Dr. Subramanian Swamy Vs. Director, Central Bureau of Investigation & ANR.
[Writ Petition (Civil) No. 38 of 1997]
Centre for Public Interest Litigation Vs. Union of India
[Writ Petition (Civil) No. 21 of 2004]
R.M. LODHA, CJI.
1. 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. Citing the judgments of this Court in Centre for Public Interest Litigation (2G Spectrum case)[3] and Manohar Lal Sharma[4] following Vineet Narain1, learned amicus curiae submits that trend of these judgments is to preserve the rule of law by insulating the CBI from executive influence which could derail and result in inaction in enforcing the criminal law against high level corruption.
Learned amicus curiae highlighted that there was no requirement of previous approval as contained in the impugned provisions between 18.12.1997 (the date of Vineet Narain1 judgment striking down the Single Directive) and 11.9.2003 (when CVC Act came into force) except the period between 25.8.1998 and 27.10.1998 when the CVC Ordinance, 1998 was in force and till the deletions by CVC Amendment Ordinance, 1998. He referred to N.N. Vohra Committee report which paints a frightening picture of criminal-bureaucratic-political nexus - a network of high level corruption - and submitted that 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.
14. Mr. Anil B. Divan, learned amicus curiae wants us to take judicial notice of the fact that high level bureaucratic corruption goes hand in hand, on many occasions, with political corruption at the highest level. This very group of high ranking bureaucrats, whose misconduct and criminality, if any, requires to be first inquired into and thereafter investigated, can thwart, defeat and impair this exercise. In substance, the potential accused would decide whether or not their conduct should be inquired into. He argues that the essence of skillful and effective police investigation is by collection of evidence and material secretly, without leakage so that the potential accused is not forewarned leading to destruction or tempering of evidence and witnesses.
Such investigation is compromised by the impugned provision, viz., Section 6-A of the DSPE Act. The requirement of previous approval in the impugned provision would mean leakages as well as breach of confidentiality and would be wholly destructive of an efficient investigation. The provision, such as Section 6- A, offers an impregnable shield (except when there is a court monitored investigation) to the criminal-bureaucratic-political nexus. If the CBI is not even allowed to verify complaints by preliminary enquiry, how can the case move forward? In such a situation, the very commencement of enquiry / investigation is thwarted and delayed. Moreover, a preliminary enquiry is intended to ascertain whether a prima facie case for investigation is made out or not. If CBI is prevented from holding a preliminary enquiry, it will not be able to even gather relevant material for the purpose of obtaining previous approval.
15. Learned amicus curiae submits that for judging the validity of classification or reasonableness or arbitrariness of State action, the Court is entitled to take notice of conditions prevailing from time to time. He referred to certain portions of the N.N. Vohra Committee report, 2G Spectrum case3 and the facts of a case before Delhi High Court entitled 'Telecom Watchdog'[5] and the case of M. Gopalakrishnan, Chairman and Managing Director (CMD of Indian Bank). Learned amicus curiae also relied upon decisions of this Court in V.G. Row[6] and D.S. Nakara[7].
16. It is submitted by the learned amicus curiae that pervasive corruption adversely affects welfare and other activities and expenditures of the state. Consequently, the rights of Indian citizens not only under Article 14 but also under Article 21 are violated. In this regard, he has relied upon the observations made by this Court in Vineet Narain1, Ram Singh[8], Subramanian Swamy[9], R.A. Mehta[10], Balakrishna Dattatrya Kumbhar[11] and In re. Special Courts Bill, 1978[12].
17. Learned amicus curiae submits that Section 6-A confers on the Central Government unguided, unfettered and unbridled power and the provision is manifestly arbitrary, entirely perverse and patently unreasonable. He relies upon the decisions of this Court in Travancore Chemicals and Manufacturing Co.[13], Krishna Mohan (P) Ltd.[14], Canara Bank[15] and Nergesh Meerza[16].
