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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 38 OF 1997

Dr. Subramanian Swamy                                   ……  Petitioner  

Versus  

Director, Central Bureau of Investigation & Anr.   …… Respondents

WITH

WRIT PETITION (CIVIL) NO. 21 OF 2004

Centre for Public Interest Litigation                                 ……  Petitioner  

Versus  

Union of India    ……  Respondent

JUDGMENT

R.M. LODHA, CJI.  

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:

“Section 6-A. Approval of Central Government to conduct inquiry or  investigation.- (1) The Delhi Special Police Establishment shall not  conduct  any  inquiry  or  investigation  into  any  offence  alleged  to  have been committed under the Prevention of Corruption Act, 1988  

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(49  of  1988)  except  with  the  previous  approval  of  the  Central  Government where such allegation relates to-  

(a) the employees of the Central Government of the Level of  Joint Secretary and above; and

(b)  such  officers  as  are  appointed  by  the  Central   Government  in  corporations  established  by  or  under  any  Central  Act,  Government  companies,  societies  and  local  authorities owned or controlled by that Government.

(2) Notwithstanding anything contained in sub-section (1), 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 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  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.

Reference to the Constitution Bench

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3. On  February  4,  2005  when  these  petitions  came  up  for  

consideration, the Bench thought that these matters deserved 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   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 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 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   categories of civil  servants. The said directive was stated to have  been  issued  to  protect  decision-making-level   officers  from the  threat  and    ignominy    of    malicious  and   vexatious  inquiries/investigations  and  to give protection to officers at the  decision-making level and to relieve them of the anxiety from  the  likelihood  of  harassment for taking  honest decisions.   It   was  said that 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.

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, Section 6-A was  sought to be inserted providing   for   the   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 in  Vineet Narain case  and  till insertion of Section  6- A w.e.f. 12-9-2003,  there was no requirement  of seeking  previous  

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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  touchstone of Article 14 of the Constitution. Learned 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   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   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  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. The   very nexus of the criminal-bureaucrat-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   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 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   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   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 U.P. [(1991) 1 SCC 212], Ajay Hasia  v.  Khalid  Mujib  Sehravardi [(1981)  1  SCC  722]  and  Mardia  

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Chemicals  Ltd. v.  Union of  India [(2004)    4    SCC   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)  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   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   House   Rates   Control   Act,   1947   pertaining   to standard  rent   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  conclusion  that  the  said  provisions are arbitrary and unreasonable.

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   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   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  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  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 only if there is manifest  arbitrariness.   

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6. In  short,  the  moot  question  is  whether  arbitrariness  and  unreasonableness  or  manifest    arbitrariness    and  unreasonableness,   being   facets   of   Article   14   of   the  Constitution  are  available  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  the  conclusion  drawn  in  Vineet  Narain  case is  erroneous  that  the  Constitution  Bench decision  in  K. Veeraswami v.  Union of  India  [(1991) 3 SCC 655] is not an authority for the proposition that in  the    case    of    high    officials,    requirement    of    prior   permission/sanction    from   a    higher  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.

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

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 dignitaries. The necessity of monitoring the investigation  

by this Court is indicated in paragraph 1 of the judgment1, which reads:

“These  writ  petitions  under  Article  32  of  the  Constitution  of  India  brought in public interest, to begin with, did not 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  made  was  against  high  

1 Vineet Narain & Ors. v. Union of India & Anr.; [(1998) 1 SCC 226]

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dignitaries.  It  was not the only 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  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 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 by certain   individuals  claiming  to  represent  public  interest,  yet  as  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  proceedings  by  everyone else was shut out but 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  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 Narain1, Single Directive No.4.7(3), which 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 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 recommendations in  

respect  of  CBI  and Central  Vigilance  Commission  (CVC).  One of  such  

recommendations was to confer statutory status to CVC.  

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6. Initially,  the Government decided to put the 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  on  7.12.1998.  The  CVC  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 CVC Bill, 1998. The  

Lok Sabha 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 and, consequently, the CVC  

Bill, 1999 lapsed. The CVC Bill was 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.

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’)  by certain categories of  

public servants of the Central Government, corporations established by or  

under  any  Central  Act,  government  companies,  societies  and  local  

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authorities owned or controlled by the Central Government and for matters  

connected therewith or incidental thereto. Section 26 of the Act 45 of 2003  

provides for amendment of DSPE Act and clause (c) thereof enacts that  

after Section 6, Section 6-A shall be 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 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 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 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 amicus  

curiae expressed his concern regarding the attempt to restore the Single  

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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 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. 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 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 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

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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 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 whole of India and no high level  

corruption would be investigated or punished. He relies upon decision of  

this Court in Vineet Narain1.  He also relies upon the decision in I.R. Coelho2  

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.

13. According  to  learned  amicus  curiae, Section  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  Manohar  Lal  Sharma4 following  Vineet  Narain1,  

learned amicus curiae submits that trend of these judgments is to preserve  

the rule of law by insulating the CBI from executive influence which could  

derail and result in inaction in enforcing the criminal law against high level   

corruption.  Learned  amicus  curiae highlighted  that  there  was  no  2 I.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 SCC 1]. 4 Manohar Lal Sharma v. Principal Secretary & Ors.; [(2014) 2 SCC 532].

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requirement of previous approval as contained in the impugned provisions  

between 18.12.1997 (the date of Vineet Narain1 judgment striking down the  

Single Directive) and 11.9.2003 (when CVC 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-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  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, 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 witnesses. Such investigation is  

compromised by the impugned provision, viz., Section 6-A of the DSPE Act.  

