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

- **Citation:** [2014] 6 S.C.R. 873
- **Court:** Supreme Court of India
- **Decided:** 2014-05-06
- **Bench:** R.M. Lodha Cji, A.K. Patnaik, Sudhansu Jyoti Mukhopadhaya, Dipak Misra, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-subramanian-swamy-v-director-centeral-bureau-of-investigation-anr-30101
- **Pages:** 87

## Headnote

DELHI SPECIAL POLICE ESTABLISHMENT ACT,
1946:
A
B
c
s. 6-A - Constitutional validity of - Requirement of
approval of the Central Government to conduct inquiry or
investigation where the allegations of commission of an
D
offence under the PC Act, 1988 relate to the employees of
the Central Government of the level of Joint Secretary and
above - Held: Classification which is made in s. 6-A on the
basis of status in the Government service is not permissible
under Article 14 as it defeats the purpose of finding prima
E
facie truth into the allegations of graft, which amount to an
offence under the PC Act, 1988 - There cannot be sound
differentiation between corrupt public servants based on their
status because irrespective of their status or position, corrupt
public servants are corrupters of public power - The
F
classification made in s. 6-A neither eliminates public mischief
nor achieves some positive public good, rather it advances
public mischief and protects the crime-doer - There is no
rational basis to classify the two sets of public servants
differently on the ground that one set of officers is decision
G
making officers and not the other set of officers - If there is
an accusation of bribery, graft, illegal gratification or criminal
misconduct against a public servant, then the status of
offender is of no relevance - The result of the impugned
873
H
874
SUPREME COURT REPORTS
[2014] 6 S.C.R.
A
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 the CBI should
even start an inquiry or investigation against them or not -
There will be no c'onfidentiality and insulation of the
B
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 - As a necessary corollary, the
provision contained in s.26 (c) of the Act 45 of 2003 to that
c extent is also declared invalid - Prevention of Corruption Act,
1988 - Constitution of India, 1950 - Article 14 - Central
Vigilance Commission Act, 2003 - s.26(c).
s. 6A - Protection to a class of the Government officers
of the level of Joint Secretary and above - Reasonableness
D of classification - Held: The classification is not based on
intelligible differentia when one set of bureaucrats of Joint
Secretary level and above who are working with the Central
Government are offered protection u/s. 6-A while the same
level of officers who are working in the States do not get
E
protection though both classes of these officers are accused
of an offence under PC Act, 1988 and inquiry/investigation
into such a/legations is to be carried out - The provision in
s. 6-A, thus, impedes tracking down the corrupt senior
bureaucrats as without previous approval of the Central
F
Government, the CBI cannot even hold preliminary inquiry
much less an investigation into the a/legations - The
protection in s. 6-A has propensity of shielding the corrupt -
The object of s. 6-A, that senior public servants of the level of
Joint Secretary and above who take policy decision must not
G
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 - Thus, the object of s. 6-A itself
is discriminatory.
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI &
875
ORS.
CONSTITUTION OF IND/A, 1950:
A
Article 14 - Challenge to the constitutional validity of a law
enacted by the legislature - Held: Court to keep in view that
there is always a presumption of constitutionality of an
enactment, and a clear tran,sgression of constitutional B
principles must be shown - The two dimensions of Article 14
in its application to legislation and rendering legislation invalid
are discrimination, based on an impermissible or invalid
classification and excessive delegation of powers; conferment
of uncanalised and unguided powers on

## Text

_Characters 0–39,966 of 169,458. This is a partial read: ask again with offset=39966 for what follows._

[2014] 6 S.C.R. 873
DR. SUBRAMANIAN SWAMY
v.
DIRECTOR, CENTERAL BUREAU OF INVESTIGATION &
ANR.
(Writ Petition (Civil) No. 38 of 1997)
MAY 06, 2014.
[R.M. LODHA CJI, A.K. PATNAIK, SUDHANSU JYOTI
MUKHOPADHAYA, DIPAK MISRA AND FAKKIR
MOHAMED IBRAHIM KALIFULLA, JJ.]