18. It is vehemently contended by the learned amicus curiae that the classification as contained in Section 6-A creating a privileged class of the government officers of the level of Joint Secretary and above level and certain officials in public sector undertakings, etc. is directly destructive and runs counter to the whole object and reason of the PC Act, 1988 read with the DSPE Act and undermines the object of detecting and punishing high level corruption. In this regard, learned amicus curiae referred to protection given to Government officials under Section 197 of the Code of Criminal Procedure (Cr.P.C.) and under Section 19 of the PC Act, 1988. He argues that the well-settled two tests:
(i) that classification must be founded on intelligible differentia and
(ii) that differentia must have a rational relation with the object sought to be achieved by the legislation, are not satisfied by Section 6-A. A privileged class of Central Government employees has been created inasmuch as the protection offered to the category of the government officers of the level of Joint Secretary and above regarding previous approval does not extend to:
(a) official / employees who are not employees of the Central Government,
(b) employees of the Central Government below Joint Secretary level, (c) employees of Joint Secretary level and above in the states,
(d) enquiry and investigation of offences which are not covered by the PC Act, 1988, and (e) other individuals including ministers, legislators and private sector employees. Learned amicus curiae relies upon the decision of this Court in Vithal Rao[17]. Submissions of Mr. Prashant Bhushan for Centre for Public Interest Litigation (CPIL-petitioner)
19. Mr. Prashant Bhushan, learned counsel for the petitioner in the connected writ petition filed by Centre for Public Interest Litigation (CPIL) has adopted the arguments of the learned amicus curiae. He submits that Section 6-A makes criminal investigation against a certain class of public servants unworkable and it completely militates against the rule of law. He referred to the United Nations document entitled "United Nations Convention Against Corruption" and submitted that Section 6-A of the DSPE Act interdicts enquiry or investigation in respect of certain class of officers and puts direct hindrance in combating corruption and, therefore, the provision is violative of Article 14 of the Constitution. Submissions of Mr. Gopal Sankaranarayanan (intervenor)
20. Mr. Gopal Sankaranarayanan, appearing on behalf of intervenor submits that Section 6-A of the DSPE Act breaches the basic feature of rule of law. He argues that the basic structure test can be applied to the statutes as well. By enactment of Section 6-A, the rule of law has suffered a two-fold violation: (i) resurrection of the single directive in the form of legislation without in any way removing the basis of the Vineet Narain1 judgment, and (ii) impediment of the due process (criminal investigation) by imposing a condition at the threshold. In this regard, he has relied upon decisions of this Court in State of Karnataka[18], L. Chandra Kumar[19], Kuldip Nayar[20], Madras Bar Association[21], K.T. Plantation (P) Ltd.[22], G.C. Kanungo[23], Indra Sawhney (2)[24], and I.R. Coelho2.
21. Mr. Gopal Sankaranarayanan, learned counsel for the intervenor, also submits that there is an unreasonable classification among policemen and among the accused and, in any case, the classification even if valid has no nexus with the object sought to be achieved by Section 6-A, which is apparently to protect the officers concerned. According to learned counsel, Section 6-A is also inconsistent with the Cr.P.C. In this regard, he refers to CBI Manual, Sections 19 and 22 of the PC Act, 1988 and Section 197 of Cr.P.C. Submissions of Mr. L. Nageswara Rao, ASG.
22. Mr. L. Nageswara Rao, learned Additional Solicitor General stoutly defends Section 6-A. He submits that the rationale behind Section 6- A of the DSPE Act can be seen in the reply to the debate in Parliament on the Central Vigilance Commission Bill by the then Union Minister of Law and Justice, Mr. Arun Jaitley. The provision is defended on the ground that those who are in decision making positions, those who have to exercise discretion and those who have to take vital decisions could become target of frivolous complaints and need to be protected.
Therefore, some screening mechanism must be put into place whereby serious complaints would be investigated and frivolous complaints can be thrown out. If such protection is not given to senior decision makers, anyone can file a complaint and the CBI or the police can raid the houses of such senior officers. This may affect governance inasmuch as instead of tendering honest advice to political executives, the senior officers at the decision-making level would only give safe and non-committal advice. He argues that the object of Section 6-A is to provide screening mechanism to filter out frivolous or motivated investigation that could be initiated against senior officers to protect them from harassment and to enable them to take decision without fear. In this regard, the legal principles enunciated in K. Veeraswami[25] were strongly pressed into service by Mr. L. Nageswara Rao.
23. It is argued by the learned Additional Solicitor General that Section 6-A is not an absolute bar because it does not prohibit investigation against senior government servants as such. It only provides a filter or pre-check so that the Government can ensure that senior officers at decision-making level are not subjected to unwarranted harassment.
