeditiously after the Government of India had
constituted a Group of Ministers to consider certain measures
E that could be taken by Government to tackle corruption' iKld the
Group of Ministers suggested the measures to ensure that the
requests received from CBI under Section 6-A are examined
on priority and with objectivity.
25. Mr. L. Nageswara Rao, learned Additional Solicitor
F General submits that arbitrariness and unreasonableness
cannot by themselves be a ground to strike down legislation.
With reference to the decision of this Court in E.P. Royappa 26
he argues that while proposing a new dimension of.
arbitrariness as an anti-thesis to equality in Article 14, the Court
G used arbitrariness to strike down administrative action and not
as a ground to test legislations. He submits that in Maneka
25. K. Veeraswami v. Union of India and Ors.; [(1991) 3 SCC 655].
26. E.P. Royappa v. State ofT.N. and Anr.; [(1974) 4 SCC 3]
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 913
ORS. [R.M. LODHA, CJI.]
Gandhi27 the Court has not held that arbitrariness by itself is a A
ground for striking down legislations under Article 14. Ajay
Hasia 28 , learned Additional Solicitor General contends, also
does not make arbitrariness a ground to strike down legislation.
Distinguishing Malpe Vishwanath Acharya 29 , he submits that
this Court used the classification test to hold legislation to be B
arbitrary and the provision of standard r~t in Bombay Rent
Control Act was struck down as having become unreasonable
due to passage of time. Learned Additional Solicitor General
also distinguished Mardia Chemicals Ud 30 • He vehemently
contends that Courts cannot strik~ down legislations for being c
arbitrary and unreasonable so as to substitute their own wisdom
for that of the legislature.
26. Mr. L. Nageswara Rao submits that wisdom of
legislature cannot be gone into for testing validity of a legislation
and, apart from constitu~onal limitations, no law can be struck D
down on the ground that it is unreasonable or unjust. In this
regard, he relies upon Kesavananda Bharati 31 • He also
referred to In re. Special Courts Bill, 1978 1 ~. which explained
the principles enshrined in Article 14. In support of principle that
legislations can be declared invalid or unconstitutional only on E
two grounds: (a) lack of lt;!gislative competence, and (b)
violation of any fundamental rights or any provision of the
Constitution, learned Additional Solicitor General relies upon
Kuldip Nayar20 • He also relies upon Ashoka Kumar Thakufl 2
in support of the proposition that legislation cannot be F
27. Maneka Gandhi v. Union of India and Anr.; [(1978) 1 SCC 248).
28. Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors.; [(1981) 1 SCC
722].
29. Malpe Vishwanath Acharya and Ors. v. State of Maharashtra and Anr.;
[(1998) 2 sec 11 G
30. Mardia Chemicals Ltd. and Ors. v. Union of India and Ors.; [(2004) 4 SCC
311].
31. His Holiness Kesavananda Bharati Sripada9alvaru v. State of Kerala and
Anr.; [(1973) 4 sec 2~5].
32. Ashoka Kumar Th~kur v. Union of India and Ors.; [(2008) 6 SCC 1]. H
914 SUPREME COURT REPORTS [2014] 6 S.C.R.
A challenged simply on the ground of unreasonableness as that
by itself does not constitute a ground. He submits that a
Constitution Bench in K.T. Plantation (P) Ltd. 22 has held that
plea of unreasonableness, arbitrariness, proportionality, etc.,
always raises an element of subjectivity on which Court cannot
B strike down a statute or a statutory provision. Unless a
constitutional infirmity is pointed out, a legislation cannot be
struck down by just using the word 'arbitrary'. In this regard, he
heavily relies upon the decisions of this Court in In re. Natural
Resources Allocation33 , McDowelf34 and Rakesh Kohf/'3 5 . The
C decision of the US Supreme Court in He//er36 is also cited by
the learned Additional Solicitor General in support of the
proposition that Court should not sit as super legislature over
the wisdom or desirability of legislative policy.
27. Mr. L. Nageswara Rao, learned Additional Solicitor
D General argues that rule of law cannot be a ground for
invalidating legislations without reference to the Constitution. He
submits that rule of law is not a concept above the Constitution.
Relying upon Indira Nehru Gandhi 37, learned Additional Solicitor
General argues that meaning and constituent elements of rule
E of law must be gathered from the enacting provisions of the
Constitution; vesting discretionary powers in the Government
is not contrary to the rule of law. Moreover, he submits that
exceptions to the procedure in Cr.P.C. cannot be violative of
Articles 14 ·and 21 and such exceptions cannot be termed as
F violating the rule of law. In this regard, learned Additional
Solicitor General refers to Section 197 of Cr.P.C. and relies
upon Matajog Dobey38 , wherein this Court upheld constitutional
33. Natural Resources Allocation, In re, Special Reference No. 1 of 2012;
G 1c2012) 10 sec 11.
34. State of A.P. and Ors. v. McDowell & Co. and Ors.; [(1996) 3 SCC 709].
35. State of M.P. v. ~akesh Kohli and Anr.; [(2012) 6 SCC 312].
36. Heller v. Doe; [509 U.S. 312 (1993)].
37 .•.Indira Nehru Gandhi v. Raj Narain (1975 (Suppl.) SCC 1]
H 38. Matajog Dobey v. H. C. Shari; [(1955) 2 SCR 925]
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 915
ORS. [R.M. LODHA, CJI.]
validity of Section 197 and held that the said provision was not A
violative of Article 14. He also referred to Section 187 of
Cr.P.C., Section 6 of the Armed Forces (Special Provisions)
Act, 1958 and Section 187-A of the Sea Customs Act and
submitted that these provisions have been held to be'
constitutionally valid by this Court. Naga People's Movement B
of Human Rights 39 was cited by learned Additional Solicitor
General wherein Section 6 of the Armed Forces (Special
Provisions) Act, 1958 was held constitutional and Manhar Lal
Bhogilal 40 was cited wherein Section 187-A of the Sea Customs
Act was held valid. Learned Additional Solicitor General has c
also referred to Section 42 of the Food Safety and Standards
Act, 2006, Section 50 of the Prevention of Terrorism Act, 2002,
Section 12 of the Suppression of Unlawful Acts Against Safety
Of Maritime Navigation And Fixed Platforms On Continental
Shelf Act, 2002, Section 23 of the Maharashtra Control of
0
Organised Crime Act, 1999, Section 45 of the Unlawful
Activities (Prevention) Act, 1967, Section 20-A. of the Terrorist
and Disruptive Activities (Prevention) Act, 1987, Section 137
of the Customs Act, 1962, Section 11 of the Central Sales Tax
Act, 1956, Section 7 of the Explosive Substances Act, 1908, E
Section 20 of the Prevention of Food Adulteration Act, 1954,
Section 23 of Lokpal and Lokayuktas Act, 2013, Section 11
of Cotton Ginning and Pressing Factories Act, 1925, Section
12 of Andhra Pradesh Land Grabbing (Prohibition) Act, 1982,
Section 16 of Gujarat Electricity Supply Undertakings
(Acquisition) Act, 1969, Section 24 of Karnataka Control of F
Organized Crimes Act, 2000 and Section 9 of Bihar Non-
Government Educational Institution (Taking Over) Act, 1988 to
demonstrate that there are large number of provisions where
permission of the Government is required before taking
cognizance or for institution of an offence. G
28. Learned Additional Solicitor General submits that
39. Naga People's Movement of Human Rights v. Union of lndia;[(1998) 2
sec 109].
40. Manhar Lal Bhogilal Shah v. State of Maharashtra; [(1971) 2 SCC 119] H
916 SUPREME COURT REPORTS [2014) 6 S.C.R.
A Section 6-A satisfies the test of reasonable classification. The
public servants of the level of Joint Secretary and above take
policy decisions and, therefore, there is ar:i intelligible
differentia. As they take policy decisions, there is a need to
protect them from frivolous inquiries and investigation so that
B policy making does not suffer. ,Thus, there is rational nexus with
the object sought to be achieved. In this regard, learned
Additional Solicitor General has relied upon the decisions of
this Court in Ram Krishna Dalmia 41 , Union of lndia42 and Re:
Special Courts Bill, 197812. He also referred to the
c proceedings of the Joint Parliamentary Committee, Law
Minister's Speech, the Government of India (Transaction of
Business) Rules and the Central Secretariat Manual of
Procedure.