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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 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 commencement of enquiry /  

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  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  the  N.N.  Vohra  Committee  report,  2G  

Spectrum case3 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. Row6 and D.S. Nakara7.

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. Union of India; [(1983) 1 SCC 305].

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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 under Article 21 are violated. In this regard, he has relied upon  

the  observations  made  by  this  Court  in  Vineet  Narain1,  Ram  Singh8,  

Subramanian Swamy9, R.A. Mehta10, Balakrishna Dattatrya Kumbhar11 and  

In re. Special Courts Bill, 197812.

17. Learned amicus curiae submits that Section 6-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  

Bank15 and Nergesh Meerza16.

18. It is vehemently contended by the learned  amicus curiae that  

the classification as contained in Section 6-A creating a privileged class of  

the government officers of the level of Joint 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  8 State of M.P. and Ors. v. Ram Singh; [(2000) 5 SCC 88]. 9 Subramanian Swamy v. Manmohan Singh and Anr.; [(2012) 3 SCC 64]. 10 State of Gujarat and Anr. v. Justice R.A. Mehta(Retd.) and Ors.; [(2013) 3 SCC 1]. 11 State of Maharashtra v. Balakrishna Dattatrya Kumbhar; [(2012) 12 SCC 384]. 12 Special Courts Bill, 1978, In re,; [(1979) 1 SCC 380]. 13 State of Kerala and Ors. v. Travancore Chemicals and Manufacturing Co. and Anr.; [(1998) 8 SCC  188]. 14 Krishna Mohan (P) Ltd. v. Municipal Corporation of Delhi and Ors.; [(2003) 7 SCC 151]. 15 District Registrar and Collector, Hyderabad and Anr. v. Canara Bank and Ors.; [(2005) 1 SCC 496]. 16 Air India v. Nergesh Meerza and Ors.; [(1981) 4 SCC 335].

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the DSPE Act and undermines the object of detecting and punishing high  

level corruption.  In this regard, learned amicus 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 argues  

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 achieved by the legislation, are not satisfied by  

Section 6-A.   A privileged  class  of  Central  Government  employees  has  

been created 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 / employees who are 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 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 Rao17.

Submissions of Mr. Prashant Bhushan for Centre for Public Interest  Litigation (CPIL-petitioner)

19. Mr. Prashant Bhushan, learned counsel for the petitioner in the  

connected writ petition filed by Centre for Public Interest Litigation (CPIL)  

17 Nagpur Improvement Trust and Anr. v. Vithal Rao and Ors.; [(1973) 1 SCC 500].

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has adopted the arguments of the learned amicus curiae. He submits that  

Section 6-A makes criminal 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  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.

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 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 regard, he  

has relied upon decisions of this Court in State of Karnataka18, L. Chandra  

18 State of Karnataka v. Union of India and Anr.; [(1977) 4 SCC 608].

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Kumar19,  Kuldip  Nayar20,  Madras  Bar  Association21,  K.T.  Plantation  (P)   

Ltd.22, G.C. Kanungo23, Indra Sawhney (2)24, and I.R. Coelho2.

21. Mr.  Gopal  Sankaranarayanan,  learned  counsel  for  the  

intervenor, also submits that there is an unreasonable classification among  

policemen and among the accused and, 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 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 rationale behind Section 6-

A of the DSPE Act can be seen in the reply to the debate in Parliament on  

the Central Vigilance 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 to exercise  

discretion and those who have to take vital decisions could become target  

of  frivolous  complaints  and  need  to  be  protected.  Therefore,  some  

19 L. Chandra Kumar v. Union of India and Ors.; [(1997) 3 SCC 261]. 20 Kuldip Nayar and Ors. v. Union of India and Ors.; [(2006) 7 SCC 1]. 21 Union of India v. R. Gandhi, President, Madras Bar Association; [(2010) 11 SCC 1]. 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].

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screening mechanism must be put into place whereby serious complaints  

would be investigated and frivolous complaints can be thrown out. If such  

protection  is  not  given  to  senior  decision  makers,  anyone  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,  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 that could be initiated against  senior  

officers  to  protect  them  from  harassment  and  to  enable  them  to  take  

decision without fear. In this regard, the legal principles enunciated in  K.  

Veeraswami25 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 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 harassment.  

24. Emphasizing  that  the  Central  Government  is  committed  to  

weeding out vice of corruption, learned Additional Solicitor General submits  

that requests for approval under Section 6-A are processed expeditiously  

after  the  Government  of  India  had  constituted  a  Group  of  Ministers  to  

25 K. Veeraswami v. Union of India and Ors.; [(1991) 3 SCC 655].

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consider certain measures that could be taken by Government to tackle  

corruption and 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  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. Royappa26 he argues that while proposing a new dimension of  

arbitrariness  as  an  anti-thesis  to  equality  in  Article  14,  the  Court  used  

arbitrariness to strike down administrative action and not as a ground to test  

legislations. He submits that in Maneka Gandhi27 the Court has not held that  

arbitrariness by itself is a ground for striking down legislations under Article  

14.  Ajay Hasia28, learned Additional Solicitor General contends, also does  

not make arbitrariness a ground to strike down legislation. Distinguishing  

Malpe  Vishwanath  Acharya29,  he  submits  that  this  Court  used  the  

classification test  to hold legislation to be arbitrary  and the provision of  

standard  rent  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  Ltd30.  He  vehemently  

contends that Courts cannot strike down legislations for being arbitrary and  

26 E.P. Royappa v. State of T.N. and Anr.; [(1974) 4 SCC 3] 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 SCC 1] 30 Mardia Chemicals Ltd. and Ors. v. Union of India and Ors.; [(2004) 4 SCC 311].