24. Emphasizing that the Central Government is committed to weeding out vice of corruption, learned Additional Solicitor General submits that requests for approval under Section 6-A are processed expeditiously after the Government of India had constituted a Group of Ministers to consider certain measures that could be taken by Government to tackle corruption and the Group of Ministers suggested the measures to ensure that the requests received from CBI under Section 6-A are examined on priority and with objectivity.
25. Mr. L. Nageswara Rao, learned Additional Solicitor General submits that arbitrariness and unreasonableness cannot by themselves be a ground to strike down legislation. With reference to the decision of this Court in E.P. Royappa[26] he argues that while proposing a new dimension of arbitrariness as an anti-thesis to equality in Article 14, the Court used arbitrariness to strike down administrative action and not as a ground to test legislations. He submits that in Maneka Gandhi[27] the Court has not held that arbitrariness by itself is a ground for striking down legislations under Article 14. Ajay Hasia[28], learned Additional Solicitor General contends, also does not make arbitrariness a ground to strike down legislation. Distinguishing Malpe Vishwanath Acharya[29], he submits that this Court used the classification test to hold legislation to be arbitrary and the provision of standard rent in Bombay Rent Control Act was struck down as having become unreasonable due to passage of time. Learned Additional Solicitor General also distinguished Mardia Chemicals Ltd[30]. He vehemently contends that Courts cannot strike down legislations for being arbitrary and unreasonable so as to substitute their own wisdom for that of the legislature.
26. Mr. L. Nageswara Rao submits that wisdom of legislature cannot be gone into for testing validity of a legislation and, apart from constitutional limitations, no law can be struck down on the ground that it is unreasonable or unjust. In this regard, he relies upon Kesavananda Bharati[31]. He also referred to In re. Special Courts Bill, 197812, which explained the principles enshrined in Article 14. In support of principle that legislations can be declared invalid or unconstitutional only on two grounds: (a) lack of legislative competence, and (b) violation of any fundamental rights or any provision of the Constitution, learned Additional Solicitor General relies upon Kuldip Nayar
20. He also relies upon Ashoka Kumar Thakur[32] in support of the proposition that legislation cannot be challenged simply on the ground of unreasonableness as that by itself does not constitute a ground. He submits that a Constitution Bench in K.T. Plantation (P) Ltd.22 has held that plea of unreasonableness, arbitrariness, proportionality, etc., always raises an element of subjectivity on which Court cannot strike down a statute or a statutory provision. Unless a constitutional infirmity is pointed out, a legislation cannot be struck down by just using the word 'arbitrary'. In this regard, he heavily relies upon the decisions of this Court in In re. Natural Resources Allocation[33], McDowell[34] and Rakesh Kohli[35]. The decision of the US Supreme Court in Heller[36] is also cited by the learned Additional Solicitor General in support of the proposition that Court should not sit as super legislature over the wisdom or desirability of legislative policy.
27. Mr. L. Nageswara Rao, learned Additional Solicitor General argues that rule of law cannot be a ground for invalidating legislations without reference to the Constitution. He submits that rule of law is not a concept above the Constitution. Relying upon Indira Nehru Gandhi[37], learned Additional Solicitor General argues that meaning and constituent elements of rule of law must be gathered from the enacting provisions of the Constitution; vesting discretionary powers in the Government is not contrary to the rule of law. Moreover, he submits that exceptions to the procedure in Cr.P.C. cannot be violative of Articles 14 and 21 and such exceptions cannot be termed as violating the rule of law. In this regard, learned Additional Solicitor General refers to Section 197 of Cr.P.C. and relies upon Matajog Dobey[38], wherein this Court upheld constitutional validity of Section 197 and held that the said provision was not violative of Article 14.
He also referred to Section 187 of Cr.P.C., Section 6 of the Armed Forces (Special Provisions) Act, 1958 and Section 187-A of the Sea Customs Act and submitted that these provisions have been held to be constitutionally valid by this Court. Naga People's Movement of Human Rights[39] was cited by learned Additional Solicitor General wherein Section 6 of the Armed Forces (Special Provisions) Act, 1958 was held constitutional and Manhar Lal Bhogilal[40] was cited wherein Section 187-A of the Sea Customs Act was held valid.