29. Mr. L. Nageswara Rao submits that conferment of
D unbridled I un-canalized power on the executive cannot be a
ground for striking down legislation as being violative of Article
14. Mere possibility of abuse of power cannot invalidate a law.
He cited the judgments of this Court in Re Special Courts Bill,
197812, N.B. Khare 43 , Mafatlal lndustries44 and Sushil Kumar
E Sharma 45 •
. ··-:·
30. Learned Additional Solicitor ~!:feral submits that
conferment of po~r on high authority r~~es the possibility
of its abuse to m~i~um. In support of thi~ s1:1bmission, learned
F Additional Solicitor General relies upon the decision of this
Court in Maneka Gandhi27 , Matajog Dubey38; V.C. Shukla 46 and
V.C.Shukla (llnd}47 •.He also submits t.hat absence of guidelines
41. Ram Krishna Dalmia v. Justice S.R. Tendolkar & Ors.; [1959 SCR 279)
42. Union of India & Ors. v. No.664950 IM Havildar/ Clerk SC Bagari; [(1999) 3
G sec 709)
43. N.B.Khare (Dr.) v. State of Delhi;[1950 SCR 519)
44. Mafatlal Industries Ltd. & Ors. v. Union of India & Ors.; [(1997) 5 SCC 536)
45. Sushil Kumar Shanna v. Union of India & Ors.; [(2005) 6 SCC 281)
46. V.C. Shukla v. State through CBI; [1980 SUPP, SCC 92)
H 47. V.C. Shukla v. State (Delhi Administration); [1980 Supp SCC 249)
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 917
. ORS. [R.M. LODHA, CJI.]
can only make the exercise of power susceptible to challenge A
and not the legislation. In this regard, Pannalal Binjraf 8 and
Jyoti Pershad4 9 are cited by him.
Submissions of Mr. K. V. Viswanathan, ASG
31. Mr. K.V. Viswanathan, learned Additional Solicitor B
General submits that there is presumption of constitutionality
and mutual respect inherent in doctrine of separation of powers.
He relies upon Bihar Distillery Ltd 50
32. Mr. K.V. Viswanathan, learned Additional Solicitor C
General referred to Sections 7, 11 and 13 of the PC Act, 1988
in order to show that all these provisions relate to discharge of
official functions.' The officers above the Joint Secretary level
are 'bestowed with crucial decision making responsibilities.
Citing· Kripalu Shankar51 and the speech of the then Minister of D
Law and Justice, he submits that people in decision making
process need to be given an snvironment to take decisions
without any u~ue extraneous pressure. He relies upon P.
Sirajuddin 52 toKhighlight the observations of this Court that
lodging of FIR against a government official especially, one who E
occupies top position in a department, even if baseless, would
do incalculabla.harm not only to the officer in particular, but to
the department he belongs to, in general.
33. Mr. KV. Viswanathan has highlighted that corruption
has two aspepts: (a) aspect related to decision making - abuse F
of position, ~ecuniary loss to the Government etc. and (b)
aspect of illegal pecuniary gain - bribery etc. That abuse of
positi.on in oraer to come within the mischief of corruption must
48. Pannalal Binjraj & Anr. etc., etc. v. Union of India & Ors.; [1957 SCR 233] G
49. Jyoti Per5had v. Administrator for the Union Territory of Delhi & Ors. [(1962)
2 SCR 125f
50. State of Bih.ar & Ors. v. Bihar Distillery Ltd. & Ors.;[(1997) 2 SCC 453)
51. State of Bih~r & Ors. v. Kripalu Shankar & Ors.; [(1987) 3 SCC 34)
52. P. Sirajuddiij, etc. v. State of Madras, etc.; ((1970) 1 SCC 595) H
918 SUPREME COURT REPORTS [2014] 6 S.C.R.
A necessarily be dishonest so that it may be proved that the
officer caused deliberate loss to the department. Mere violation
of codal provisions, or ordinary norms of procedural behaviour
does not amount to corruption. He cites decisions of this Court
in S.P. Bhatnagar53 , Major S. K. Kale54, C. Chenga Reddy55
B and Abdulla Mohammed Pagarkar56 .
34. Learned Additional Solicitor General submits that the
State is the first victim of corruption and the executive is in the
best position to adjudge whether it has been a victim of
C corruption. Section 6-A has been enacted to protect the
decision making process of the executive from undue
harassment and exercise of police powers by CBI. He cites the
judgment of this Court in A.R. Antulay57 •
35. Mr. K.V. Viswanathan has referred to other provisions
D under law providing for the aggrieved authority to take a·
decision whether the offence has been made out or not. In this
regard, he has invited our attention to Section 195 of Cr.P.C.
and the decision of this Court in Patel Laljibhai Somabha1-s 8 .
He also referred to Section 340 of Cr.P.C. which allows the
E court to adjudge whether perjury was committed, and if it was,
then whether it required prosecution. He relies upon the
decision of this Court in Iqbal Singh Marwah 59 •
36. Citing Manohar Lal Sharma4, learned Additional
Solicitor General submits that even in a court monitored
F investigation, the concerned officer could approach the
53. S.P. Bhatnagar v. State of Maharashtra; ((1979) 1 SCC 535]
54. Major S. K. Kale v. State of Maharashtra; ((1977) 2 SCC 394]
55. C. Chenga Reddy & Ors. v. Stat~ of A.P.; ((1996) 10 SCC 193]
G 56. Abdulla Moh1jmmed Pagarkar v. State (UT of Goa, Daman & Diu); ((1980)
3 sec 1101
57. R.S. Nayak v. A.R. Antulay; ((1984) 2 SCC 183]
58. Patel Laljibhai Somabhai v. State of Gujarat ((1971) 2 SCC 376]
59. Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr.; [(2005) 4 SCC
H 370] .
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 919
ORS. [R.M. LODHA, CJI.]
concerned court for an opportunity to be heard. Moreover, in A
Manohar Lal Sharma 4 , this court has noticed the office
memorandum dated 26.09.2011 approving the
recommendations made by the Group of Ministers which
provides inter alia for the concerned authority to give reasons
for granting/rejecting sanction under Section 6-A. He submits B
that when there is denial of sanction order under Section 6-A,
such order of the Central Government could be challenged in
a writ petition before a High Court. He says that United Nations
recognizes such a protection as Section 6-A in Article 30 of
the UN Convention against corruption. c
Principles applicable to Article 14
37. Article 14 reads:
"14. Equality before law.-The State shall not deny to any D
person equality before the law or the equal protection of
the laws within the territory of India."
38. The first part of Article 14, which was adopted from
the Irish Constitution, is a declaration of equality of the civil rights
of all persons within the territories of India. It enshrines a basic E
principle of republicanism. The second part, which is a corollary
of the first and is based on the last clause of the first section of
the Fourteenth Amendment of the American Constitution,
enjoins that equal protection shall be secured to all such
persons in the enjoyment of their rights and liberties without F
discrimination of favouritism. It is a pledge of the protection of
equal laws, that is, laws that operate alike on all persons under
like circumstances12.
39. Article 14 of the Constitution incorporates concept of G
equality and equal protection of laws. The provisions of Article
14 have engaged the attention of this Court from time to time.
The plethora of cases dealing with Article 14 has culled out
principles applicable to aspects which commonly arise under
this Article. Among those, may be mentioned, the decisions of H
920 SUPREME COURT REPORTS [201.4) 6 S.C.R.
A this Court in Chiranjit Lal Chowdhuri6°, F.N. Balsara61 , Anwar
Ali Sarkar' 2, Kathi Raning Rawat6 3 , Lachmandas Kewalram
Ahuja 64 , Syed Qasim Razv1'6 5 , Habeeb Mohamed67 , Kedar
Nath Bajoria and innovated to even associate the members of
this' Court to contribute their V.M. Syed Mohammad &
B Compan'/ 8 • The most of the above decisions were considered
in Budhan Choudhry6 9 • This Court exposited the ambit and
scope of Article 14 in Budhan Choudhry6 9 as follows:
"It is now well-established that while article 14 forbids class
legislation, it does not forbid reasonable classification for
c the purposes of legislation. In order, however, to pass the
test of permissible classification two conditions must be
fulfilled, namely, (i) that the classification must be founded
on an intelligible differentia which distinguishes persons or
things that are grouped together from others left out of the
D group, and (ii) that differentia must have a rational relation
to the object sought to be achieved by the statute in
question. The classification may be founded on different
bases; namely, geographical, or according to objects or
occupations or the like. What is necessary is that there
E must be a nexus between the basis of classification and
the object of the Act under consideration,. It is also well-
established by the decisions of this Court that article 14
condemns discrimination not only by a substantive law but
also by a law of procedure."
