Dr.subramanian Swamy V. Director, Cbi & Anr. in India

Dr.subramanian Swamy V. Director, Cbi & Anr. [2014] Insc 234 (6 May 2014)

Court Judgment Information

• Year: 2014
• Date: 6 May 2014
• Court: Supreme Court of India
• INSC: [2014] INSC 234

Text of the Court Opinion

(Refortable) 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

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 (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

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 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 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.

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 judgment[1], 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 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.

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 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 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

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. Coelho[2] 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.

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