Learned Additional Solicitor General has also referred to Section 42 of the Food Safety and Standards Act, 2006, Section 50 of the Prevention of Terrorism Act, 2002, Section 12 of the Suppression of Unlawful Acts Against Safety Of Maritime Navigation And Fixed Platforms On Continental Shelf Act, 2002, Section 23 of the Maharashtra Control of Organised Crime Act, 1999, Section 45 of the Unlawful Activities (Prevention) Act, 1967, Section 20-A of the Terrorist and Disruptive Activities (Prevention) Act, 1987, Section 137 of the Customs Act, 1962, Section 11 of the Central Sales Tax Act, 1956, Section 7 of the Explosive Substances Act, 1908, Section 20 of the Prevention of Food Adulteration Act, 1954, Section 23 of Lokpal and Lokayuktas Act, 2013, Section 11 of Cotton Ginning and Pressing Factories Act, 1925, Section 12 of Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, Section 16 of Gujarat Electricity Supply Undertakings (Acquisition) Act, 1969, Section 24 of Karnataka Control of Organized Crimes Act, 2000 and Section 9 of Bihar Non-Government Educational Institution (Taking Over) Act, 1988 to demonstrate that there are large number of provisions where permission of the Government is required before taking cognizance or for institution of an offence.
28. Learned Additional Solicitor General submits that Section 6-A satisfies the test of reasonable classification. The public servants of the level of Joint Secretary and above take policy decisions and, therefore, there is an intelligible differentia. As they take policy decisions, there is a need to protect them from frivolous inquiries and investigation so that policy making does not suffer. Thus, there is rational nexus with the object sought to be achieved. In this regard, learned Additional Solicitor General has relied upon the decisions of this Court in Ram Krishna Dalmia[41], Union of India[42] and Re: Special Courts Bill, 197812. He also referred to the proceedings of the Joint Parliamentary Committee, Law Minister's Speech, the Government of India (Transaction of Business) Rules and the Central Secretariat Manual of Procedure.
29. Mr. L. Nageswara Rao submits that conferment of unbridled / un- canalized power on the executive cannot be a ground for striking down legislation as being violative of Article 14. Mere possibility of abuse of power cannot invalidate a law. He cited the judgments of this Court in Re Special Courts Bill, 197812, N.B. Khare[43], Mafatlal Industries[44] and Sushil Kumar Sharma[45].
30. Learned Additional Solicitor General submits that conferment of power on high authority reduces the possibility of its abuse to minimum. In support of this submission, learned Additional Solicitor General relies upon the decision of this Court in Maneka Gandhi27, Matajog Dubey38, V.C. Shukla[46] and V.C.Shukla (IInd)[47]. He also submits that absence of guidelines can only make the exercise of power susceptible to challenge and not the legislation. In this regard, Pannalal Binjraj[48] and Jyoti Pershad[49] are cited by him. Submissions of Mr. K.V. Viswanathan, ASG
31. Mr. K.V. Viswanathan, learned Additional Solicitor General submits that there is presumption of constitutionality and mutual respect inherent in doctrine of separation of powers. He relies upon Bihar Distillery Ltd.[50].
32. Mr. K.V. Viswanathan, learned Additional Solicitor General referred to Sections 7, 11 and 13 of the PC Act, 1988 in order to show that all these provisions relate to discharge of official functions. The officers above the Joint Secretary level are bestowed with crucial decision making responsibilities. Citing Kripalu Shankar[51] and the speech of the then Minister of Law and Justice, he submits that people in decision making process need to be given an environment to take decisions without any undue extraneous pressure. He relies upon P. Sirajuddin[52] to highlight the observations of this Court that lodging of FIR against a government official especially, one who occupies top position in a department, even if baseless, would do incalculable harm not only to the officer in particular, but to the department he belongs to, in general.
33. Mr. K.V. Viswanathan has highlighted that corruption has two aspects: (a) aspect related to decision making - abuse of position, pecuniary loss to the Government etc. and (b) aspect of illegal pecuniary gain - bribery etc. That abuse of position in order to come within the mischief of corruption must necessarily be dishonest so that it may be proved that the officer caused deliberate loss to the department. Mere violation of codal provisions, or ordinary norms of procedural behaviour does not amount to corruption. He cites decisions of this Court in S.P. Bhatnagar[53], Major S. K. Kale[54], C. Chenga Reddy[55] and Abdulla Mohammed Pagarkar[56].