F 60. Chiranjit Lal Chowdhuri v. Union of India & Ors.; [(1950) SCR 869]
61. State of Bombay & Anr. v. F. N. Balsara; [(1951) SCR 682]
62. State of West Bengal v. Anwar Ali Sarkar[(1952) SCR 284]
63. Kathi Raning Rawat v. State of Saurashtra [1952 SCR 435]
64. Lachmandas Kewalram Ahuja v. State of Bombay [1952 SCR 710]
G 65. Syed Qasim Razvi v. State of Hyderabad & Ors. [(1953) 4 SCR 589)
66. Habeeb Mohamed v. State of Hyderabad [1953 SCR 661]
67. Kedar Nath Bajoria v. State of West Bengal [(1954) SCR 30]
68. V.M. Syed Mohammad & Company v. State of Andhra Pradesh ((1954) SCR
1117]
H 69. Budhan Choudhry & Ors. v. State of Bihar [(1955) 1 SCR 1045]
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 921
ORS. [R.M. LODHA, CJI.]
40. In Ram Krishna Dalmia41 , the Constitution Bench of A
five Judges further culled out the following principles enunciated
in the above cases -
"(a) that a law may be constitutional even though it relates
to a single individual if, on account of some special B
circumstances or reasons applicable to him and not
applicable to others, that single individual may be treated
as a class by himself;
(b) that there is always a presumption in favour of the
constitutionality of an enactment and the burden is upon C
him who attacks it to show that there has been a clear
transgression of the constitutional principles;
(c) that it must be presumed that the legislature
understands and correctly appreciates the need of its own D
people, that its laws are directed to problems made
manifest by experience and that its discriminatio:is are
based on adequate grounds;
(d) that the legislature is free to recogr:iise degrees of harm
and may confine its restrictions to those cases where the E
need is deemed to be the clearest;
(e) that in order to sustain the presumption of
constitutionality the court may take into consideration
matters of common knowledge, matters of common report, F
the history of the times and may assume every state of
facts which can be conceived existing at the time of
legislation; and
(f) that while good faith and knowledge of the existing
conditions on the part of a legislature are to be presumed, G
if there is nothing on the face of the law or the surrounding
circumstances brought to the notice of the court on which
the classification may reasonably be regarded as based,
the presumption of constitutionality cannot be carried to the
extent of always holding that there must be some H
922 SUPREME COURT REPORTS [2014] 6 S.C.R.
A undisclosed and unknown reasons for subjecting certain.
individuals or corporations to hostile or discriminating
legislation."
41. In Ram Krishna Dalmia41 , it was emphasized that the
above principles will have to be constantly borne in mind by the
8
court when it is called upon to adjudge the constitutionality of
any particular law attacked as discriminatory and violative of
the equa·1 protection of laws.
42. Having culled out the above principles, the Constitution
C Bench in Ram Krishna Dalmia41 , further observed that statute '
which may come up for consideration on the question of its
validity under Article 14 of the Constitution may be placed in
one or other of the following five classes: .
D "(i) A statute may itself indicate the persons or things to
whom its provisions are intended to apply and the basis
of the classification of such persons or things may appear
on the face of the statute or may be gathered from the
surrounding circumstances known to or brought to the
notice of the court. In determining the validity or otherwise
E
of such a statute the court has to examine whether such
classification is or can be reasonably regarded as based
upon some differentia which distinguishes such persons
or things grouped together from those left out of the group
and whether such differentia has a reasonable relation to
F
the object sought to be achieved by the statute, no matter
whether the provisions of the statute are intended to apply
only to a particul::ir person or thing or only to a certain class
of persons or things. Where the court finds that the
classification satisfies the tests, the court will uphold the
G validity of the law.
(ii) A statute may direct its provisions against one individual
person or thing or to several individual persons or things
but no reasonable basis of classification may appear on
H the face of it or be deducible from the surrounding
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 923
ORS. [R.M. LODHA, CJI.]
circumstances, or matters of common knowledge. In such A
a case the court will strike down the law as an instance of
naked discrimination.
(iii) A statute may not make any classification of the
persons or things for the purpose of applying its provisions B
but may leave it to the discretion of the Government to
select and classify persons or things to whom its
provisions are to apply. In determining the question of the .
validity or otherwise of such a statute the court will not strike
down the law out of hand only because no classification
appears on its face or because a discretion is given to the C
Government to make the selection or classification but will
go on to examine and ascertain if the statute has laid down
any principle or policy for the guidance of the exercise of
discretion by the Government in the· matter of the selection
or classification. After such scrutiny the court will strike D
down the statute if it does not lay down any principle or
policy for guiding the exercise of discretion by the
Government in the matter of selection or classification, on
the ground that the statute provides for the delegation of
arbitrary and uncontrolled power to the Government so as E
to enable it to discriminate between persons or things
similarly situate and that, therefore, the discrimination is
inherent in the statute itself. In such a case the court will
strike down both the law as well as the executive action
taken under such law. F
(iv) A statute may not make a classification of the persons
or things for the purpose of applying its provisions and may
leave it to the discretion of the Government to select and
classify the persons or things to whom its provisions are G
to apply but may at the same time lay down a policy or
principle fo~ the guidance of the exercise of discretion by
the Government in the matter of such selection or
classification.
H
924 SUPREME COURT REPORTS (2014] 6 S.C.R.
A (v) A statute may not make a classification of the persons
or things to whom their provisions are intended to apply
and leave it to the discretion of the Government to select
or classify the persons or things for applying those
provisions according to the policy or the principle laid
B down by the statute itself for guidance of the exercise of
discretion by the Government in the matter of such
selection or classification. If the Government in making th.e
selection or classification does not proceed on or follow
such policy or principle, then in such a case the executive
c action but not the statute should be condemned as
unconstitutional."
43. In Vithal Rao 17 , the five-Judge Constitution Bench-had
an occasion to consider the test of reasonableness under
Article 14 of the Constitution. It noted that the State can make
D a reasonable classification for the purpose of legislation ahd
that the classification in order to be reasonable must satisfy two
tests: (i) the classification must be founded on intelligible
differentia and (ii) the differentia must have a rational relation
with the object sought to be achieved by the legislation in
E question. The Court emphasized that in this regard object itself
should be lawful and it cannot be discriminatory. If the object is
to discriminate against one section of the minority, the
discrimination cannot be justified on the ground that there is a
reasonable classification because it has rational relation to the
F object sought to be achieved.
44. The constitutionality of Special Courts Bill, 1978 came
up for consideration in re. Special Courts Bill, 197812 as the
President of India made a reference to this Court under Article
G 143(1) of the Constitution for consideration of the question
whether the "Special Courts Bill" or any of its provisions, if
enacted would be constitutionally invalid. The seven Judge
Constitution Bench dealt with the scope of Article 14 of the
Constitution. Noticing the earlier decisions of this Court in
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 925
ORS. [R.M. LODHA, CJI.]
Budhan Choudhry6 9 , Ram Krishna Dalmia41 , C.I. Emden70 , A
Kangsari Haldar71 , Jyoti Pershad4 9 and Ambica Mills Ltd. 72 ,
in the majority judgment the then Chief Justice Y.V.
Chandrachud, inter alia, exposited the following propositions
relating to Article-14:
B
"(1)xxx xxx )()()(
(2) The State, in the exercise of its governmental power,
has of necessity to make laws operating differently on
different groups or classes of persons within its tetritory
to attain particular ends in giving effect to its policies, and C
it must possess for that purpose large powers of
distinguishing and classifying persons or things to be
subjected to such laws.
(3) The constitutional command to the State to afford equal D
protection of its laws sets a goal not attainable by the
invention and application of a precise formula. Therefore,
classification need not be constituted by an exact or
scientific exclusion or inclusion of persons or things. The
courts should not insist on delusive exactness or apply E
doctrinaire tests for determining the validity of classification
in any given case. Classification is justified if it is not
palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is
not that the same rules of law should be applicable to all F
persons within the Indian territory or that the same
remedies should be made available to them irrespective
of differences of circumstances. It only means that a.II
persons similarly circumstanced shall be treated alike both
in privileges conferred and liabilities imposed. Equal laws G
· 70. C.I. Emden v. State of U.P.; [(1960) 2 SCR 592]
71. Kangsari Haldar & Anr. v. State of West Bengal; [(1960) 2 SCR 646]
72. State of Gujarat & Anr. v. Shri Ambica Mills Ltd., Ahmedabad & Anr.; [(1974)
3 SCR 760]
H
926 SUPREME COURT REPORTS [2014] 6 S.C.R.
A would have to be applied to all in the same situation, and
there should be no discrimination between one person and
another if as regards the subject-matter of the legislation
their position is substantially the same.