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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  

constitutional limitations, no law can be struck down on the ground that it is  

unreasonable  or  unjust.  In  this  regard,  he  relies  upon  Kesavananda  

Bharati31.  He  also  referred  to  In  re.  Special  Courts  Bill,  197812,  which  

explained the principles enshrined in Article 14. In support of principle that  

legislations can be declared invalid or unconstitutional only on two grounds:  

(a)  lack  of  legislative  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  

Thakur32 in support of the proposition that legislation cannot be 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 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  

31 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr.; [(1973) 4 SCC 225]. 32 Ashoka Kumar Thakur v. Union of India and Ors.; [(2008) 6 SCC 1].

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Court  in  In  re.  Natural  Resources  Allocation33,  McDowell34 and  Rakesh  

Kohli35. The decision of the US Supreme Court in  Heller36 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 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  Gandhi37,  

learned Additional Solicitor General argues that meaning and constituent  

elements of rule 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 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  

validity of Section 197 and held that the said provision was not violative of  

Article 14.  He also referred to Section 187 of Cr.P.C., Section 6 of the  

33 Natural Resources Allocation, In re, Special Reference No. 1 of 2012; [(2012) 10 SCC 1]. 34 State of A.P. and Ors.  v. McDowell & Co. and Ors.; [(1996) 3 SCC 709]. 35 State of M.P. v. Rakesh 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] 38 Matajog Dobey v. H. C. Bhari; [(1955) 2 SCR 925]  

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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 of Human  

Rights39  was cited by learned Additional Solicitor General wherein Section  

6  of  the  Armed  Forces  (Special  Provisions)  Act,  1958  was  held  

constitutional and Manhar Lal Bhogilal40 was cited wherein Section 187-A  

of  the  Sea  Customs  Act  was  held  valid.   Learned  Additional  Solicitor  

General has 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  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,  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 Organized Crimes Act, 2000 and Section 9 of Bihar  

Non-Government  Educational  Institution  (Taking  Over)  Act,  1988  to  39 Naga People’s Movement of Human Rights v. Union of India;[(1998) 2 SCC 109] 40 Manhar Lal Bhogilal Shah v. State of Maharashtra; [(1971) 2 SCC 119]

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demonstrate that there are large number of provisions where permission of  

the Government is required before taking cognizance or for institution of an  

offence.             

28. Learned Additional Solicitor General submits that 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 an intelligible differentia. As they take policy decisions, there is a  

need to protect them from frivolous inquiries and investigation so that 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 Dalmia41, Union of   

India42  and Re:  Special  Courts  Bill,  197812.    He  also  referred  to  the  

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 unbridled /  

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  

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 SCC 709]  

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Special Courts Bill,  197812,  N.B. Khare43,  Mafatlal  Industries44 and Sushil   

Kumar Sharma45.

30. Learned Additional  Solicitor General submits that conferment  

of power on high authority reduces the possibility of its abuse to minimum.  

In support  of  this  submission,  learned Additional  Solicitor  General  relies  

upon the decision of this Court in Maneka Gandhi27, Matajog Dubey38, V.C.  

Shukla46  and  V.C.Shukla  (IInd)47.   He  also  submits  that  absence  of  

guidelines can only make the exercise of power susceptible to challenge  

and not the legislation.  In this regard, Pannalal Binjraj48 and Jyoti Pershad49  

are cited by him.

Submissions of Mr. K.V. Viswanathan, ASG

31. Mr.  K.V.  Viswanathan,  learned  Additional  Solicitor  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  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  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 Sharma v. Union of India  & Ors.; [(2005) 6 SCC 281] 46 V.C. Shukla v. State through CBI; [1980 Supp SCC 92] 47 V.C. Shukla v. State (Delhi Administration); [1980 Supp SCC 249] 48 Pannalal Binjraj & Anr. etc., etc. v. Union of India & Ors.; [1957 SCR 233]  49 Jyoti Pershad v. Administrator for the Union Territory of Delhi  & Ors. [(1962) 2 SCR 125] 50 State of Bihar & Ors. v. Bihar Distillery Ltd. & Ors.;[(1997) 2 SCC 453]

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above the Joint Secretary level are bestowed with crucial decision making  

responsibilities.   Citing  Kripalu  Shankar51  and  the  speech  of  the  then  

Minister  of  Law and Justice,  he submits  that people  in decision making  

process need to be given an environment to take decisions without any  

undue extraneous pressure. He relies upon P. Sirajuddin52 to highlight the  

observations of this Court that lodging of FIR against a government official  

especially,  one  who  occupies  top  position  in  a  department,  even  if  

baseless, would do incalculable harm not only to the officer in particular, but  

to the department he belongs to, in general.       

33.  Mr. K.V. Viswanathan has highlighted that corruption has two  

aspects:  (a)  aspect  related  to  decision  making  –  abuse  of  position,  

pecuniary loss to the Government etc. and (b) aspect of illegal  pecuniary  

gain  – bribery  etc.   That  abuse of  position in order  to come within the  

mischief  of  corruption must  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  and  Abdulla  

Mohammed Pagarkar56.

