SC gives CBI free hand to probe top officials

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Taking away a statutory shield from bureaucrats accused of corruption, the Supreme Court on Tuesday held as unconstitutional a legal provision that makes it mandatory for the CBI to seek the Centre’s approval before initiating inquiry into allegations of corruption against a government officer of the rank of joint secretary or above.

A five-judge Constitution bench of the top court held that Section 6-A of the Delhi Special Police Establishment Act, 1946, suffers from the vice of discriminating between officers of different ranks and fetters the investigative agency from carrying out an impartial probe against decision-making bureaucrats.

“The corrupt public servants, whether high or low, are birds of the same feather and must be confronted with the process of investigation and inquiry equally. Based on the position or status in service, no distinction can be made between public servants against whom there are allegations amounting to an offence under the Prevention of Corruption Act, 1988. The object of Section 6-A itself is discriminatory,” the bench headed by Chief Justice R M Lodha said.

It said that such classification of bureaucrats for investigation purposes violated Article 14 of the Constitution that mandates that law would treat everyone equally.

“Every public servant against whom there is reasonable suspicion of commission of crime or there are allegation of an offence under the PC Act, 1988 has to be treated equally and similarly under the law,” the bench, also comprising justices A K Patnaik, S J Mukhopadhaya, Dipak Misra and F M I Kalifulla, said.

“The very power of the CBI to enquire and investigate into 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. The protection in section 6-A has propensity of shielding the corrupt,” the 71-page verdict said.

“The previous approval from the government necessarily required under section 6-A would result in indirectly putting to notice the officers to be investigated before commencement of investigation. Moreover, if the CBI is not even allowed to verify complaints by preliminary enquiry, how can the case move forward? If the CBI is prevented from holding a preliminary enquiry, at the very threshold, a fetter is put to enable (sic) the CBI to gather relevant material,” it said.

The top court said that “corruption is an enemy of nation” and must be dealt with sternly. Additional solicitor general K V Vishwanath had submitted that the government does not want to protect any corrupt public official and the provision is only to ensure that senior bureaucrats are not quizzed without adequate safeguards as they are involved in policy making.

The ASG had said that lodging an FIR against a top bureaucrat would harm not only his reputation, but also that of the department and that is the reason why the government decided to check the nature of the complaint before permitting inquiry.

The verdict was passed on pleas filed by BJP leader Subramanian Swamy and NGO Centre for Public Interest Litigation (CPIL), who had contended that Section 6A in the statute affects the pace of criminal investigation and must be scrapped.

Welcoming the judgment, the CBI said a number of cases would now be expedited. “This decision will go a long way in finalising several cases pending before us,” CBI director Ranjit Sinha said. He said more responsibilities have been put on the CBI following the judgment to ensure that no innocent is subjected to this provision.

“We will be strengthening our already existing mechanism and due diligence will be done before questioning any senior officer,” he said. According to sources in the department of personnel and training, the government will formalise its next move after going through the detailed order. “Since this is a significant judgment, it will have to be examined very carefully before the DoPT takes a decision on the issue,” a senior official said.

Sources claimed the decision will be left to the new government now. With barely 10 days left for counting votes, it is unlikely that the UPA government will take any hasty decision.

A top government functionary said once the new government is in place, the judgment would have to be examined by the DoPT, PMO and the law ministry. A former cabinet secretary while welcoming the Supreme Court order sounded a note of caution as well. “Now an investigative agency can easily misuse its powers to harass senior officials, which can seriously hamper government functioning. So, there needs to be a mechanism to check the misuse,” the official said.

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