(5) By the process of classification, the State has the
B
power of determining who should be regarded as a class
for purposes of legislation and in relation to a law enacted
on a particular subject. This power, no doubt, in some
degree is likely to produce some inequality; but if a law
deals with the liberties of a number of well- defined
c classes, it is not open to the charge of denial of equal
protection on the ground that it has no application to other
persons. Classification thus means segregation in classes
which have a systematic relation, usually found in common
properties and characteristics. It postulates a rational
D basis and does not mean herding together of certain
persons a_nd classes arbitrarily.
(6) The law can make and set apart the classes according
to the needs and exigencies of the society and as
E suggested by experience. It can recognise even degree
of evil, but the classification should never be arbitrary,
artificial or evasive.
(7) The classification must not be arbitrary but must be
rational, that is to say, it must not only be based on some
F qualities or characteristics which are to be found in all the
persons grouped together and not in others who are left
out but those qualities or characteristics must have a
reasonable relation to the object of the legislation. In order
to pass the test, two conditions must be fulfilled, namely,
G (1) that the classification must be founded on an intelligible
differentia which distinguishes those that are grouped
together from others and (2) that that differentia must have
a rational relation to the object sought to be achieved by
the Act.
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 927
ORS. [R.M. LODHA, CJI.]
(8) The differentia which is the basis of the classification A
and the object of the Act are distinct things and what is
necessary is that there must be a nexus between them. In
short, while Article 14 forbids class discrimination by
conferring privileges or imposing liabilities upon persons
arbitrarily selected out of a large number of other persons B
similarly situated in relation to the privileges sought to be
conferred or the liabilities proposed to be imposed, it does
not forbid classification for the purpose oflegislation,
provided such classification is not arbitrary in the sense
above mentioned. c
(9) If the legislative policy is clear and definite and as an
effective method of carrying out that policy a discretion is
vested by the statute upon a body of administrators or
officers to make selective application of the law to certain
classes or groups of persons, the statute itself cannot be D
condemned as a piece of discriminatory legislation. In such
cases, the power given to the executive body would import
a duty on it to classify the subject-matter of legislation in
accordance with the objective indicated in the statute. If the
administrative body proceeds to classify persons or things E
on a basis which has no rational relation to the objective
of the Legislature, its action can be annulled as offending
against the equal protection clause. On the other hand, if
the statute itself does not disclose a definite policy or
objective and it confers authority on another to make F
selection at its pleasure, the statute would be held on the
face of it to be discriminatory, irrespective of the way in
which it is applied.
(10) Whether a law conferring discretionary powers on an G
administrative authority is constitutionally valid or not
should not be determined on the assumption that such
authority will act in an arbitrary manner in exercising the
discretion committed to it. Abuse of power given by law
does occur; but the validity of the law cannot be contested
H
928 SUPREME COURT REPORTS [2014] 6 S.C.R.
A because of such an apprehension. Discretionary power is
not necessarily a discriminatory power.
(11) Classification necessarily implies the making of a
distinction or discrimination between persons classified
and those who are not members of that class. It is the
B
essence of a classification that upon the class are cast
duties and burdens different from those resting upon the
general public. Indeed, the very idea of classification is that
of inequality, so that it goes without saying that the mere
fact of inequality in no manner determines the matter of
c constitutionality.
(12) Whether an enactment providing for special
procedure for the trial of certain offences is or is not
discriminatory and violative of Article 14 must be
D determined in each case as it arises, for, no general rule
applicable to all cases can safely be laid down. A practical
assessment of the operation of the law in the particular
circumstances is necessary.
(13) A rule of procedure laid down by law comes as much
E
within the purview of Article 14 as any rule of substantive
law and it is necessary that all litigants, who are similarly
situated, are able to avail themselves of the same
procedural rights for relief and for defence with like
protection and without discrimination."
F
45. In Nergesh Meerza 16 , the three-Judge Bench of this
Court while dealing with constitutional validity of Regulation
46(i)(c) of Air India Employees' Service Regulations (referred
to as 'A.I. Regulations') held that certain conditions mentioned
G in the Regulations may not be violative of Article 14 on the
ground of discrimination but if it is proved that the conditions
laid down are entirely unreasonable and absolutely arbitrary,
then the provisions will have to be struck down. With regard to
due process clause in the American Constitution and Article
H 14 of our Constitution, this Court referred to Anwar Ali Sarkar62,
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 929
ORS. [R.M. LODHA, CJI.]
and observed that the due process clause in the American A
Constitution could not apply to our Constitution. The Court also
referred to A.S. Krishna73 wherein Venkatarama Ayyar, J.
observed: ''The law would thus appear to be based on the due
process clause, and it is extremely doubtful whether it can have
application under our Constitution." B
46. In D.S. Nakara7 , the Constitution Bench of this Court
had an occasion to consider the scope, content and meaning
of Article 14. The Court referred to earlier decisions of this
Court and in para 15 (pages 317-318), the Court observed:
c
"Thus the fundamental principle is that Article 14 forbids
class legislation but permits reasonable classification for
fhe purpose of legislation which classification must satisfy
the twin tests of classification being founded on an
intelligible differentia which distinguishes persons or things D
that are grouped together from those that are left out of the
group and that differentia must have a rationai nexus to the
object sought to be achieved by the statute in question."
47. In E.P. Royappa 26 , it has be~n held by this Court that E
the basic principle which informs both Articles 14 and 16 are
equality. and inhibition against discrimination. This Court
observed in para 85 (page 38 of the report) as under:
" .... From a positivistic point of view, equality is antithetic
to arbitrariness. In fact equality and arbitrariness are sworn F
enemies; one belongs to the rule of law in a republic while
the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and
is therefore violative of Article 14, and if it affects any G
matter relating to public employment, it is also violative of
Article 16. Articles 14 and 16 strike at arbitrariness in
State action and ensure fairness and equality of treatment."
73. A.S. Krishna v. State of Madras; [1957 S.C.R. 399). H
930 SUPREME COURT REPORTS [2014) 6 S.C.R.
A Court's approach
· 48. Where there is challenge to the constitutional validity
of a law enacted by the legislature, the Court must keep in view
that there is always a presumption of constitutionality of an
enactment, and a clear transgression of constitutional principles
8
must be shown. The fundamental nature and importance of the
legislative process needs to be recognized by the Court and
due regard and deference must be accorded to the legislative
process. Where the legislation is sought to be challenged as
being unconstitutional and violative of Article 14 of the
C Constitution, the Court must remind itself to the principles
relating to the applicability of Article 14 in relation to invalidation
of legislation. The two dimensions of Article 14 in its application
to legislation and rendering legislation invalid are now well
recognized and these are (i) discrimination, based on an
D impermissible or invalid classification and (ii) excessive
delegation of powers; conferment of uncanalised and unguided
powers on the executive, whether in the form of delegated
legislation or by way of conferment of authority to pass
administrative orders - if such conferment is without any
E guidance, c~ntrol or checks, it is violative of Article 14 of the·
Constitution. The Court also needs to be mindful that a
legislation does not become unconstitutional merely because
there is another view or because another method may be
considered to be as good or even more effective, like any issue
F of social, or even economic policy. It is well settled that the
courts do not substitute their views on what the policy is.
Consideration
49. Several objections have been raised against this·
G provision in the context of Article 14. First, we shall consider
the chalfenge against the validity of classification which Section
6-A(1) makes and the laok of relationship between the Basis
of that classification and the object which it seeks to achieve.
H 50. The impugned provision, viz., Section 6-A came to be
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 931
ORS. [R.M. LODHA, CJI.]
enacted after the decision of this Court in Vineet Narain1. It is A
important to bear in mind that the three-Judge Bench of this
Court in Vineet Narain1 was directly concerned with
constitutional validity of the Single Directive No. 4.7(3), which
to the extent relevant for the present purposes, reads:
B
"4.7(3)(i) In regard to any person who is or has been a
decision-making level officer (Joint Secretary or equivalent
or above in the Central Government or such officers as are
or have been on deputation to a Public Sector.
Undertaking; officers of the Reserve Bank of India of the
level equivalent to Joint Secretary or above in the Central C
Government, Executive Directors and above of the SEBI
and Chairman & Managing Director and Executive
Directors and such of the bank officers who are one level
below the Board of Nationalised Banks), there should be
prior sanction of the Secretary of the Ministry/Department D
concerned before SPE takes up any enquiry (PE or RC),
including ordering search in respect of them. Without such
sanction, no enquiry shall be initiated by the SPE.
(ii) xxx )()()( )()()(
E
(iii) xxx )()()( )()()(
(iv) xxx )()()( xxx."