51 State of Bihar & Ors. v. Kripalu Shankar & Ors.; [(1987) 3 SCC 34] 52 P. Sirajuddin, etc. v. State of Madras, etc.; [(1970) 1 SCC 595] 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. State of A.P.; [(1996) 10 SCC 193]  56 Abdulla Mohammed Pagarkar v. State (UT of Goa, Daman & Diu); [(1980) 3 SCC 110]

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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 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 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 Somabhai58.  He also referred to Section 340 of  Cr.P.C. which  

allows the 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 Marwah59.

36. Citing  Manohar  Lal  Sharma4,  learned  Additional  Solicitor  

General submits that even in a court monitored investigation, the concerned  

officer could approach the concerned court for an opportunity to be heard.  

Moreover,  in  Manohar  Lal  Sharma4, 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  

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 370]

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to  give  reasons  for  granting/rejecting  sanction  under  Section  6-A.   He  

submits 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.     

Principles applicable to Article 14

37. Article 14 reads:

“14. Equality before law.—The State shall  not deny to any  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  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  

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 equality  

and equal protection of laws.  The provisions of Article 14 have engaged  

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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 this Court in  Chiranjit Lal Chowdhuri60, F.N. Balsara61, Anwar  

Ali Sarkar62, Kathi Raning Rawat63, Lachmandas Kewalram Ahuja64, Syed  

Qasim Razvi65, Habeeb Mohamed66, Kedar Nath Bajoria67 and innovated to  

even associate the members of this Court to contribute their  V.M. Syed  

Mohammad &  Company68.     The  most  of  the  above  decisions  were  

considered  in  Budhan Choudhry69.   This Court exposited the ambit and  

scope of Article 14 in  Budhan Choudhry69 as follows:

“It  is  now  well-established  that  while  article  14  forbids  class  legislation,  it  does  not  forbid  reasonable  classification  for  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 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 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.”

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] 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] 69 Budhan Choudhry  & Ors. v. State of Bihar [(1955) 1 SCR 1045]

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40. In  Ram  Krishna  Dalmia41,  the  Constitution  Bench  of  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  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 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 people, that its laws  are directed to problems made manifest by experience and that its  discriminations are based on adequate grounds;

(d)  that the legislature is free to recognise degrees of harm and  may  confine  its  restrictions  to  those  cases  where  the  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, 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, 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  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 court when it is  

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called upon to adjudge the constitutionality of any particular law attacked  

as discriminatory and violative of the equal protection of laws.

42. Having culled out the above principles, the Constitution 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:

“(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 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  the  object  sought  to  be  achieved  by  the  statute,  no  matter  whether  the  provisions of the statute are intended to apply only to a particular  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 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 the face of it or  be  deducible  from the  surrounding  circumstances,  or  matters  of  common knowledge. In such 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 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  Government to make the selection or classification but will go on to  

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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 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 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.

(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 to apply but may at the same  time lay down a policy or principle for the guidance of the exercise  of discretion by the Government in the matter of such selection or  classification.

(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 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  the  selection or classification does not proceed on or follow such policy  or principle, then in such a case the executive action but not the  statute should be condemned as unconstitutional.”

43. In  Vithal  Rao17,  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 a reasonable classification  

for  the  purpose of  legislation  and 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 question. The  

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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 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 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  Budhan Choudhry69,  Ram  

Krishna Dalmia41,  C.I.  Emden70,  Kangsari  Haldar71,   Jyoti  Pershad49 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:

“(1) xxx    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 territory to attain  particular  ends in   giving effect to its policies, and it  must possess for that purpose  large powers of distinguishing and classifying persons or things to  be subjected to such laws.

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]

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(3)  The  constitutional  command  to  the  State  to  afford  equal  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 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 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  all  persons  similarly  circumstanced  shall  be  treated alike both in  privileges conferred and liabilities  imposed.  Equal laws 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  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 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  basis and does not mean  herding together of certain persons and classes arbitrarily.

(6) The law can make and set apart the classes according to the  needs  and  exigencies  of  the  society  and  as  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 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, (1) that the classification must be founded on an  intelligible  differentia  which distinguishes those that  are grouped  

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together  from  others  and  (2)  that  that  differentia  must  have  a  rational relation to the object sought to be achieved by the Act.  

(8) The differentia which is the basis of the classification 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 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  of  legislation,  provided  such classification is not arbitrary in the sense above mentioned.

(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 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 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 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  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  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  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   constitutionality.

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(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 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 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.”

45. In  Nergesh  Meerza16,  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 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  14  of  our  

Constitution, this Court referred to  Anwar Ali Sarkar62,  and observed that  

the due process clause in the American 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.”

73 A.S. Krishna  v. State of Madras; [1957 S.C.R. 399]

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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:

“Thus  the  fundamental  principle  is  that  Article  14  forbids  class  legislation but permits reasonable classification for the purpose of  legislation  which  classification  must  satisfy  the  twin  tests  of  classification  being  founded  on  an  intelligible  differentia  which  distinguishes  persons  or  things  that  are  grouped  together  from  those that are left out of the group and that differentia must have a   rational nexus to the object sought to be achieved by the statute in   question.”

47. In E.P. Royappa26, it has been held by this Court that 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 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 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.”

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  

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a  presumption  of  constitutionality  of  an  enactment,  and  a  clear  

transgression of constitutional principles 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 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  

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  

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 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.

Consideration

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49. Several objections have been raised against this provision in  

the context of Article 14.  First, we shall consider the challenge against the  

validity  of  classification  which  Section  6-A(1)  makes  and  the  lack  of  

relationship between the basis of that classification and the object which it  

seeks to achieve.           

