LexDR. SUBRAMANIAN SWAMY versus DIRECTOR, CENTERAL BUREAU OF INVESTIGATION & ANR.
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[2014] 6 S.C.R. 873 DR. SUBRAMANIAN SWAMY v. DIRECTOR, CENTERAL BUREAU OF INVESTIGATION & ANR. (Writ Petition (Civil) No. 38 of 1997) MAY 06, 2014. [R.M. LODHA CJI, A.K. PATNAIK, SUDHANSU JYOTI MUKHOPADHAYA, DIPAK MISRA AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.] DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946: A B c s. 6-A - Constitutional validity of - Requirement of approval of the Central Government to conduct inquiry or investigation where the allegations of commission of an D offence under the PC Act, 1988 relate to the employees of the Central Government of the level of Joint Secretary and above - Held: Classification which is made in s. 6-A on the basis of status in the Government service is not permissible under Article 14 as it defeats the purpose of finding prima E facie truth into the allegations of graft, which amount to an offence under the PC Act, 1988 - There cannot be sound differentiation between corrupt public servants based on their status because irrespective of their status or position, corrupt public servants are corrupters of public power - The F classification made in s. 6-A neither eliminates public mischief nor achieves some positive public good, rather it advances public mischief and protects the crime-doer - There is no rational basis to classify the two sets of public servants differently on the ground that one set of officers is decision G making officers and not the other set of officers - If there is an accusation of bribery, graft, illegal gratification or criminal misconduct against a public servant, then the status of offender is of no relevance - The result of the impugned 873 H 874 SUPREME COURT REPORTS [2014] 6 S.C.R. A legislation is that the very group of persons, namely, high ranking bureaucrats whose misdeeds and illegalities may have to be inquired into, would decide whether the CBI should even start an inquiry or investigation against them or not - There will be no c'onfidentiality and insulation of the B investigating agency from political and bureaucratic control and influence because the approval is to be taken from the Central Government which would involve leaks and disclosures at every stage - As a necessary corollary, the provision contained in s.26 (c) of the Act 45 of 2003 to that c extent is also declared invalid - Prevention of Corruption Act, 1988 - Constitution of India, 1950 - Article 14 - Central Vigilance Commission Act, 2003 - s.26(c). s. 6A - Protection to a class of the Government officers of the level of Joint Secretary and above - Reasonableness D of classification - Held: The classification is not based on intelligible differentia when one set of bureaucrats of Joint Secretary level and above who are working with the Central Government are offered protection u/s. 6-A while the same level of officers who are working in the States do not get E protection though both classes of these officers are accused of an offence under PC Act, 1988 and inquiry/investigation into such a/legations is to be carried out - The provision in s. 6-A, thus, impedes tracking down the corrupt senior bureaucrats as without previous approval of the Central F Government, the CBI cannot even hold preliminary inquiry much less an investigation into the a/legations - The protection in s. 6-A has propensity of shielding the corrupt - The object of s. 6-A, that senior public servants of the level of Joint Secretary and above who take policy decision must not G be put to any harassment, side-tracks the fundamental objective of the PC Act, 1988 to deal with corruption and act against senior public servants - Thus, the object of s. 6-A itself is discriminatory. H DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 875 ORS. CONSTITUTION OF IND/A, 1950: A Article 14 - Challenge to the constitutional validity of a law enacted by the legislature - Held: Court to keep in view that there is always a presumption of constitutionality of an enactment, and a clear tran,sgression of constitutional B principles must be shown - The two dimensions of Article 14 in its application to legislation and rendering legislation invalid are discrimination, based on an impermissible or invalid classification and excessive delegation of powers; conferment of uncanalised and unguided powers on the executive, whether in the form of delegated legislation or by way of C conferment of authority to pass administrative orders - If such
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