51. The above provision contained in Single Directive F
4.7(3)(i) was sought to be justified by the learned Attorney
General in Vineet Narain1 on the ground that the officers at the
decision making level need the protection against malicious or
vexatious investigations in respect of honest decisions taken
by them. Learned Attorney General in Vineet Narain1 submitted G
that such a structure to regulate the grant of sanction by a high
authority together with a time-frame to avoid any delay was
sufficient to make the procedure reasonable and to provide for
an objective decision being taken for the grant of sanction
within the specified time. It was urged that refusal of sanction
H
932 SUPREME COURT REPORTS [2014) 6 S.C.R.
A would enable judicial review of that decision in case of any
grievance.
52. This Court in Vineet Narain1 took notice of the report
submitted by IRC, which recorded:
B "In the past several years, there has been p,rogressive
increase in allegations of corruption involying public
servants. Understandably, cases of this nature have
attracted heightened media and public attention. A general
impression appears to have gained ground that the Central
C investigating agencies concerned are subject to
. extraneous pressures and have been in.dulging in dilatory
tactics in not bringing the guilty to book. The decisions of
higher courts to directly monitor investigations in certain
cases have added to the aforesaid belief....
D
53. The Court then discussed the earlier decisions of this
Court in J.A. C. Saldanha74 and K. Veeraswami2 5 and also the
provisions of the DSPE Act and held that: "Powers of
investigation which are governed by the statutory provisions and
E they cannot be curtailed by any executive instruction." Having
said that, this Court stated that the law did not classify offenders
differently for treatment thereunder, including investigation of
offerices and prosecution for offences, according to their status
in life. Every person accused of committing the same offence
is to be dealt with in the same manner in accordance with law,
F which is equal in its application to everyone. The Single
Directive is applicable only to certain persons above the
specified level who are described as decision-making officers.
Negativing that any distinction can be made for them for the
purpose of investigation of an offence of which they are
G accused, this Court in paragraphs 45 and 46 held as under:
"45. Obviously, where the accusation of corruption is based
on direct evidence and it does not require any inference
H 74. State of Bihar & Anr. v. J.A.C. Saldanha & Ors.; [(1980) 1 ~CC 554).
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 933
ORS. [R.M. LODHA, CJI.]
to be drawn dependent on the decision-making process, A
there is no rational basis to classify them differently. In other
words, jf the accusation be of bribery which is supported
by direct evidence of acceptance of illegal gratification by
them, including trap cases, it is obvious that no other factor
is relevant and the level or status of the offender is B
irrelevant. It is for this reason that it was conceded that such
cases, i.e., of bribery, including trap cases, are outside the
scope ofthe Single Directive. After some debate at the
Bar, no serious attempt was made by the learned Attorney
General to support Inclusion within the Single Directive of c
cases in which the offender is alleged to be in possession
of disproportionate assets. It is clear that the accusation
of possession of disproportionate assets by a person is
also based on direct evidence and no factor pertaining to
the expertise of decision~making is involved therein. We D
have,_therefore, rio doubt that the Single Directive cannot
include within its· ambit cases of possession of
disproportionate assets by the offender. The question now
is only with regard to cases other than those of bribery,
including trap cases, and of possession of
disproportionate asse"ts being covered by the Single E
Directive.
46. There may be other cases where the accusation cannot
be supported by direct evidence and is a matter of
inference of corrupt motive for the decision, with nothing F
to prove directly any illegal gain to the decision-maker.
Those are cases in which the inference drawn is that the
. decision must have been made for a corrupt motive
because the decision could not have been reached
otherwise by an officer at that level in the hierarchy. This G
is, therefore, an area where the opinion of persons with
requisite expe.rtise in decision-making of that kind is
relevant and, may be even decisive in reaching the
conclusion whether the allegation requires any
investigation to be made. In view:of the fact that the CBI H
934 SUPREME COURT REPORTS [2014] 6 S:C.R.
A or t.he police force does not have the expertise within its
fold for the formation of the requisite opinion in such cases,
the need for the inclusion of such a mechanism comprising
of experts in the field as a part of the infrastructure of the
CBI is obvious, to decide whether the accusation made
B discloses grounds for a reasonable suspicion of the
commission of an offence and it requires investigation. In
the absence of any such mechanism within the
infrastructure of the CBI, comprising of experts in the field
who can evaluate the material for the decision to be made;
c introduction therein of a body of experts having expertise.
of the kind of business which requires the decision to be
made, can be appreciated. But then, the final opinion is
to be of the CBI with the aid of that advice and not that of
anyone else. It would be more appropriate to have such a
body within the infrastructure of the CBI itself."
D
54. This Court, accordingly, declared Single Directive
4.7(3)(i) being invalid.
55. Section 6-A replicates SinQle Directive 4.7(3)(i), which
was struck down by this Court. The only change is that executive
E instruction is replaced by the legislation. Now, ·insofar as the
vice that was pointed out by this Court that powers of
investigation which are goverliled by the statutory provisions
under the DSPE Act and they cannot be estopped or curtailed:
by any executive instruction issued under Section 4(1) of that'
F Act is concerned, it has been remedied. But the question
remains, and that is what has been raised in these matters,
whether Section 6-A meets the touchstone of Article 14 of the
Constitution.
56. Can classification be made creating a class of the
G government officers of the level of Joint Secretary and above
· level and certain officials in public sector undertakings for the .
purpose of inquiry/investigation into an offence alleged to have
been committed under the PC Act, 1988? Or, to put it
differently, can classification be made on the basis of the
H status/position of the public servant for the purpose of inquiry/
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 935
ORS. [R.M. LODHA, CJI.]
'investigation into the allegation of graft which amounts to an A
offence under the PC Act, 1988? Can the Legislature lay down
different principles for investigation/inquiry into the allegations
of corruption for the public servants who hold a particular
position? Is such classification founded on sound differentia?
To answer these questions, we should eschew the doctrinaire B
approach. Rather, we should test the validity of impugned
classification by broad considerations having regard to the
legislative policy relating to prevention of corruption enacted in
the PC Act, 1988 and the powers of inquiry/investigation under
the DSPE Act. C
57. The Constitution permits the State to determine, by the
process of classification, what should be regarded as a class
'for purposes of legislation and in relation to law enacted on a
particular subject. There is bound to be some degree of
inequality when there is segregation of one class from the other. D
However, such segregation must be rational and not artificial
or evasive. In other words, the classification must not only be
based on some qualities or characteristics, which are to be
found in all persons grouped together and not in others who are
left out but those qualities or characteristics must have a E
reasonable relation to the object of the legislation. Differentia
which is the basis of classification must be sound and must
have reasonable relation to the object of the legislation. If the
object itself is discriminatory, then explanation that classification
is reasonable having rational relation to the object sought to be F
achieved is immaterial.
58. It seems to us that classification which is made in
Section 6-A on the basis of status in the Government service
is not permissible under Article 14 as it defeats the purpose
of finding prima facie truth into the allegations of graft, which G
amount to an offence under the PC Act, 1988. Can there be
sound differentiation between corrupt public servants based on
their status? Surely not, because irrespective of their status or
position, corrupt ptiblic servants are corrupters of public power.
H
936 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 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. Based on the position or
status in service, no distinction can be made between public
servants against whom there are allegations amounting to an
B offence under the PC Act, 1988.
59. 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. It is difficult to justify
the classification which has been made in Section 6-A because
C the goal of law in the PC Act, 1988 is to meet corruption cases
with a very strong hand and all public servants are warned
through such a legislative measure that corrupt public servants
have to face very serious consequences. In the words of
Mathew, J. in Ambica Mills Ltd 72 , "The equal protection of the
D laws is a pledge of the protection of equal laws. But laws may
classify ...... A reasonable classification is one which includes
all who are similarly situated and none who are not". Mathew,
J., while explaining the meaning of the words, 'similarly situated'
stated that we must look beyond the classification 'to the
E purpose of the law. 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, it advances public mischief and
F protects the crime-doer. The provision thwarts an independent,
unhampered, unbiased, efficient and fearless inquiry I
investigation to track down the corrupt public servants.
60. The essence of police investigation is skilful inquiry and
collection of material and evidence in a manner by which the
G potential culpable individuals are not forewarned. The previous
approval from the Government necessarily required under
Section 6-A would result in indirectly putting to notice the
officers to be investigated before commencement of
investigation. Moreover, if the CBI is not even allowed to verify
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 937
ORS. [R.M. LODHA, CJI.]
complaints by preliminary enquiry, how can the case move A
forward? A preliminary enquiry is intended to ascertain whether
a prima facie case for investigation is made out or not. If CBI
is prevented from holding a preliminary enquiry, at the very
threshold, a fetter is put to enable the CBI to gather relevant
material. As a matter of fact, the CBI is not able to collect the B
material even to move the Governme.nt for the purpose of
obtaining previous approval from the Central Government.
