DR. SUBRAMANIAN SWAMY v. DIRECTOR, CENTERAL BUREAU OF INVESTIGATION & Anr.

taken care of observations of this Court in *Vineet Narain insofar as trap cases are concerned. It also takes care of the infirmity pointed out by this Court that in the absence of any statutory requirement of prior permission or sanction for investigation, it cannot be imposed as a B condition precedent for initiation of im1estigation, but, Section 6-A continues to suffer from the other two infirmities which this Court noted concerning Single Directive, viz.; (a) where inference is to be drawn that the decision must have been for corrupt motive and direct c evidence is not there, th~ expertise to take decision whether to proceed or not in such cases should be with the CBI itself and not with the Central Government and (b) in any event the final decision to commence investigation into the offences must be of the CBI with the internal aid and advice and not of anybody else. Section 6-A also suffers from the vice of classifying offenders differently for treatment thereunder for inquiry and investigation of offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance wi~h law, which is equal in its application to everyone. [Para 64] [939-G-H; 940-A-C] E 0 F

8.Way back in 1993, the Central Government constituted a Committee under the Chairmanship of the former Home Secretary (Shri N.N. Vohra) to take stock of all available information about the activities of the crime syndicates/mafia organizations, which had developed links with and were being permitted by Government functionaries and political personalities. The report paints G a frightening picture of criminal-bureaucratic-political nexus - a network of high level corruption. The impugned provision puts this nexus in a position to block inquiry and investigation by CBI by conferring the power of previous approval on the Central Government. [Para 65] [940-D-F] H DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 887 ORS.

9.1. The classification is based on intelligible A differentia when one set of bureaucrats of Joint Secretary level and above who are working with the Central Government are offered protection under Section 6-A while the same level of officers who are working in the States do not get protection though both classes of these B officers are accused of an offence under PC Act, 1988 and inquiry/investigation into such allegations is to be carried out. Our answer is in lhe negative. The provision in Section 6-A, thus, impedes tracking down the corrupt senior bureaucrats as without previous approval of the C Central Government, the CBI cannot even hold preliminary inquiry much less an investigation into the allegations. The protection in Section 6-A has propensity of shielding the corrupt. T~e object of Section 6-A, that senior public servants of the level of Joint Secretary and D 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. The CBI is not able to proceed even to collect the material to unearth prima facie E substance into the merits of allegations. Thus, the object of Section 6-A itself is discriminatory. That being the position, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the o!Jject sought to be achieved. [Para 67] [942-D-G] F Vineet Narain & Ors. v. Union of India & Anr. (1998) 1 / SCC 226: 1997 (6) Suppl. SCR 595 ·- relied on.

9.2. Undoubtedly, every differentiation is not a· G discrimination but at the same time, differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. A simple physical grouping which separates one category from the other without any rational basis is not a sound or H 888 SUPREME COURT REPORTS [2014] 6 S.C.R. A intelligible differentia. The separation or segregation mus\. have a systematic relation and rational basis and the object of such segregation must not be discriminatory. Every public servant against whom there is reasonable suspicion of commission of crime or there are allegations B of an offence under the PC Act, 1988 has to be treated equally' and similarly under the law. Any distinction made between them on the basis of their status or position in service for the purposes of inquiry I investigation is nothing but an artificial one and offends Article 14. Office c of public power cannot be the workshop of personal gain. The probity in public life is of great importance. How can two public servants against whom there are allegations of corruption or graft or bribe-taking or criminal misconduct under the PC Act, 1988 can be made to be treated differently because one happens to be a junior officer and the other, a senior decision maker. Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may -be, and punishing such person is a necessary mandate under the E PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the 1 same process of inquiry and investigation. [Paras 69, 70 0 F and 71] [943-8-H]

10.1. The PC Act, 1988 is a special statute and its preamble shows that it has been enacted to consolidate and amend the law relating to the prevention of G corruption and for the matters connected therewith. It is intended to make the corruption laws more effective by widening their coverage and by strengthening the provisions. It came to be enacted because Prevention of Corruption Act, 1947 as amended from time to time was inadequate to deal with the offences of· corruption H DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 889 ORS. effectively. The new Act now seeks to provide for speedy A trial of offences punishable under the Act in public interest as the legislature had become aware of corruption amongst the ·public servants. Corruption corrodes the moral fabric of the society and corruption by public servants not only leads to corrosion of the B moral fabric of the society but also harmful to the national economy and national interest, as the persons occupying high posts in the Government by misusing their power due to corruption can cause considerable damage to the national economy, national interest and image of the c country. [Paras 73, 74] [944-D-G] J. Jayalalitha v. Union of India & Anr. (1999) 5 SCC 138 - relied on. ·

