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New Delhi, May 6: The Supreme Court today struck down a law that prevented the CBI from probing senior central bureaucrats for corruption without government sanction, saying it was discriminatory against lower-ranked officials.

A five-judge Constitution bench observed that the provision, which protected officials ranked joint secretary or above, virtually amounted to letting the accused (and their peers) decide whether they should be investigated.

“Corrupt public servants, whether high or low, are birds of the same feather,” said the bench, headed by Chief Justice R.M. Lodha and including Justices A.K. Patnaik, S.J. Mukhopadhaya, Dipak Misra and Ibrahim Kalifulla.

“All public servants are warned… that corrupt public servants have to face very serious consequences.”

The bench ruled unanimously that differentiating between “corrupt public servants based on their status” violates the fundamental right of equality, as enshrined in Article 14 of the Constitution.

The verdict came on a public interest litigation moved by BJP leader Subramanian Swamy and the Centre for Public Interest Litigation, challenging Section 6A of the Delhi Special Police Establishment (DSPE) Act.

Section 6A was introduced during National Democratic Alliance rule but was fiercely defended in the apex court by the United Progressive Alliance government. Three additional solicitors-general — L. Nageswara Rao, K.V. Vishwanthan and Siddharth Luthra — argued that the provision shielded officials from false complaints.

But the court rejected it. “It seems to us that classification… 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,” it said.

“Corruption is an enemy of nation” and tracking down and punishing corrupt public servants is a necessary mandate of the Prevention of Corruption Act, 1988, the court ruled. Some of the points it made:


The court noted that the “essence of police investigation is skilful inquiry and collection of evidence” quietly so that the accused are not “forewarned”. But the requirement of prior government approval leads to the accused being indirectly put on “notice”.

Govt influence

The need to take the Centre’s approval robs the CBI of “confidentiality and insulation… from political and bureaucratic control and influence”. Besides, such a process is vulnerable to “leaks and disclosures at every stage”.

“The provision thwarts an independent, unhampered, unbiased, efficient and fearless inquiry,” the court said.

Preliminary fetters

“If the CBI is not even allowed to verify complaints by a preliminary enquiry (without government sanction), how can the case move forward?” the court asked.

“A preliminary enquiry is intended to ascertain whether a prima facie case for investigation is made out or not. If the CBI is prevented from holding a preliminary enquiry, at the very threshold, a fetter is put” on the agency.

Scary nexus

The bench recalled how a 1993 committee headed by former home secretary N.N. Vohra had observed that “linkages of crime syndicate with senior government functionaries or political leaders… could have a destabilising effect on... the government”.

The court said: “The report paints a frightening picture of criminal-bureaucratic-political nexus — a network of high-level corruption.”

Section 6A put this “nexus in a position to block inquiry”.

Public mischief

The bench said a law looks to either eliminate a public mischief or achieve a public good, but Section 6A “advances public mischief and protects the crime-doer”.

“Corruption by public servants not only leads to corrosion of the moral fabric of the society but is also harmful to the national economy and national interest,” it said.

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