61. 1t is important to bear in mind that as per the CBI
Manual, (Paragraph 9.10) a preliminary enquiry relating to C
allegations of bribery and corruption should be limited to the
scrutiny of records and interrogation of bare minimum persons
which being necessary to judge whether there is any substance
in the allegations which are being enquired into and whether
the case is worth pursuing further or not. Even this exercise of
scrutiny of records and gathering relevant information to find out D
whether the case is worth pursuing further or not is not possible.
In the criminal justice system, the inquiry and investigation into
an offence is the domain of the police. The very power of CBI
to enquire and investigate into the allegations of bribery and
corruption against a certain class of public servants and officials E
in public undertakings is subverted and im,)inged by Section
6-A.
62. The justification for having such classification is
founded principally on the statement made by the then Minister F
of Law and Justice that if no protection is to be given to the
officers, who take the decisions and make discretions, then
anybody can file a complaint and an inspector of the CBI or the
police can raid their houses any moment. If this elementary
protection is not given to the senior decision makers, they would G
not tender honest advice to political executives. Such senior
officers then may play safe and give non-committal advice
affecting the governance. The justification for classification in
Section 6-A is also put forth on the basis of the report of the
Joint Parliamentary Committee to which CVC Bill, 1999 was
H
938 SUPREME COURT REPORTS [2014) 6 S.C.R.
A referred particularly at the question relating to Clause 27
regarding amendment of the DSPE Act (the provision which
· is now Section 6-A). The Joint Parliamentary Committee, in this
regard noted as follows:
"The Committee note that many witnesses who appeared
B
before the Committee had expressed the need to protect
the bonafide actions at the decision making level. At
present there is no provision in the Bill for seeking prior
approval of the Commission or the head of the Department
etc. for registering a case against a person of the decision
c making level. As such, no protection is available to the
persons at the decision making level. In this regard, the
Committee note that earlier, the prior approval of the
Government was required in the form of a 'Single Directive'
which was set aside by the Supreme Court. The
D Committee feel that such a protection should be restored
in the same format which was there earlier and desire that
the power of giving prior approval for taking action against
a senior officer of the decision making level should be
vested with the Central Government by making appropriate
E provision in the Act. The Committee, therefore,
recommend that Clause 27 of the Bill accordingly
amended so as to insert a new section 6A to the DSPE
Act, 1946, to this effect."
F 63. As a matter of fact, the justification for Section 6-A
which has been put forth before us on behalf of the Central
Government was the justification for Single Directive 4.7(3)(i)
in Vineet Narain1 ~s well. However, the Court was unable to
persuade itself with the same. In Vineet Narain1 in respect of
G Single Directive 4. 7(3)(i), the Court said that every person
accused of committing the same offence is to be dealt with in
the same manner in accordance with law, which is equal in its
application to everyone. We are in agreement with the above
observation in Vineet Narain1, which, in our opinion, equally
applies to Section 6-A. In Vineet Narain1, this Court did not
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 939
ORS. [R.M. LODHA, CJI.]
accept the argument that the Single Directive is applicable only A
to certain class of officers 9bove the specified level who are
decision making-officers and a distinction can be made for them
for the purpose of investigation of an offence of which they are
accused. We are also clearly of the view that no distinction can
be made for certain class of officers specified in Section 6-A B
who are described as decision making officers for the purpose
of inquiry/investigation into an offence under the PC Act, 1988.
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. If there c
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. Where there
are allegations against a public servant which amount to an
offence under the PC Act, 1988, no factor pertaining to D
expertise of decision making is involved. Yet, Section 6-A
makes a distinction. It is this vice which reriders Section 6-A
violative of Article 14. Moreover, the result of the impugned
legislation is that the very group of persons, namely, high
ranking bureaucrats whose misdeeds and illegalities may have E
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. F
64. It is true that sub-Section (2) of Section 6-A has taken
care of observations of this Court in Vineet Narain1 insofar as
trap cases are concerned. It also takes care of the infirmity
pointed out by this Court that in the absence of any statutory G
requirement of prior permission or sanction for investigation, it
cannot be imposed as a condition precedent for initiation of
, investigation, but, Section 6-A continues to suffer from the other
two infirmities which this Court noted concerning Single
_Directive, viz.; (a) where inference is to be drawn that the H
940 SUPREME COURT REPORTS [2014] 6 S.C.R.
A decision must have been for corrupt motive: and direct evidence
is not there, the expertise to take decision whether to proceed '
or not in such cases should be with the CBI itself and not with
the Central Government and (b) in any event the final decision
to commence investigation into the offences must be of the CBI
B with the internal aid and advice and not of anybody else.
Section 6-A also suffers from the vice of classifying offenders
differently for treatment thereunder for inquiry and investigation
of offences, according to their status in life. Every person
accused of committing the same offence is to be dealt with in
c the same manner in accordance with law, which is equal in its
application to everyone.
65. Way back in 1993, the Central Government constituted
a Committee under the Chairmanship of the former Home
Secretary (Shri N.N. Vohra) to take stock of all available.
D information about the activities of the crime syndicatE!s/mafia
organizations, which had developed links with and were.being
permitted by Government functionaries and political
personalities. In para 14.3 of the report, the Committee has
observed that linkages of crime syndicate with senior
E Government functionaries or political leaders in the States or
at the Centre could have a destabilizing effect on the functioning
of the Government. The report paints a frightening picture of
criminal-bureaucratic-political nexus - a network of high level
corruption. The impugned provision puts this nexus in a position
F to block inquiry and investigation by CBI by conferring the
power of previous approval on the Central Government.
66. A class of Central Government employees has been
created in Section 6-A inasmuch as it offers protection to a
G class of the Government officers of the level of Joint Secretary
and above to whom DSPE Act applies but no such protection
is available to the officers of the same level, who are posted in
various States. This position is accepted by CBI. Mr. Sidharth
· Luthra, learned Additional Solicitor General placed before us
H the following questions and answers to clarify the legal position:
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 941
ORS. [RM. LODHA, CJI.]
"Question No.1 : Whether an officer of the public sector A
bank I public sector undertaking of Central
Govt. in the rank of Joint Secretary and
above while posting in the State and
alleged to have committed an offence
under P.C. Act, can be investigated by B
State Polfce or CBI?
Answer No.1 : Yes, both State Police and CBI have
jurisdiction under P.C. Act over such
officers. The jurisdiction of CBI is,
however, subject to Section 6(A) of DSPE c
Act and consent of the State Govt. u/s 6
of the DSPE Act, 1946.
Question No.2 : Whether an employee of All India Service
i.e. IPS, IAS and Indian Forest Services D
while posted in the State Govt. at the JS
level and above can claim protection
under 6(A)?
Answer No.2 : No, as the very wording of Section 6(A)
E
mentions only the employees of the
Central Govt.
Question No.3 : Whether in a Union Territory, the State
Police and the CBI will have concurrent
jurisdiction over employees of Central F
Govt. for PC Act offences?
Answer No.3 : Yes, both the State UT Police and CBI
have jurisdiction over Central Govt.
employees under P.C. Act. Section 6(A) G
of DSPE Act is operative for CBI for
officers of the level of JS and above.
Question No.4 : What will be the position regarding
employees of the Central Govt. in the
H
942 SUPREME COURT REPORTS [2014) 6 S.C.R.
A Allied I Central Civil Servi.ces such as
Indian Revenue Service, Postal Service
etc. Who are working in the territory of the
State but not posted in the State?
Answer No.4 ; Yes, both State Police and CBI have
B
jurisdiction under P .C. Act over such
officers. The jurisdiction of CBI is,
however, subject to Section 6(A) of DSPE
Act and consent of the State Govt. u/s 6
of the DSPE Act, 1946."
c
67. Can it be said that the classification is based on
· intelligible differentia when one set of bureaucrats of Joint
Secretary level and above who are working with the Central
Government are offered protection under Section 6-A while the
O same level of officers who are working in the States do not get
protection though both classes of these officers are accused
of an offence under PC Act, 1988 and inquiry I investigation
into such allegations is to be carried out. Our answer is in the
negative. The provision in Section 6-A, thus, impedes tracking
E down the corrupt senior bureaucrats as without previous
approval of the Central Government, the CBI cannot even hold
preliminary inquiry much less an investigation into the
allegations. The. protection in Section 6-A has propensity of
shielding the corrupt. The object of Section 6-A, that senior
F public servants of the level of Joint Secretary and above who
take policy decision must not be put to any harassment, side-
tracks the fundamental objective of the PC Act, 1988 to deal
with corruption and act against senior public servants. The CBI
is not able to proceed even to collect the material to unearth
G prima facie substance into the merits of allegations. Thus, the
object of Section 6-A itself is discriminatory. That being the
position, the discrimination cannot be justified on the ground
that there is a reasonable classification because it has rational
relation to the object sought to be achieved.