DELHI SPECIAL POLICE ESTABLISHMENT ACT,
1946:
A
B
c
s. 6-A - Constitutional validity of - Requirement of
approval of the Central Government to conduct inquiry or
investigation where the allegations of commission of an
D
offence under the PC Act, 1988 relate to the employees of
the Central Government of the level of Joint Secretary and
above - Held: Classification which is made in s. 6-A on the
basis of status in the Government service is not permissible
under Article 14 as it defeats the purpose of finding prima
E
facie truth into the allegations of graft, which amount to an
offence under the PC Act, 1988 - There cannot be sound
differentiation between corrupt public servants based on their
status because irrespective of their status or position, corrupt
public servants are corrupters of public power - The
F
classification made in s. 6-A neither eliminates public mischief
nor achieves some positive public good, rather it advances
public mischief and protects the crime-doer - There is no
rational basis to classify the two sets of public servants
differently on the ground that one set of officers is decision
G
making officers and not the other set of officers - If there is
an accusation of bribery, graft, illegal gratification or criminal
misconduct against a public servant, then the status of
offender is of no relevance - The result of the impugned
873
H
874
SUPREME COURT REPORTS
[2014] 6 S.C.R.
A
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 the CBI should
even start an inquiry or investigation against them or not -
There will be no c'onfidentiality and insulation of the
B
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 - As a necessary corollary, the
provision contained in s.26 (c) of the Act 45 of 2003 to that
c extent is also declared invalid - Prevention of Corruption Act,
1988 - Constitution of India, 1950 - Article 14 - Central
Vigilance Commission Act, 2003 - s.26(c).
s. 6A - Protection to a class of the Government officers
of the level of Joint Secretary and above - Reasonableness
D of classification - Held: The classification is not based on
intelligible differentia when one set of bureaucrats of Joint
Secretary level and above who are working with the Central
Government are offered protection u/s. 6-A while the same
level of officers who are working in the States do not get
E
protection though both classes of these officers are accused
of an offence under PC Act, 1988 and inquiry/investigation
into such a/legations is to be carried out - The provision in
s. 6-A, thus, impedes tracking down the corrupt senior
bureaucrats as without previous approval of the Central
F
Government, the CBI cannot even hold preliminary inquiry
much less an investigation into the a/legations - The
protection in s. 6-A has propensity of shielding the corrupt -
The object of s. 6-A, that senior public servants of the level of
Joint Secretary and above who take policy decision must not
G
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 - Thus, the object of s. 6-A itself
is discriminatory.
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI &
875
ORS.
CONSTITUTION OF IND/A, 1950:
A
Article 14 - Challenge to the constitutional validity of a law
enacted by the legislature - Held: Court to keep in view that
there is always a presumption of constitutionality of an
enactment, and a clear tran,sgression of constitutional B
principles must be shown - The two dimensions of Article 14
in its application to legislation and rendering legislation invalid
are discrimination, based on an impermissible or invalid
classification and excessive delegation of powers; conferment
of uncanalised and unguided powers on the executive,
whether in the form of delegated legislation or by way of C
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 D
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 - Legislation.
Article 14 - Reasonable classification - The Constitution E
permits the State to determine, by the process of classification,
what should be regarded as a class for purposes of legislation
and in relation to law enacted on a particulf1r subject - There
is bound to be some degree of inequality when there is
segregation of one class from the other - However, such F
segregation must be rational and not artificial or evasive - In
other words, the classification must not only be based on
some qualities or characteristics, which are to be found in all
persons grouped together and not in others who are left out
but those qualities or characteristics must have a reasonable G
relation to the object of the legislation - Differentia which is the
basis of classification must be sound and must have
reasonable relation to the object of the legislation - If the object
itself is discriminatory, then explanation that classification is
H
876
SUPREME COURT REPORTS
[2014] 6 S.C.R.
A
reasonable having rational relation to the object sought to be
achieved is immaterial.
PREVENTION OF CORRUPTION ACT, 1988:
Object of - Held: PC Act, 1988 is a special statute and
8
its preamble shows that it has been enacted to consolidate
and amend the law relating to the prevention of 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
C
because Prevention of Corruption Act, 19 as amended from
time to time was inadequate to deal with the offences of
corruption effectively - The new Act now seeks to provide for
speedy 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
D fabric of the society and corruption by public servants not only
leads to corrosion of the 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
E
to the national economy, national interest and image of the
country.
CENTRAL VIGILANCE COMMISSION ACT, 2003:
Object of - Discussed.
F
INVEST/GA TION:
Criminal justice system mandates that any investigation
into the crime should be fair, in accordance with law and
should not be tainted - It is equally important that interested
or influential persons are not able to misdirect or highjack the
G 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 equality under Article 14 - The argument that
rule of law is not above law and cannot be a ground for
H invalidating legislations overlooks the well settled position that
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI &
877
ORS.
rule of law is a facet of equality under Article 14 and breach A
of rule of law amounts to breach of equality under Article 14
and, therefore, breach of rule of law may be a ground for
invalidating the legislation being in negation of Article 14 -
Constitution of India, 1950 - Article 14.