50. The impugned provision, viz., Section 6-A came to be enacted  

after the decision of this Court in Vineet Narain1.  It is 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:

“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  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 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 xxx xxx

(iii)  xxx xxx xxx

(iv) xxx xxx xxx.”

51. The above provision contained in Single Directive 4.7(3)(i) was  

sought to be justified by the learned Attorney General in Vineet Narain1 on  

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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 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 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:  

“In the past several years, there has been progressive increase in  allegations of corruption involving 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  investigating  agencies concerned are subject to  extraneous pressures and have been indulging 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.”

53. The Court then discussed the earlier decisions of this Court in  

J.A.C.  Saldanha74 and  K.  Veeraswami25 and  also  the  provisions  of  the  

DSPE Act and held that: “Powers of investigation which are governed by  

the statutory  provisions  and they cannot  be  curtailed  by  any executive  

instruction.”  Having said that, this Court stated that the law did not classify  

74 State of Bihar & Anr.  v. J.A.C. Saldanha & Ors.; [(1980) 1 SCC 554]

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offenders  differently  for  treatment  thereunder,  including  investigation  of  

offences  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, 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  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 to be drawn  dependent  on  the  decision-making  process,  there  is  no  rational  basis to classify them differently. In other words, if 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 irrelevant. It is for this reason that it was conceded that  such cases, i.e.,  of bribery, including trap cases, are outside the  scope of  the 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 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  have,  therefore,  no  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 assets being covered by the Single  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 to prove directly any illegal   gain to the decision-maker. Those are cases in which the inference  

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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  is,  therefore,  an  area  where  the  opinion  of  persons  with  requisite   expertise 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 or the 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 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,  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.”

54. This  Court,  accordingly,  declared  Single  Directive  4.7(3)(i)  

being invalid.

55. Section  6-A  replicates  Single  Directive  4.7(3)(i),  which was  

struck down by this Court.  The only change is that executive instruction is  

replaced by the legislation.  Now, insofar as the vice that was pointed out  

by  this  Court  that  powers  of  investigation  which  are  governed  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 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.  

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56. Can classification be made creating a class of the 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 status/position  

of  the  public  servant  for  the  purpose  of  inquiry/investigation  into  the  

allegation of graft which amounts to an 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  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.

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.  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   

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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.   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 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 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 public servants are 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 to an 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  

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in Section 6-A 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.  In the words of Mathew, J. in  Ambica  

Mills Ltd.72, “The equal protection of the 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 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  

protects  the  crime-doer.   The  provision  thwarts  an  independent,  

unhampered, unbiased, efficient and fearless inquiry / 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  

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  

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allowed  to  verify  complaints  by  preliminary  enquiry,  how can the  case  

move 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  material  even to  move  the  Government  for  the  

purpose of obtaining previous approval from the Central Government.   

61. It  is  important to bear in mind that as per the CBI Manual,  

(Paragraph 9.10) a preliminary enquiry relating to 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 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  in  

public undertakings is  subverted and impinged by Section 6-A.

62. The  justification  for  having  such  classification  is  founded  

principally on the statement made by the then Minister of Law and Justice  

that if no protection is to be given to the officers, who take the decisions and  

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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 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 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  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 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 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  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.”

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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 as  well.  

However, the Court was unable to persuade itself with the same.  In Vineet  

Narain1 in respect of 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 accept the argument that the Single Directive is  

applicable only to certain class of 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. We are  

also clearly of the view that no distinction can be made for certain class of  

officers  specified  in Section 6-A 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 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  

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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   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 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.  

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 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 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  with  the  

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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 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 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. In para 14.3 of the report, the Committee has observed that  

linkages  of  crime  syndicate  with  senior  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 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 class of the Government  

officers  of  the  level  of  Joint  Secretary  and  above  to  whom DSPE Act  

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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 the  

following questions and answers to clarify the legal position:  

“Question  No.1  :    Whether  an officer  of  the  public  sector  bank / 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  State  Police 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  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  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)  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 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) of  DSPE Act is operative for CBI for officers of  the level of JS and above.

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Question No.4 : What  will  be  the  position  regarding  employees of the Central Govt. in the Allied  /  Central  Civil  Services   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  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.”

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 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  /  investigation  into  such  

allegations  is  to  be  carried  out.   Our  answer  is  in  the  negative.  The  

provision in Section 6-A, thus, impedes tracking 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 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  

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not  able  to  proceed even to  collect  the material  to  unearth  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.  

68. The signature tune in Vineet Narain1 is, “However high you may  

be, the law is above you.”  We reiterate the same. 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  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  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 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 /  

investigation is nothing but an artificial one and offends Article 14.  

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70. Office  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 to be  

treated differently because one happens to be a junior officer and the other,  

a senior decision maker.      

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 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.

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  granting  /  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 submitted, is even recognized by United  

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Nations in Article 30 of the UN Convention against corruption. This aspect  

has been considered by this Court in  Manohar Lal Sharma4 to which we  

shall refer appropriately a little later.   

73. 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  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 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.   

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  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 country75.  

75. The PC Act, 1988 has also widened the scope of the definition  

of the expression ‘public servant’ and incorporated offences under Sections  75 J. Jayalalitha v. Union of India & Anr.; [(1999) 5 SCC 138]

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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.

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 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 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 12.  

