SC: No approval needed for initiating investigation against senior bureaucrats
A five member Supreme Court constitutional bench headed by Justice Lodha and comprising justices A K Patnaik, S J Mukhopadhaya, Dipak Misra and F M I Kalifulla, ruled yesterday that there cannot be any bar on an investigating agency from initiating an investigation against a senior officer of the above the rank of joint secretary without the prior permission of the government.
The bench observed that the protection as provided in Section 6A has the propensity of shielding the corrupt and questioned “How can the status of officials be of any relevance in the offence under PCA and any distinction by way of Section 6A of the DSPEA makes it violative of Article 14.”
The bench observed that corruption is an enemy of nation and held that it is difficult to make classification of officers in graft cases as it is against the mandate of the PCA. Activists have pointed in the past that the prior approval under Section 6A results into hampering the investigation and indirectly protects the guilty.
The bench said “We hold Section 6A of the Act, which requires Central Government’s approval for the offences under the Prevention of Corruption Act (PCA) to make inquiry against officer of the rank of joint secretary and above, as invalid and violative of Article 14 of the Constitution.
Holding that there cannot be any classification of officers for the purpose of inquiry of offence under the PCA, the bench observed “The corrupt public servants, higher or lower in rank, are the birds of same feather and have to be dealt with equally.......We are of the view that there can be no distinction between certain class of officials for inquiry of the offences under the PCA.
The CBI has welcomed the Supreme Court's ruling striking down the provision of seeking mandatory prior approval to initiate investigation against officers of the rank of Joint Secretary and above. The CBI said that a number of cases will be expedited following the judgement while pointing that the added additional responsibilities on the probe agency so that "due diligence" is done before examining any official of the rank of Joint Secretary and above. Amongst the quick reactions from the political parties, the BJP Party spokesperson Prakash Javadekar, has welcomed the Supreme Court decision. The Aam Aadmi Party also welcomed the Apex court’s decision.
The outcome of the Apex Court verdict is that henceforth all government officials would be treated equally and have to face the same process of inquiry in cases of corruption. The status of the bureaucrats would have no relevance in the offence under the Prevention of Corruption Act and there would be no distinction between senior or junior bureaucrats for investigation purposes. Further, there would be no need for a prior permission from the Centre to probe corruption charges against joint secretary level officers. It is likely to expedite pending cases and would not restrict the CBI from collecting evidence.
In the Jain Hawala verdict of December 1997, the Supreme Court had struck down the directive prohibiting the investigating agency from initiating a probe against an officer of the rank of joint secretary without the prior approval from the government. A bench headed by Chief Justice J S Verma had struck down the Single Directive which was then in the form of executive instructions to the CBI by the Central government. The bench held that the effect of the Directive was to thwart investigation and promote impunity in the upper echelons.
The government brought an ordinance to restore the Single Directive but also conferred a statutory status on it which was objected to by the Supreme Court. This led to another ordinance in October 1998 deleting the provision related to the Single Directive. In December 1998, “The Central Vigilance Commission Bill” was introduced to replace the ordinance which lapsed in April 1999 with the dissolution of the 12th Lok Sabha. A fresh CVC Bill was introduced in the 13th Lok Sabha in December 1999 and was referred to a standing committee headed by Sharad Pawar which presented its report in November 2000 recommending that the Single Directive be kept in existence. Journalist Kuldip Nayar, who was then a member of the Rajya Sabha, had given a dissenting note that pliable public servants "who carry out the errands of the political masters will go scot free". Thge committe gave a final finding that the there was a need to protect bona fide actions at the decision making level.
The bureaucracy has argued that the officers at the decision making level need special protection to act honestly and without fear.