B
Section 6-A of the Delhi Special Police Establishment
Act, 1946 (DSPE Act) requires the 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 C
of the level of Joint Secretary and above.
In the instant writ petitions, the constitutional validity
of Section 6-A was challenged. The questions which has
arisen for consideration in the instant appeal were: Can
classification be made creating a class of the government D
officers of the level of Joint Secretary and above level and
certain officials in public sector undertakings for the
purpose of inquiry/investigation into an offence alleged
to have been committed under the PC Act, 1988; can the
Legislature lay down different principles for investigation/ E
inquiry into the allegations of corruption for the public
servants who hold a particular position and is such
classification founded on sound differentia.
Since Section 6-A came to be inserted by Section
F
26(c) of the Central Vigilance Commission Act, 2003 (Act
45 of 2003), the constitutional validity of Section 26(c) was
also raised.
Allowing the writ petitions, the Court
G
HELD: 1. Central Vigilance Commission Act, 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 by certain categories
H
878
SUPREME COURT REPORTS
[2014] 6 S.C.R.
A 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.
B
Section 26 of the Act 45 of 2003 provides for amendment
of DSPE Act and clause (c) thereof enacts that after
Section 6, Sec-tion 6-A shall be inserted in the DSPE Act.
[Para 7] [904-F-H; 905-A]
c
I. R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1 : 2007
(1) SCR 706; State of Madras v. V.G. Row 1952 SCR 597;
Subramanian Swamy v. Manmohan Singh and Anr. (2012)
3 SCC 64: 2012 (3) SCR 52; State of Gujarat and Anr. v.
J.ustice R.A. Mehta(Retd.) and Ors. (2013) 3 SCC 1: 2013 (1)
0
SCR 1; State of Maharashtra v. Balakrishna Dattatrya,
Kumbhar (2012) 12 SCC 384: 2012 (9) SCR 601; Krishna
Mohan (P) Ltd. v. Municipal Corporation of Delhi and Ors.
(2003) 7 SCC 151: 2003 (1) Suppl. SCR 848; District
Registrar and Collector, Hyderabad and Anr. v. Canara Bank
E
and Ors. (2005) 1 sec 496: 2004 (5) Suppl. SCR 833 -
referred to.
2. Principles applicable to Article 14. 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
F
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 AmericanConstituti on, enjoins that equal protection shall be
G 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
circumstances. [Para 38] [919-C, E-F]
H
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI &
879
ORS.
Chiranjit Lal Chowdhuri v. Union of India & Ors. (1950)
A
SCR 869; State of Bombay & Anr. v. F. N. Balsara (1951)
SCR 682; State of West Bengal v. Anwar Ali Sarkar (1952)
SCR 284; Kathi Raning Rawat v. State of Saurashtra 1952
SCR 435; Lachmandas Kewalram Ahuja v. State of Bombay
1952 SCR 710; Syed Qasim Razvi v. State of Hyderabad & B
Ors. (1953) 4 SCR 589; Habeeb Mohamed v. State of
Hyderabad 1953 SCR 661; Kedar Nath Bajoria v. State of
West Bengal (1954) SCR 30; V.M. Syed Mohammad &
Company v. State of Andhra Pradesh (1954) SCR 1117;
Budhan Chaudhry & Ors. v. State of Bihar (1955) 1 SCR c
1045; Ram Krishna Dalmia v. Justice S.R. Tendolkar & Ors.
1959 SCR 279; Nagpur Improvement Trust and Anr. v. Vithal
Rao and Ors. (1973) 1 SCC 500: 1973 (3) SCR 39; Special
Courts Bill, 1978, In re, (1979) 1 SCC 380: 1998 (2) Suppl.
SCR 651; C.I. Emden v. State of U.P. (1960) 2 SCR 592;
Kangsari Haldar & Anr. v. State of West Bengal (1960) 2 SCR D
646; Jyoti Pershad v. Administrator for the Union Territory of
Delhi & Ors. (1962) 2 SCR 125; State of Gujarat & Anr. v.
Shri Ambica Mills Ltd., Ahmedabad & Anr. (1974) 3 SCR
760; Air India v. Nergesh Meerza and Ors. (1981) 4 SCC
335: 1982 (1) SCR 438; A. S. Krishna v. State of Madras E
1957 S.C.R. 399; D.S. Nakara and Ors. v. Union of India
(1983) 1SCC 305; E.P. Royappa v. State of T.N. and Anr.
(1974) 4 sec 3: 1974 (2) SCR 348 - relied on.
3. Court's approach Where there is challenge to the
F
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 G
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 H
880
SUPREME COURT REPORTS
[2014] 6 S.C.R.