75.2 Section 13 is a provision relating to criminal misconduct by a  

public servant. It reads as follows:

“13. Criminal  misconduct  by  a  public  servant.-  (1)  A  public  servant is said to commit the offence of criminal misconduct,-

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(a) if he habitually accepts or obtains or agrees to accept or  attempts to  obtain  from any person for  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 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 concerned  in  any proceeding  or  business  transacted  or  about  to  be  transacted by him, or having any connection with the official  functions of himself or of any public servant to whom he is  subordinate,  or  from  any  person  whom he  knows  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 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 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

(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 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.

Explanation.-For the purposes of this section, "known sources of  income" means income received from any 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 shall  be  punishable with imprisonment for a term which shall  be not less  

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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 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 cognizance of an  

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  

cognizance of an offence punishable under Sections 7, 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  position  in  service,  protection  from  frivolous  and  

malicious prosecution.

76. The menace of corruption has been noticed by this Court in  

Ram Singh8.  The court has observed:

“Corruption, at the initial  stages, was considered confined to the  bureaucracy which had the opportunities to deal with a variety of  

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State largesse in the form of contracts, licences and grants. Even  after  the  war the  opportunities  for  corruption  continued as large  amounts  of  government  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 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 Jumani76, took judicial notice of  

the fact  that  because of  the mad race  of  becoming 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  

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  servants have to  

face very serious consequences.77  

79. The two-Judge Bench of this Court observed in Sanjiv Kumar78  

that the case before them had brought to the fore the rampant corruption in  

the corridors of politics and bureaucracy.  

76 Shobha Suresh Jumani v. Appellate Tribunal, forfeited Property and Anr; [(2001) 5 SCC 755] 77 State of A.P. v. V. Vasudeva Rao [(2004) 9 SCC 319] 78 Sanjiv Kumar v. State of Haryana and Ors. [(2005) 5 SCC 517]

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80. In  a  comparatively  recent  decision  of  this  Court  in  

Subramanian Swamy9, 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  prosecution of  a  public  servant  for  offences  under  that  Act  is  

required to take appropriate decision within the time specified in Clause (I)

(15) of the directions contained in paragraph 58 of the judgment of this  

Court  in  Vineet  Narain1 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  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  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, 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……….”  

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 case may be, has accorded sanction observed  

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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 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.

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”.  

82. In R.A. Mehta10, 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-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  society.  Corruption  is  instrumental  in  not  proper  implementation  and  enforcement  of  policies  adopted  by  the  Government.  Thus,  it  is  not merely a fringe issue but a subject- matter of grave concern and requires to be decisively dealt with.”

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  

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question of constitutional  validity  of Section 6-A untouched and touching  

upon the  question  whether  the  approval  of  the  Central  Government  is  

necessary under 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 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 and  scale  and  hit  the  nation  badly.   Corruption  reduces  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.”

83.1 Madan B. Lokur, J. in his supplementing judgment dealt with  

Office Memorandum 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  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 being accorded due priority and the examination  of  such  proposals  at   times  lacked  objectivity.  The  matter  was  under  consideration  of  the  Group  of  Ministers  constituted  to  

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consider measures that can be taken by the Government to tackle  Corruption.

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 Ministers:-

       (a).   The competent authority  shall  decide the  matter  within  three months  of  receipt  of  requests  accompanied   with   relevant documents.

       (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  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  in  charge  in  the Government of India.  In such cases, intimation 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 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  Sharma4 as  it  does  not  effectively  prevent  

possible  misuse of  law.   There is  no guarantee that  the time schedule  

prescribed in  the office  memorandum shall  be strictly  followed.   In any  

case,  what  can  CBI  do  if  the  time  schedule  provided  in  the  office  

memorandum is not maintained.  Even otherwise, office memorandum is  

not of much help in adjudging the constitutional validity of Section 6-A.  

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84. Learned  amicus  curiae highlighted  that  there  was  no  

requirement of previous approval as contained in the impugned provisions  

between 18.12.1997 (the date of Vineet Narain1 judgment striking down the  

Single  Directive)  and 11.9.2003 (when Act 45 of  2003 came into force)  

except  the  period  between  25.8.1998  and  27.10.1998  when  the  CVC  

Ordinance, 1998 was in force and till the deletions by the CVC Amendment  

Ordinance, 1998. It is not the stand of the Central Government before us  

nor any material  is placed on record by it to suggest even remotely that  

during the period when the Single Directive was not in operation or until  

Section 6-A was brought on the statute book,  CBI harassed any senior  

government officer or investigated frivolous and vexatious complaints. The  

high-pitched argument in justification of Section 6-A that senior government  

officers  may  be  unduly  and  unnecessarily  harassed  on  frivolous  and  

vexatious complaints, therefore, does not hold water.  

85. Criminal  justice system mandates that any investigation into  

the crime should be fair, in accordance with law and should not be tainted.  

It is equally important that interested or influential persons are not able to  

misdirect or highjack the investigation so as to throttle a fair investigation  

resulting in the offenders escaping the punitive course of law.  These are  

important  facets  of  rule  of  law.   Breach of  rule  of  law,  in  our  opinion,  

amounts to negation of equality under Article 14.  Section 6-A fails in the  

context of these facets of Article 14.  The argument of Mr. L. Nageswara  

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Rao  that  rule  of  law  is  not  above  law  and  cannot  be  a  ground  for  

invalidating legislations overlooks the well settled position that rule of law  

is a facet of equality under Article 14 and breach of rule of law amounts to  

breach of equality under Article 14 and, therefore, breach of rule of law  

may be a ground for invalidating the legislation being in negation of Article  

14.  