34. Learned Additional Solicitor General submits that the State is the first victim of corruption and the executive is in the best position to adjudge whether it has been a victim of corruption. Section 6-A has been enacted to protect the decision making process of the executive from undue harassment and exercise of police powers by CBI. He cites the judgment of this Court in A.R. Antulay[57].
35. Mr. K.V. Viswanathan has referred to other provisions under law providing for the aggrieved authority to take a decision whether the offence has been made out or not. In this regard, he has invited our attention to Section 195 of Cr.P.C. and the decision of this Court in Patel Laljibhai Somabhai[58]. He also referred to Section 340 of Cr.P.C. which allows the court to adjudge whether perjury was committed, and if it was, then whether it required prosecution. He relies upon the decision of this Court in Iqbal Singh Marwah[59].
36. Citing Manohar Lal Sharma4, learned Additional Solicitor General submits that even in a court monitored investigation, the concerned officer could approach the concerned court for an opportunity to be heard. Moreover, in Manohar Lal Sharma4, this court has noticed the office memorandum dated 26.09.2011 approving the recommendations made by the Group of Ministers which provides inter alia for the concerned authority to give reasons for granting/rejecting sanction under Section 6-A. He submits that when there is denial of sanction order under Section 6-A, such order of the Central Government could be challenged in a writ petition before a High Court. He says that United Nations recognizes such a protection as Section 6-A in Article 30 of the UN Convention against corruption.
Principles applicable to Article 14
37. Article 14 reads: "14. Equality before law.-The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
38. The first part of Article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism. The second part, which is a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination of favouritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons under like circumstances12.
39. Article 14 of the Constitution incorporates concept of equality and equal protection of laws. The provisions of Article 14 have engaged the attention of this Court from time to time. The plethora of cases dealing with Article 14 has culled out principles applicable to aspects which commonly arise under this Article. Among those, may be mentioned, the decisions of this Court in Chiranjit Lal Chowdhuri[60], F.N. Balsara[61], Anwar Ali Sarkar[62], Kathi Raning Rawat[63], Lachmandas Kewalram Ahuja[64], Syed Qasim Razvi[65], Habeeb Mohamed[66], Kedar Nath Bajoria[67] and innovated to even associate the members of this Court to contribute their V.M. Syed Mohammad & Company[68]. The most of the above decisions were considered in Budhan Choudhry[69]. This Court exposited the ambit and scope of Article 14 in Budhan Choudhry69 as follows: "It is now well-established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely,
(i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and
(ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question.
The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well-established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure."
40. In Ram Krishna Dalmia41, the Constitution Bench of five Judges further culled out the following principles enunciated in the above cases -
"(a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;
(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;
(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;
(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and
(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation."
41. In Ram Krishna Dalmia41, it was emphasized that the above principles will have to be constantly borne in mind by the court when it is called upon to adjudge the constitutionality of any particular law attacked as discriminatory and violative of the equal protection of laws.
42. Having culled out the above principles, the Constitution Bench in Ram Krishna Dalmia41, further observed that statute which may come up for consideration on the question of its validity under Article 14 of the Constitution may be placed in one or other of the following five classes:
"(i) A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances known to or brought to the notice of the court. In determining the validity or otherwise of such a statute the court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply only to a particular person or thing or only to a certain class of persons or things. Where the court finds that the classification satisfies the tests, the court will uphold the validity of the law.
(ii) A statute may direct its provisions against one individual person or thing or to several individual persons or things but no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowledge. In such a case the court will strike down the law as an instance of naked discrimination.
(iii) A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the court will strike down both the law as well as the executive action taken under such law.
(iv) A statute may not make a classification of the persons or things for the purpose of applying its provisions and may leave it to the discretion of the Government to select and classify the persons or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification.
(v) A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercise of discretion by the Government in the matter of such selection or classification. If the Government in making the selection or classification does not proceed on or follow such policy or principle, then in such a case the executive action but not the statute should be condemned as unconstitutional."
43. In Vithal Rao17, the five-Judge Constitution Bench had an occasion to consider the test of reasonableness under Article 14 of the Constitution. It noted that the State can make a reasonable classification for the purpose of legislation and that the classification in order to be reasonable must satisfy two tests:
(i) the classification must be founded on intelligible differentia and
(ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question.
The Court emphasized that in this regard object itself should be lawful and it cannot be discriminatory. If the object is to discriminate against one section of the minority, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved.