A
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
B
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
c 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
0
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 !lubstitute their views on what the policy is. [Para
48] [930-A-F]
State of Karnataka v. Union of India and Anr. (1977) 4
E SCC 608: 1978 (2) SCR 1; State of Kera/a and Ors. v.
Travancore Chemicals and Manufacturing Co. and Anr.
(1998) 8 SCC 188: 1998 (2) Suppl. SCR 651; L. Chandra
Kumar v. Union of India and Ors. (1997) 3 SCC 261: 1997
(21 SCR 1186; Ku/dip Nayar and Ors. v. Union of India and
F
Ors. (2006) 7 SCC 1: 2006 (5) Suppl. SCR 1; Union of India
v. R. Gandhi, President, Madras Bar Association (2010) 11
SCC 1: 2010 (6) SCR 857; K. T. Plantation (P} Ltd. & Anr. v.
State of Karnataka (2011) 9 SCC 1: 2011 (13) SCR 636; G. C.
Kanungo v. State of Orissa (1995) 5 SCC 96: 1995 (1) Suppl.
G SCR 51 O; Indra Sawhney (2) v. Union of India and Ors. (2000)
1 SCC 168: 1999 (5) Suppl. SCR 229; Maneka Gandhi v.
Union of India and Anr. (1978) 1 SCC 248: 1978 (2) SCR
621; Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors.
(1981) 1 SCC 722: 1981(2)SCR 79; Malpe Vishwanath.
H Acharya and Ors. v. State of Maharashtra and Anr. (1998) 2
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI &
881
ORS.
SCC 1 :-1997 (6) Suppl. SCR 717; Mardia Chemicals Ltd.
A
and Ors. v. Union of India and Ors. (2004) 4 sec 311: 2004
(3) SCR 982; His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 225:
1973 (0) Suppl. SCR 1; Ashoka Kumar Thakur v. Union of
India and Ors. (2008) 6 SCC 1: 2008 (6) SCC 1; Natural
B
Resources A/location, In re, Special Reference No. 1 of 2012
(2012) 10 SCC 1: 2012 (9) SCR 311; State of A.P. and Ors.
v. McDowell & Co. and Ors. (1996) 3 SCC 709: 1996 (3) SCR
721; State of M.P. v. Rakesh Kohli and Anr. (20,12) 6 SCC
312: 2012 (6) SCR 661; Indira Nehru Gandhi v. Raj Narain C
1975 (Suppl.) SCC 1 : 1976 SCR 347; Matajog Dobey v. H.
C. Bhari (1955) 2 SCR 925; Naga People's Movement of
Human Rights v. Union of India (1998) 2 SCC 109: 1997 (5)
Suppl. SCR 469; Manhar Lal Bhogilal Shah v. State of
Maharashtra (1971) 2 SCC 119: 1971 (0) Suppl. SCR 359;
D
Union of India & Ors. v. No.664950 JM Havildarl Clerk SC
Bagari (1999) 3 SCC 709: 1999 (2) SCR 690; N.B.Khare
(Dr.) v. State of Delhi 1950 SCR 519; Mafatlal Industries Ltd.
& Ors. v. Union of India & Ors. (1997) 5 SCC 536: 1996 (10)
Suppl. SCR 585; Sushi/ Kumar Sharma v. Union of India & E
Ors. (2005) 6 sec 281: 2005 (1) Suppl. SCR 730; ©1980
Supp SCC 92: 1980 SCR 380; V. C. Shukla v. State (Delhi
Administration) 1980 Supp SCC 249: 1980 SCR 500;
Pannalal Binjraj & Anr. etc., etc. v. Union of India & Ors. 1957
SCR 233; State of Bihar & Ors. v. Bihar Distillery Ltd. & Ors.
F
(1997) 2 SCC 453: 1996 (9) Suppl. SCR 479; State of Bihar
& Ors. v. Kripalu Shankar & Ors. (1987) 3 SCC 34: 1997 (2)
SCR 291; P. Sirajuddin, etc. v. State of Madras, etc. (1970)
1 SCC 595 : 1970 (3) SCR 931; S.P. Bhatnagar v. State of
Maharashtra (1979) 1 SCC 535: 1979 (2) SCR 875; Major
S. K. Kale v. State Of Maharashtra (1977) 2 SCC 394: 1977
G
(2) SCR 533; C. Chenga Reddy & Ors. v. State of A.P. (1996)
10 sec 193; 1996 (3) Suppl. SCR 479; Abdulla
Mohammed Pagarkar v. State (UT of Goa, Daman & Diu)
(1980) 3 sec 110: 1980 (1) SCR 604; R.S. Nayak v. A.R.