10.2. The PC Act, 1988 has also widened the scope D of the definition of the expression 'public servant' and incorporated offences under Sections 161 to 165A of the Indian Penal Code (IPC). By Lokpal and Lokayuktas Act, 2013 (Act 1 of 2014), further amendments have been made therein. The penalties relating to the offences under E Sections 7, 8, 9, 12, 13 and 14 have been enhanced by. these amendments. Section 7 makes taking gratification by a public servant other than legal remuneration in respect of an official act as an offence and provides penalties for such offence. The expressions 'gratification' and 'legal remuneration' have been explained in clauses F (b) and (c) of the Explanation appended to Section 7. Taking· gratification by corrupt or illegal means to influence public servant is an offence under Section 8 while under Section 9, taking gratification for exercise of personal influence with a public servant is an offence. G Section 11 provides for an offence where a public servant obtains valuable thing without consideration from person concerned in proceeding or business transacted by such public servant. Section 17 authorizes only certain le\ JI of police officers to investigate the offences under the PC H 890 SUPREME COURT REPORTS [2014] 6 S.C.R. A Act, 1988. An investigation into such offences by any other police officer can be carried out only after having proper authorization from the competent court or competent authority as provided therein. Section 19 mandates that no Court shall take cognizance of an B offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with the previous sanction as provided in that. section. Section 19 does not permit any court to take cognizan~e of an offence punishable under Sections 7, c 10, 11, 13 and 15 of the PC Act, 1988 without previous sanction from the competent authority where the offence has been committed by a public servant who is holding the office and by misusing or abusing the powers of the office,· he has committed the offence. Section 19, thus, provides to every public servant, irrespective of his position in service, protection from frivolous and malicious prosecution. [Paras 75 to 75.2 to 75.4] [944-H; 945-A-E; 947-C-F] 0 State of MP. and Ors. v. Ram Singh (2000) 5 SCC 88: E 2000 (1) SCR 579; State of A.P. v. V. Vasudeva Rao [(2004) 9 sec 319: 2003 (5) Suppl. SCR 500 - relied on.

11. Criminal justice system mandates that any investigation into the crime should be fair, in accordance F with law and should not be tainted. It is equally important that interested or influential persons are not able to. misdirect or highjack the investigation so as to throttle a fair investigation resulting in the offenders escaping the punitive course of law. These are important facets of rule of law. Breach of rule of law amounts to negation of G equality under Article 14. Section 6-A fails in the context of these facets of Article 14. The argument that rule of law is not above law and cannot be a ground for invalidating legislations overlooks the well settled position that rule of law is a facet of equality under Article 14 and breach H of rule of law amounts to breach of equality under Article DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 891 ORS. 14 and, therefore, breach of rule of law may be a ground A for invalidating the Jegislation being in negation of Article 14. [Para 85] (953-B-D]

12. Section 156 of the Cr.P.C. enables any officer in charge of a police station to investigate a cognizable B offence. Insofar as non-cognizable offence is concerned, a police officer by virtue of Section 155 of Cr.P .C. can investigate. it after obtaining appropriate order from the Magistrate havin9 power to try such case or commit the case for trial regardless of the status of the officer C concerned. The scheme of Section 155 and Section 156 Cr.P.C. indicates that the local police may investigate a senior Government officer without previous approval of the Central Government. However, CBI cannot do so in view of Section 6-A. This anomaly in fact occurred in Centre ,for PIL. That was a matter in which investigations D were conducted by the local police in respect of senior Government official without any previous approval and a challan filed in the court of Special Judge dealing with · offences under the PC Act, 1988. Dealing with such anomaly in Centre for PIL, this Court in Manohar Laf E Sharma observed, "It is difficult to understand the logic behind such a dichotomy unless it is assumed that frivolous and vexatious complaints are made only when the CBI is the investigating agency and that it is only CBI that is capable of harassing or victimizing a senior F Government official while the local police of the State Government does not entertain frivolous and vexatious complaints and is not capable of harassing or victimizing a senior government official. No such assumption can be made." This clearly indicates that Section 6-A has brought G an anomalous situation and the very object of the provision to give protection to certain officers (Joint Secretary and above) in the Central Government has been rendered discriminatory and violative of Article 14. In Manohar Lal Sharma, the Attorney General made a H 892 SUPREME COURT REPORTS [2014] 6 S.C.R. A concession to the effect that in the event of CBI conducting an inquiry, as opposed to an investigation into the conduct of a senior government officer-, no previous approval of the Central Government is required since the inquiry does not have the same adverse B connotation that an investigation has. To that extent, Section 6-A, as it is, would not survive. Insofar as investigation is concerned, an investigation into a crime may have some adverse impact but where there are allegations of an offence under the PC Act, 1988 against c a public servant, whether high or low, whether decision maker or not, an independent investigation into such allegations is of utmost importance and unearthing the truth is the goal. The aim and object of investigation is ultimately to search for truth and any law that impedes that object may not stand the test of Article 14. [Paras 86, 90] [953-E-H; 954-A-C] 0