H 68. The signature tune in Vineet Narain1 is, "However high .
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 943
ORS. [R.M. LODHA, CJI.]
you may be, the law is above you." We reiterate the same. A
Section 6-A offends this signature tune and effectively Article
14.
69. Undoubtedly, every differentiation is not a
discrimination but at the same time, differentiation must be B
founded on pertinent and real differences as distinguished from
irrelevant and artificial ones. A simple physical grouping which
separates one category from the other without any rational
basis is not a sound or intelligible differentia. The separation
or segregation must have a systematic relation and rational C
basis,and the object of such segregation must not be
discriminatory. Every public servant against whom there is
reasonable suspicion of commis~ion of crime or there are
allegations of an offence under the PC Act, 1988 has to be
.treated equally and similarly under the law. Any distinction made
between them on the basis of their status or position in service D
·for the purposes of inquiry I investigation is nothing but an
artificial one and offends Article 14.
70. Office of public power cannot be the workshop of
personal gain. The probity in public life is of great importance. E
How can two public servants against whom there are
allegations of corruption or graft or bribe-taking or criminal
misconduct under the PC Act, 1988 can be made to be treated
differently because one happens to be a junior officer and the
other, a senior decision maker. F
71. Corruption is an enemy of nation and tracking down
corrupt public servant, howsoever high he may be, and
punishing such person is a necessary mandate under the PC
Act, 1988. The status or position of public servant does not
qualify such public servant from exemption .from equal G
treatment. The decision making power does not segregate
corrupt officers into two classes as they are common crime
doers and have to be tracked down by the same process of
inquiry and investigation.
H
944 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 72. It is argued on behalf of the Central Government that
now office memorandum (dated 26.09.2011) approving the
recommendations made by the Group of Ministers has been
issued which provides inter alia for quick consideration of the
request by the CBI for approval and also to give reasons for
B granting I rejecting sanction under Section 6-A. It is submitted
that delay in disposal of the requests by the CBI is now taken
care of and if there is denial of sanction order under Section
6-A, such order of the Central Government can be challenged
in a writ petition before the High Court. Such protection, it is
C submitted, is even recognized by United Nations in Article 30
of the UN Convention against corruption. This aspect has been
considered by this Court iri Manohar Lal Sharma4 to which we
shall refer appropriately a littl.e later.
73. The PC Act, 1988 is a special statute and its preamble
D shows that it has been enacted to consolidate and amend the
law reiating to the prevention of corruption and for the matters
connected therewith. It is intended to make the corruption laws
more effective by widening their coverage and by strengthening
the provisions. It came to be enacted because Prevention of
E Corruption Act, 194 7 as amended from time to time was
inadequate to deal with the offences of corruption effectively.
The new Act now seeks to provide for speedy trial of offences
punishable under the Act in public interest as the legislature had
become aware of corruption amongst the public servants.
F
74. Corruption corrodes the moral fabric of the society and
corruption by public servants not only leads to corrosion of the
moral fabric of the society but also harmful to the national
economy and national interest, as the persons occupying high
G posts in the Government by misusing their power due to
corruption can cause considerable damage to ihe national
economy, national interest and image of the country75 .
75. The PC Act, 1988 has also widened the scope of the
H 75. J. Jayalalitha v. Union of India & Anr.; [(1999) 5 SCC 138]
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 945
ORS. [R.M. LODHA, CJI.]
definition of the expression 'public servant' and incorporated A
· offences under Sections 161 to 165A of the Indian Penal Code
(IPC). By Lokpal and Lokayuktas Act, 2013 (Act 1 of 2014),
further amendments have been made therein. The penalties
relating to the offences under Sections 7, 8, 9, 12, 13 and 14
have been.enhanced by these amendments. B
75. 1 Section 7 makes taking gratification by a public
servant other than legal remuneration in respect of an official
act as an offence and provides penalties for such offence. The
expressions 'gratification' and 'legal remuneration' have been C
explained in clauses (b) and (c) of the Explanation appended
to Section 7. Taking gratification by corrupt or illegal means to
influence public servant is an offence under Section 8 while
under Section 9, taking gratification for exercise of personal
influence with a public servant is an offence. Section 10
provides for punishment for abetment by public servant of D
offences defined in Section 8 or 9. Section 11 provides for an
offence where a public servant obtains valuable thing without
consideration from person concerned in proceeding or business
transacted by such public servant. The punishment for abetment
of offences defined in Section 7 or 11 is provided in Section E
12.
75.2 Section 13 is a provision relating to criminal
misconduct by a public servant. It reads as follows:
F
"13. Criminal misconduct by a public servant.- (1) A public
servant is said to commit the offence of criminal
misconduct,-
(a) if he habitually accepts or obtains or agrees to
accept or attempts to obtain from any person for G
himself or for any other person any gratification
other than legal remuneration as a motive or reward
such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to
H
946 SUPREME COURT REPORTS [2014] 6 S.C.R.
A accept or attempts to obtain for himself or for any
other person, any valuable thing without
consideration or for a consideration which he
knows to be inadequate from any person whom he
knows to have been, or to be, or to be likely to be
B concerned in any proceeding or business
transacted or about to be transacted by him, or
having any connection with the officia~functions of
himself or of any public servant to whom he is
subordinate, or from any person whom he knows
c to be interested in or related to the person so
concerned; or
(c) if he dishonestly or fraudulently misappropriates
or otherwise converts for his own use any property
entrusted to him or under his control as a public
D servant or allows any other person so to do; or
(d) if he,-
(i) by corrupt or illegal means, obtains for himself
or for any other person any valuable thing or
E
pecuniary advantage; or
(ii) by abusing his position as a public servant,
obtains for himself or for any other person any
valuable thing or pecuniary advantage; or
F
(iii) while holding office as a public servant, obtains
for any person any valuable thing or pecuniary
advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or
G has, at any time during the period of his office, been in
possession for which the public servant cannot
satisfactorily account, of pecuniary resources or property
disproportionate to his known sources of income.
H Exp/anation.-For the purposes of this section, "known
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 947
ORS. [R.M. LODHA, CJI.]
sources of income" means income received from any A
lawful source and such receipt has been intimated in
accordance with the provisions of any law, rules or orders
for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct
B
shall be punishable with imprisonment for a term which
shall be not less than four years but which may extend to
ten years and shall also be liable to fine." •
75.3 Section 17 authorizes only certain level of police
officers to investigate the offences under the PC Act, 1988. An C
investigation into such offences by any other police officer can
be carried out only after having proper authorization from the
competent court or competent authority as provided therein.
75.4 Section 19 mandates that no Court shall take D
cognizance of an offence punishable under Sections 7, 10, 11,
13 and 15 alleged to have been corr.mitted by a public servant
except with the previous sanction as provided in that section.
Section 19 does not permit any court to take cognizance of an
offence punishable under Sections 7, 10, 11, 13 and 15 of the
E
PC Act, 1988 without previous sanction from the competent
authority where the offence has been committed by a public
servant who is holding the office and by misusing or abusing·
the powers of the office, he has committed the offence. Section
19, thus, provides to every public servant, irrespective of his
position in service, protection from frivolous and malicious
F
prosecution.
76. Ttie menace of corruption has been noticed by this
Court in Ram Singh 6 • The court has observed:
G
"Corruption, at the initial stages, was considered confined
to the bureaucracy which had the opportunities to deal with
a variety of State largesse in the form of contracts, licences
and grants. Even after the war the opportunities for
corruption continued as large amounts of government
H
948 SUPREME COURT REPORTS [2014) 6 S.C.R.
A surplus stores were required to be disposed of by the
public servants. As a consequence of the wars the
shortage of various goods necessitated the imposition of
controls and extensive schemes of post-war reconstruction
involving the disbursement of huge sums of money which
B lay in the control of the public servants giving them a wide .
discretion with the result of luring them to the glittering shine
of wealth and property."
77. This Court in Shobha Suresh Jumani 76 , took judicial
notice of the fact that because of the mad race of becoming
C rich and acquiring properties overnight or because of the
ostentatious or vulgar show of wealth by a few or because of
change of environment in the society by adoption of materialistic
approach, there is cancerous growth of corruption which has
affected the moral standards of the people and all forms of
D governmental administration.
78. The PC Act, 1988 enacts the legislative policy to meet
·corruption cases with a very strong hand. All public servants are
warned through such a legislative measure that corrupt public
E servants have to face very serious consequences 77 .
