Equality in Corruption

By Sanjay Raman Sinha

In a case which dealt with corruption probe against senior administrative officers of the central government, the Supreme Court gave a landmark ruling. The Court held that its order striking down Section 6A of the Delhi Special Police Establishment (DSPE) Act, would apply retrospectively. Section 6A of the Delhi DSPE Act made it mandatory for the CBI to get sanction from the relevant authorities before prosecuting officers of the rank of joint secretary and above.

In 2014, the Supreme Court had abrogated Section 6A of the Delhi DSPE Act. Now after this verdict, this abrogation would apply retrospectively. The Constitution bench had been formed to consider whether the declaration made earlier by a Constitution bench in Subramanian Swamy vs Director, Central Bureau of Investigation and Another—that Section 6A of the DSPE Act, 1942, is unconstitutional—can be applied retrospectively in the context with Article 20 of the Constitution. The Constitution bench of five judges comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari held that when a law is declared unconstitutional by the Court, it means void ab initio (from the beginning) and the verdict would have retrospective application.

The case began when the appellant, Central Bureau of Investigation (CBI), registered an FIR on December 16, 2004, for offences under the Prevention of Corruption Act, 1988. It laid a trap wherein the respondent is said to have accepted a bribe to set things right for the radiologist conducting pre-natal test to determine the sex of the foetus in contravention of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. The respondent, the accused-doctor, applied for discharge, inter alia, amongst others on the ground that the trap, which was a part of the enquiry/investigation, had been laid without the previous approval of the central government as provided under Section 6A of the DSPE Act. The Special Judge, CBI, rejected the application for discharge. The matter was carried in revision before the Delhi High Court.

The single judge of the High Court framed three questions for consideration namely:

• 1. What is the background with regard to Section 6A of the DSPE Act?
• 2. Did the CBI act in contravention of Section 6A(1)?
• 3. If yes, does it mean that the entire trial, consequent upon an illegal investigation, is vitiated?

The single judge bench answered question number 2 in favour of the respondent and question number 3 was left open for the competent authority to take the decision. On reinvestigation and in case sanction is not granted, to notify the Special Judge, CBI, to close the case. The CBI moved the Court to challenge the order. It made a case that Section 6A(2) of DSPE Act would be applicable and not Section 6A(1). That the High Court erred in holding that Section 6A(1) was applicable. The appeal was pending since 2007. In 2014, a Constitution bench held that Section 6A(1) of the DSPE Act was invalid and violative of Article 14 of the Constitution in Subramanian Swamy vs Director, Central Bureau of Investigation and Another (2014 ).

The Constitution bench in Subramanian Swamy case did not decide whether the said declaration of Section 6A(1) of DSPE Act being violative of Article 14 of the Constitution would have retrospective effect or would apply prospectively. This matter was finally decided by the Constitution bench in the present matter. The Supreme Court referred to a batch of cases relating to sanction for initiating an inquiry against certain categories of civil servants as being violative of Article 14 of the Constitution. In this particular case, the apex court confined itself to the specific question as to whether the declaration of Section 6A of DSPE Act as unconstitutional and violative of the Constitution would have a retrospective effect or would apply prospectively from the date when it was declared. The Court was of the view that taking prior sanction of the designated authority for initiating investigation against a public servant was considered by the apex court in Vineet Narain and Others vs Union of India and Another (1997) and was struck down.

In the landmark case of Vineet Narain (1997), the apex court had struck down the directive on the ground that a statutory investigation cannot be impeded by administrative instructions. Six years on, Section 6A was introduced to restore the prior approval requirement. Clearly, it was a case of judiciary vs the executive on service matters. Moving on, the Court held that declaration would apply retrospectively i.e. since its inception from 2003.

The verdict held: “Section 6A of the DSPE Act, undeniably does not create a new offence nor does it obliterate the offence. The Constitution Bench in Subramanian Swamy (supra) noted that the classification made in Section 6A neither eliminates public mischief nor achieves some positive public good and, therefore, the classification was held to be discriminatory and violative of Article 14 of the Constitution as it sidetracks the fundamental objects of the Prevention of Corruption (PC) Act, 1988 to deal with corruption.”

The conclusions can be compressed as follows:

• (a) It is not a provision creating an offence or providing immunity from an offence under which anyone can be punished.
• (b) The said provision did not exempt applicability of anti-corruption laws to officers above the rank of Joint Secretary.
• (c) It was a mere executive safety mechanism; It was a initial protective net which the Court declared as unconstitutional.

The crux of the matter was immunity given to one class of public servants. It is to be noted that Parliament again inserted Section 17A in the PC Act, 1988 in 2018. This provision has continued to remain in the law book. It also provided for sanction before prosecution, but without any classification of government servants. All government servants of whatever category, class, or level, are provided protection under Section 17A of the PC Act, 1988. The Constitution bench in the Subramanian Swamy (supra) was testing the constitutional validity of Section 6A of DSPE Act. Section 6A has two sub-Sections (1) and (2). Sub-Section (1) provides of a protection from any enquiry or investigation into any offence under the PC Act, 1988 without the previous approval of the central government where the allegation relates to employees of the central government of the level of Joint Secretary and above (Clause a) and also 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 the government.

Importantly, Sub-Section (2) begins with a clause stating that no such approval would 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. In this context, the Constitution bench held that Section 6A(1) which required approval of the central government to conduct any enquiry or investigation into any offence alleged to have been committed under the PC Act, 1988, to be invalid and unconstitutional and in violation of Article 14 of the Constitution. Article 14 of the Constitution of India holds: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

That is, in matters of criminal offence and corruption, all officers are to be treated the same. The five-judge Constitution bench agreed with the submission of the centre and the CBI that the 2014 Constitution bench had no intention of declaring its order to be prospective. If it would have been thus, the bench would have specifically stated thus.  In the absence of such a declaration, the assumption is that verdict was meant to be retrospective.

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