Can the Legislature lay down different principles for investigation/inquiry into the allegations of corruption for the public servants who hold a particular position?
Constitutional validity of Section 6-A of the Delhi Special Police Establishment Act, 1946 (DSPE Act) inserted by Section 26(c) of the Central Vigilance Commission Act, 2003 (Act 45 of 2003) and accordingly also said Section 26(c) came up for consideration before the 5-judges bench constituted to decide on the issue.
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 (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 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 its clause (c) inserted Section 6-A after Section 6-A in the DSPE Act. 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. The Constitutional validity of the provisions was challenged for being violative of Article 14 of the Constitution.
As observed by Court, the Court in such situation must remind itself to the principles relating to the applicability of Article 14 in relation to invalidation of legislation and must adjudge the issue with two-fold dimensions of Article 14 viz., (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 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. To decide on the present issue, following were the questions before the Court:
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?
It was held that differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation and if the object itself is discriminatory, the explanation that classification is reasonable having rational relation to the object sought to be achieved becomes immaterial.
Classification 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. The corrupt public servants, whether high or low, must be confronted with the process of investigation and inquiry equally and no distinction can be made between public servants against whom there are allegations amounting to an offence under the PC Act, 1988 on the basis of position or status in service. The classification infact advances public mischief and protects the crime-doer. 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. Thus, 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. If there are charges of bribery, graft, illegal gratification or criminal misconduct against a public servant, the status of offender is of just no relevance. The distinction made by Section 6-A renders it violative of Article 14.
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 and it is this object which makes the provision discriminatory.
It was accordingly held by the Supreme Court that Section 6-A(1) is invalid and violative of Article 14 of the Constitution and as a necessary corollary, the provision contained in Section 26 (c) of the Act 45 of 2003 to that extent is also invalid.
Dr. Subramanian Swamy vs. Director, Central Bureau of Investigation & Anr.