86. Section 156 of the Cr.P.C. enables any officer in charge of a  

police  station  to  investigate  a  cognizable  offence.  Insofar  as  non-

cognizable offence is concerned, a police officer by virtue of Section 155 of  

Cr.P.C.  can  investigate  it  after  obtaining  appropriate  order  from  the  

Magistrate  having  power  to  try  such case or  commit  the  case  for  trial  

regardless of the status of the officer concerned.  The scheme of Section  

155 and Section 156 Cr.P.C. indicates that the local police may investigate  

a  senior  Government  officer  without  previous  approval  of  the  Central  

Government.  However, CBI cannot do so in view of Section 6-A.  This  

anomaly in fact occurred in Centre for PIL79.  That was a matter in which  

investigations  were  conducted  by  the  local  police  in  respect  of  senior  

Government official without any previous approval and a challan filed in the  

court  of  Special  Judge  dealing  with  offences  under  the  PC Act,  1988.  

Dealing  with  such anomaly  in  Centre  for  PIL79,  Madan B.  Lokur,  J.  in  

Manohar  Lal  Sharma4 observed,  “It  is  difficult  to  understand  the  logic  

79  Centre for PIL and Anr. v. Union of India and Anr.; [(2011) 4 SCC 1]  

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behind  such  a  dichotomy  unless  it  is  assumed   that   frivolous   and  

vexatious  complaints  are  made  only  when the  CBI  is  the  investigating  

agency and that it is only CBI that is capable of harassing  or  victimizing  a  

senior Government official while the local police of  the  State  Government  

does not entertain frivolous and vexatious complaints and is not capable  of  

harassing or victimizing a senior government official.  No such assumption  

can be made.”    The above clearly indicates that Section 6-A has brought  

an  anomalous  situation  and  the  very  object  of  the  provision  to  give  

protection to certain officers  (Joint  Secretary  and above)  in  the Central  

Government has been rendered discriminatory and violative of Article 14.

87. It is pertinent to notice that in Subramanian Swamy9 this Court  

noted  that  as  per  supplementary  written  submissions  tendered  by  the  

learned  Attorney  General,  126  cases  were  awaiting  sanction  for  

prosecution from the Central  Government  for  periods  ranging from one  

year  to  few months.  Moreover,  in  more  than one-third  of  the cases  of  

requests  for  prosecution  in  corruption  cases  against  public  servants,  

sanctions have not been accorded.  Whether an enactment providing for  

special procedure for a certain class of persons is or is not discriminatory  

and  violative  of  Article  14  must  be  determined  in  its  own  context.  A  

practical assessment of the operation of the law in particular circumstances  

is necessary and the court can take judicial  notice of existing conditions  

from time to time.  The scenario noted in  Subramanian Swamy9 and the  

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facts in Telecom Watchdog5 - to illustrate the few – show that differentia in  

Section  6-A  is  directly  destructive  and  runs  counter  to  the  object  and  

reason of the PC Act, 1988. It also undermines the object of detecting and  

punishing high level corruption.

88. Mr. K.V. Viswanathan, learned Additional Solicitor General has  

strongly relied upon the observations made by this Court in P. Sirajuddin52  

that if baseless allegations are made against senior Government officials, it  

would cause  incalculable  harm  not only to the officer in particular but to  

the  department  that  he  belonged to, in general. He, particularly, referred  

to the following observations in  P. Sirajuddin52 (para 17, page 601 of the  

report):  

“………..Before a public servant, whatever be his status, is publicly  charged  with  acts  of   dishonesty   which   amount   to   serious  misdemeanour  or misconduct of the type alleged in this case and  a  first  information  is  lodged  against  him,  there  must  be  some  suitable  preliminary  enquiry into the allegations by a responsible   officer. The lodging of  such  a  report against a person, specially   one  who  like  the  appellant  occupied  the   top   position   in   a  department,  even  if  baseless,  would  do incalculable harm not   only  to  the  officer  in   particular   but   to   the  department  he  belonged to, in general.”

89. In our opinion, P. Sirajuddin52 also emphasizes equality before  

law.   This  decision,  in  our opinion,  cannot be read as laying down the  

proposition that the distinction can be made for the purposes of inquiry /  

investigation of an offence of which public servants are accused based on  

their status.

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90. It  is  pertinent  to  notice  that  in  Manohar  Lal  Sharma4,  the  

learned Attorney General made a concession to the effect that in the event  

of  CBI  conducting  an  inquiry,  as  opposed  to  an  investigation  into  the  

conduct of a senior government officer, no previous approval of the Central  

Government is required since the inquiry does not have the same adverse  

connotation that an investigation has.  To that extent, Section 6-A, as it is,  

does not survive.  Insofar as investigation is concerned, an investigation  

into  a  crime  may  have  some  adverse  impact  but  where  there  are  

allegations of an offence under the PC Act, 1988 against a public servant,  

whether  high  or  low,  whether  decision-maker  or  not,  an  independent  

investigation into such allegations is of utmost importance and unearthing  

the truth is the goal.  The aim and object of investigation is ultimately to  

search for truth and any law that impedes that object may not stand the test  

of Article 14.

91. In the referral order, the contention of learned Solicitor General  

has been noted with regard to inconsistency in the two judgments of this  

Court in Vineet Narain1 and K. Veeraswami25.