44. The constitutionality of Special Courts Bill, 1978 came up for consideration in re. Special Courts Bill, 197812 as the President of India made a reference to this Court under Article 143(1) of the Constitution for consideration of the question whether the "Special Courts Bill" or any of its provisions, if enacted would be constitutionally invalid. The seven Judge Constitution Bench dealt with the scope of Article 14 of the Constitution. Noticing the earlier decisions of this Court in Budhan Choudhry69, Ram Krishna Dalmia41, C.I. Emden[70], Kangsari Haldar[71], Jyoti Pershad49 and Ambica Mills Ltd.[72], in the majority judgment the then Chief Justice Y.V. Chandrachud, inter alia, exposited the following propositions relating to Article 14:
"(1) xxx xxx xxx (2) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.
(3) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.
(5) By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well- defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily.
(6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.
(7) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.
(8) The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense above mentioned.
(9) If the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject- matter of legislation in accordance with the objective indicated in the statute. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the Legislature, its action can be annulled as offending against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied.
(10) Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.
(11) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality.
(12) Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 must be determined in each case as it arises, for, no general rule applicable to all cases can safely be laid down. A practical assessment of the operation of the law in the particular circumstances is necessary.
(13) A rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination."
45. In Nergesh Meerza16, the three-Judge Bench of this Court while dealing with constitutional validity of Regulation 46(i)(c) of Air India Employees' Service Regulations (referred to as 'A.I. Regulations') held that certain conditions mentioned in the Regulations may not be violative of Article 14 on the ground of discrimination but if it is proved that the conditions laid down are entirely unreasonable and absolutely arbitrary, then the provisions will have to be struck down. With regard to due process clause in the American Constitution and Article 14 of our Constitution, this Court referred to Anwar Ali Sarkar62, and observed that the due process clause in the American Constitution could not apply to our Constitution. The Court also referred to A.S. Krishna[73] wherein Venkatarama Ayyar, J. observed: "The law would thus appear to be based on the due process clause, and it is extremely doubtful whether it can have application under our Constitution."
46. In D.S. Nakara7, the Constitution Bench of this Court had an occasion to consider the scope, content and meaning of Article 14. The Court referred to earlier decisions of this Court and in para 15 (pages 317- 318), the Court observed: "Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question."
47. In E.P. Royappa26, it has been held by this Court that the basic principle which informs both Articles 14 and 16 are equality and inhibition against discrimination. This Court observed in para 85 (page 38 of the report) as under: "....From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
Court's approach
48. Where there is challenge to the constitutional validity of a law enacted by the legislature, the Court must keep in view that there is always a presumption of constitutionality of an enactment, and a clear transgression of constitutional principles must be shown. The fundamental nature and importance of the legislative process needs to be recognized by the Court and due regard and deference must be accorded to the legislative process. Where the legislation is sought to be challenged as being unconstitutional and violative of Article 14 of the Constitution, the Court must remind itself to the principles relating to the applicability of Article 14 in relation to invalidation of legislation.
The two dimensions of Article 14 in its application to legislation and rendering legislation invalid are now well recognized and these are (i) discrimination, based on an impermissible or invalid classification and (ii) excessive delegation of powers; conferment of uncanalised and unguided powers on the executive, whether in the form of delegated legislation or by way of conferment of authority to pass administrative orders - if such conferment is without any guidance, control or checks, it is violative of Article 14 of the Constitution. The Court also needs to be mindful that a legislation does not become unconstitutional merely because there is another view or because another method may be considered to be as good or even more effective, like any issue of social, or even economic policy. It is well settled that the courts do not substitute their views on what the policy is.
Consideration
49. Several objections have been raised against this provision in the context of Article 14. First, we shall consider the challenge against the validity of classification which Section 6-A(1) makes and the lack of relationship between the basis of that classification and the object which it seeks to achieve.
50. The impugned provision, viz., Section 6-A came to be enacted after the decision of this Court in Vineet Narain
1. It is important to bear in mind that the three-Judge Bench of this Court in Vineet Narain1 was directly concerned with constitutional validity of the Single Directive No. 4.7(3), which to the extent relevant for the present purposes, reads:
"4.7(3)(i) In regard to any person who is or has been a decision- making level officer (Joint Secretary or equivalent or above in the Central Government or such officers as are or have been on deputation to a Public Sector Undertaking; officers of the Reserve Bank of India of the level equival