79. The two-Judge Bench of this Court observed in Sanjiv
Kumai' 8 that the case before them had brought to the fore the
rampant corruption in the corridors of politics and bureaucracy.
F 80. In a comparatively recent decision of this Court in
Subramanian Swamy 9 , this court was concerned with the
question whether a complaint can be filed by a citizen for
prosecuting the public servant for an offence under the PC Act,
1988 and whether the authority competent to sanction
G prosecution of a public servant for offences under that Act is
76. Shobha Suresh Jumani v. Appellate Tribunal, forfeited Property and Anr;
((2001) 5 sec 755]
77. State of A.P. v. V. Vasudeva Rao [(2004) 9 SCC 319]
H 78. Sanjiv Kumar v. State of Haryana and Ors. [(2005) 5 SCC 517].
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 949
ORS. [R.M. LODHA, CJI.]
required to take appropriate decision within the time specified A
in Clause (1)(15) of the directions contained in paragraph 58
of the judgment of this Court in Vineet Na.rain 1 and the
guidelines issued by the Central Government, Department of
Personnel and Training and the Central Vigilance Commission.
In the supplementing judgment, A.K. Ganguly, J. while B
concurring with the main judgment delivered by G.S. Singhvi,
J. observed:
"Today, corruption in our country not only poses a grave
danger to the concept of constitutional governance, it also
threatens the very foundation of the Indian democracy and C
the Rule of Law. The magnitude of corruption in our public
"life is incompatible with the concept of a socialist secular
democratic republic. It cannot be disputed that where
corruption begins all rights end. Corruption devalues human
rights, chokes development and undermines justice, liberty, D
equality, fraternity which are the core values in ,our
Preambular vision. Therefore, the duty of the court is that
any anti-corruption law has to be interpreted and worked
out in such a fashion as to strengthen the fight against
corruption .......... " E
Dealing with Section 19 of the PC Act, 1988 which bars a court
from taking cognizance of the cases of corruption against a
public servant under Sections 7, 10, 11, 13 and 15 of the PC
Act, 1988, unless the Central or the State Government, as the
F
case may be, has accorded sanction observed that this
provision virtually imposes fetters on private citizens and also
on prosecutors from approaching court against corrupt public
servants. Public servants are treated as a special class of
persons enjoying the said protection so that they can perform G
their duties without fear and favour and without threats of
malicious prosecution but the protection against malicious
prosecution which is extended in public interest cannot become
a shield to protect corrupt officials.
H
950 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 81. In Balakrishna Dattatrya Kumbhar11 , this Court
observed that corruption was not only a punishable offence but
,also, "undermines human rights, indirectly violating them, and
systematic corruption, is a human rights' violation in itself, as it
leads to systematic economic.crimes".
B 82. In R.A. Mehta 10 , the two-Judge Bench of this Court
made the following observations about corruption in the society:
"Corruption in a society is required to be detected and
eradicated at the earliest as it shakes ''the socio-
c economic-political system in an otherwise healthy, wealthy,
effective and vibrating society". Liberty cannot last long
unless the State is able to eradicate corruption from_ public
life. Corruption is a bigger threat than external threat to the
civil society as it corrodes the vitals of our polity and
D society. Corruption is instrumental in not proper
implementation and enforcement of policies adopted by
the Government. Thus, it is not merely a fringelssue but a
subject-matter of grave concern and requires to be
decisively dealt with."
E 83. Now we turn to the recent decision of this Court in
Manohar Lal Sharma4. A three-Judge Bench of this Court in
that case leaving the question of constitutional validity of
Section 6-A untouched and touching upon the question whether
the approval of the Central Government is necessary under
F Section 6-A in a matter where the inquiry/investigation into the
crime under the PC Act, 1988 is being monitored by the Court,
speaking through one of us (R.M. Lodha, J., as he then was)
on the inquiry into allegations of corruption observed that for
successful working of the democracy it was essential that public
G revenues are not defrauded and public servants do not indulge
in bribery and corruption and if they do, the allegations of
corruption are to be inquired into fairly, properly and promptly
and those who are guilty are brought to book. It was observed:
"Abuse of public office for private gain has grown in scope
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 951
ORS. [R.M. LODHA, CJI.]
and scale and hit the nation badly. Corruption reduces A
revenue; it slows down economic activity and holds back
economic growth. The biggest loss that may occur to the
nation due to corruption is loss of confidence in the
democracy and weakening of the rule of law."
B
83.1 Madan B. Lokur, J. in his supplementing judgment
dealt with Office Memorandurn dated 26th September, 2011.
The relevant extract of the Office Memorandum has been
quoted in paragraph 74 of the judgment, which reads:
"The undersigned is directed to state that the provision of C
section 6-A of the DSPE Act, 1946 provides for.
safeguarding senior public officials against undue and
vexatious harassment by the investigating agency. It had
been observed that the requests being made by the
investigating agency under the said provision were not D
being accorded due priority and the examination of such
proposals at times lacked objectivity. 1 he matter was under
consideration of the Group of Ministers constituted to
consider measures that can be taken by the Government
to tackle Corruption. E
The Government has accepted the following
recommendation of the Group of Ministers, as reflected in
para 25 of the First Report of the Group of Ministers, as
reflected in para 25 of the first report of the Group of F
Ministers:-
(a). The competent authority shall decide the matter
within three months of receipt of requests accompanied
with relevant documents.
G
(b). The competent authority will give a speaking
order, giving reasons for its decision.
(c) In the event a decision is taken to refuse
permission, the reasons thereof shall be put up to the next
H
952 SUPREME COURT REPORTS [2014] 6 S.C.R.
A higher authority for information within one week of taking
the decision.
{d) Since Section 6-A specifically covers officers of
the Central Government, above the rank of Joint Secretary,
the competent authority in these cases will be the Minister
B
in charge in the Government of India. In such cases,
i_ntimation of refusal to grant permission along with reasons
thereof, will have to be put up to the Prime Minister.
The above decision of the Government is brought to the
C notice of all Ministries/Departments for due adherence and strict
compliance."
83.2 The above office memorandum has not been found
to be efficacious in Manohar Lal Sharma 4 as it does not
D 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
E 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
F 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
G 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-
H pitched argument in justification of Section 6-A that senior
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 953
ORS. [R.M. LODHA, CJI.]
government officers may be unduly and unnecessarily harassed A
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 B
law and should not be tainted. 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.
c
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 D
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 E
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 F
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, CBI cannot do
so in view of Section 6-A. This anomaly in fact occurred in
G
Centre for PIL7 9 • 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,
79. Centre for PIL and Anr. v. Union of India and Anr.; [(2011) 4 SCC 1] H
954 SUPREME COURT REPORTS [2014) 6 S.C.R.
A 1988. Dealing with such anomaly in Centre for PIL79 , Madan
B. Lokur, J. in Manohar Lal Sharma 4 observed, "It is difficult to
understand the logic 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
B 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
c 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
D 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, in
more than one-third of the cases of requests for prosecution in
E 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
F 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 Watchdog 5 - to illustrate the few - show that differentia
in Section 6-A is directly destructive and runs counter to the
G 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
H against senior Government officials, it would cause incalculable
-- DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 955
ORS. [R.M. LODHA, CJI.]
harm not only to the officer in particular but to the department A
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, B
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 C
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."
D
52
89. In our opinion, P. Sirajuddin 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 I investigation of an offence
of which public servants are accused based on their status. E
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 seoior government officer,
no previous approval of the Central Government is required F
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, G
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
H
956 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 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
General has been noted with regard to inconsistency in the two
judgments of this Court in Vineet Narain1 and K. Veeraswami2 5 •
8
92. In K. Veeraswami2 5 , this Court in para 28 (pages 693-
694 of the report) observed:
"28 .... Section 6 is primarily concerned to see that
c 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
D prosecution for such offences. It is only to protect the
·honest public servants from frivolous and vexatious
prosecut!on. 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
E
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
F 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
G 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
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 957
ORS. [R.M. LODHA, CJI.]
prosecute public servant is taken away from the A
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 B
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 in paras 34 and 35 of C
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. Veeraswami2 5 • The Court went on to say:" .... In D
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 E
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 ..... "
F
94. The observations in K. Veeraswami2 5 , 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. G
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. Veeraswami2 5 •
H
958 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 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
B 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
c 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
o 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
E 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).
F 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.
G 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)
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 959
ORS. [R.M. LODHA, CJI.]
such officers as are appointed by the Central Government in A
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 B
that extent is also declared invalid.
99. Writ petitions are allowed as above ..
Oevika Gujral Writ petitions allowed.
c
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