92. In  K. Veeraswami25, this Court in para 28 (pages 693-694 of  

the report) observed:

“28. … Section 6 is primarily concerned to see that prosecution for  the specified offences shall not commence without the sanction of  a  competent  authority.  That  does  not  mean  that  the  Act  was  intended to condone the offence of bribery and corruption by public  

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servant. Nor it was meant to afford protection to public servant from  criminal  prosecution  for  such  offences.  It  is  only  to  protect  the  honest  public  servants from frivolous and vexatious prosecution.  The  competent  authority  has  to  examine  independently  and  impartially the material on record to form his own opinion whether  the  offence  alleged  is  frivolous  or  vexatious.  The  competent  authority may refuse sanction for prosecution if the offence alleged  has no material to support or it is frivolous or intended to harass  the honest  officer.  But he cannot  refuse to  grant  sanction  if  the  material  collected  has  made out  the  commission  of  the  offence  alleged  against  the  public  servant.  Indeed  he  is  duty-bound  to  grant sanction if the material collected lend credence to the offence  complained of. There seems to be another reason for taking away  the discretion  of  the investigating  agency to prosecute or  not  to  prosecute a public servant. When a public servant is prosecuted  for an offence which challenges his honesty and integrity, the issue  in such a case is not only between the prosecutor and the offender,   but the State is also vitally concerned with it as it affects the morale  of public servants and also the administrative interest of the State.  The discretion to prosecute public servant is taken away from the  prosecuting  agency  and  is  vested  in  the  authority  which  is  competent to remove the public servant. The authority competent  to remove the public servant would be in a better position than the  prosecuting  agency  to  assess  the  material  collected  in  a  dispassionate  and  reasonable  manner  and  determine  whether  sanction for prosecution of a public servant deserves to be granted  or not.”

93. In Vineet Narain1, the above observations in K. Veeraswami25  

have been considered in paras 34 and 35 of the report (pages 259-260)  

and the three-Judge Bench held that the position of Judges of High Courts  

and the Supreme Court,  who are constitutional  functionaries,  is  distinct,  

and the independence of  judiciary,  keeping it  free from any extraneous  

influence, including that from executive, is the rationale of the decision in K.  

Veeraswami25. The Court went on to say: “…. In strict terms the Prevention  

of Corruption Act, 1946 could not be applied to the superior Judges and,  

therefore,  while bringing those Judges within the purview of the Act yet  

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maintaining the independence of judiciary, this guideline was issued as a  

direction by the Court.  The feature of  independence of  judiciary  has no  

application to the officers covered by the Single Directive.  The need for  

independence of judiciary from the executive influence does not arise in the  

case of officers belonging to the executive…..”

94. The observations in  K. Veeraswami25,  as noted above, were  

found to be confined to the Judges of the High Courts and the Supreme  

Court, who are constitutional functionaries, and their position being distinct  

and different from the Government officers. In our opinion, the Constitution  

Bench decision in K. Veeraswami25 has no application to the senior public  

servants  specified  in  Section 6-A.  We  have,  therefore,  no hesitation  in  

holding that the conclusion reached in para 34 in  Vineet  Narain1,  in  no  

manner, can be said to be inconsistent with the findings recorded in para  

28 of K. Veeraswami25.

95. Various provisions under different statutes were referred to by  

Mr.  L. Nageswara Rao where permission of  the government is  required  

before taking cognizance or for institution of  an offence. Section 197 of  

Cr.P.C. was also referred to, which provides for protection to Judges and  

public servants from prosecution except with the previous sanction by the  

competent authority. It may be immediately stated that there is no similarity  

between the  impugned  provision  in  Section  6-A  of  the  DSPE Act  and  

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Section  197  of  Cr.P.C.  Moreover,  where  challenge  is  laid  to  the  

constitutionality  of  a  legislation  on  the  bedrock  or  touchstone  of  

classification, it has to be determined in each case by applying well-settled  

two tests: (i) that classification is founded on intelligible differentia and (ii)   

that differentia has a rational relation with the object sought to be achieved  

by the legislation.  Each case has to be examined independently  in  the  

context of Article 14 and not by applying any general rule.

96. A feeble attempt was made by Mr. K.V. Viswanathan, learned  

Additional Solicitor General that Section 6-A must at least be saved for the  

purposes of Section 13(1)(d)(ii) and (iii) of the PC Act, 1988. In our opinion,  

Section 6-A does not satisfy the well-settled tests in the context of Article  

14 and is not capable of severance for the purposes of Section 13(1)(d)(ii)  

and (iii).  

97. Having  considered  the  impugned  provision  contained  in  

Section 6-A and for the reasons indicated above, we do not think that it is  

necessary  to  consider  the  other  objections  challenging  the  impugned  

provision in the context of Article 14.  

98. In view of our foregoing discussion, we hold that Section 6-

A(1), which requires approval of the Central Government to conduct any  

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inquiry or investigation into any offence alleged to have been committed  

under the PC Act, 1988 where such allegation relates to (a) the employees  

of the Central Government of the level of Joint Secretary and above and (b)  

such officers as are appointed by the Central Government in corporations  

established by or under any Central Act, government companies, societies  

and local authorities owned or controlled by the Government, is invalid and  

violative  of  Article  14 of  the Constitution.  As a necessary corollary,  the  

provision contained in Section 26 (c) of the Act 45 of 2003 to that extent is  

also declared invalid.

99. Writ petitions are allowed as above.  

.…...………..……………………...CJI. (R.M. Lodha)  

.…...………..……………………...J. (A.K. Patnaik)

.…...………..……………………...J.      (Sudhansu Jyoti Mukhopadhaya)

.…...………..……………………...J. (Dipak Misra)

.…...………..……………………...J.  (Fakkir Mohamed Ibrahim Kalifulla)

NEW DELHI MAY 06, 2014.

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