Antu/ay (1984) 2 SCC 183: 1971 (0) Suppl. SCR 834; Patel
H
882
SUPREME COURT REPORTS
[2014] 6 S.C.R.
A
Laljibhai Somabhai v. State of Gujarat (1971) 2 SCC 376:
2005 (2) SCR 708; Iqbal Singh Marwah & Anr. v. Meenakshi
Marwah & Anr. (2005) 4 SCC 370: 2005 (2) SCR 708 -
referred to.
B
Heller v. Doe 509 U.S. 312 (1993) - referred to.
4. Consideration
4.1. The impugned provision, viz;, Section 6-A came
to be enact~d after the decision of this Court in *Vineet
C Narain. The three-Judge Bench of this Court in *Vineet
Narain was directly concerned with constitutional validity
of the Single Directive No. 4.7(3). This Court declared
Single Directive 4.7(3)(1) invalid. Section 6-A replicates
Single Directive 4.7(3)(i). The only change is that
D executive instruction is replaced by the legislation. (Paras
50, 54, 55] (930-H; 931-A; 934-D-E]
E
*Vineet Narain vs. Union Of India (1998) 1 SCC 226 -
relied on.
4.2. The Constitution permits the State to determine,
by the process of classification, what should be regarded
as a class for purposes of legislation and in relation to
law enacted on a particular subject.There is bound to be
some degree of inequality when there is segregation of
F
one class from the other.However, such segregation must
be rational and not artificial or evasive. In other words,
the classification must not only be based on some
qualities or characteristics, which are to be found in all
persons grouped together and not in others who are left
G out but those qualities or characteristics must have a
reasonable relation to the object of the legislation.
Differentia which is the basis of classification must be
sound and must have reasonable relation to the object
of the legislation. If the object itself is discriminatory, then
H explanation that classification is reasonable having
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI &
883
ORS.
rational relation to the object sought to be achieved is A
immaterial. (Para 57] (935-C-F]
4.3. Classification which is made in Section 6-A on
the basis of status in the Government service is not
permissible under Article 14 as it defeats the purpose of B
finding prima facie truth into the allegations of graft,
which amount to an offence under the PC Act, 1988.There
cannot be sound differentiation between corrupt public
servants based on their status because irrespective of
their status or position, corrupt public servants are C
corrupters of public power.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 D
to an offence under the PC Act, 1988.Corruption is an
enemy of the nation and tracking down corrupt public
servants and punishing such persons is a necessary
mandate of the PC Act, 1988. It is difficult to justify the
classification which has been made in Section 6-A E
because the goal of law in the PC Act, 1988 is to meet
corruption cases with a very strong hand and all public
servants are warned through such a legislative measure
that corrupt public servants have to face very serious
consequences. The purpose of a law may be either the
F
elimination of a public mischief or the achievement of
some positive public good. The classification made in
Section 6-A neither eliminates public mischief nor
achieves some positive public good. On the other hand,
it advances public mischief and protects the crime-doer. G
The provision thwarts an independent, unhampered,
unbiased, efficient and fearless inquiry I investigation to
track do_wn the corrupt public servants. [Paras 58, 59]
(935-G-F; 936-A-F]
H
884
SUPREME COURT REPORTS
[2014] 6 S.C.R.
A
5. The -essence of police investigation is skilful
inquiry and collection of material and evidence in a
manner by which the potential culpable individuals are
not forewarned.The prevjous approval from the
Government necessarily required under Section 6-A
B 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? A preliminary enquiry is intended to
C ascertain whether a prima facie case for investigation is
made out or not. If CBI is prevented from holding a
preliminary enquiry, at the very threshold, a fetter is put
to enable the CBI to gather relevant material.As a matter
of fact, the CBI is not able to collect the material even to
o move the Government for the purpose of obtaining
previous approval from the Central Government. [Para
60) [936-G-H; 937-A-B]
6. As per the CBI Manual, (Paragraph 9.10) a
preliminary enquiry relating to allegations of bribery and
E corruption should be limited to the scrutiny of records
and interrogation of bare minimum persons which being
necessary to judge whether there is any substance in the
allegations which are being enquired into and whether
the case is worth pursuing further or not. Even this
F
exercise of scrutiny of records and gathering relevant
information to find out whether the case is worth pursuing
further or not is not possible. In the criminal justice
system, the inquiry and investigation into an offence is
the domain of the police. The very power of CBI to
G enquire and investigate into the 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. [Para 61) [937-C-E]
7 .1. In *Vineet Narain in respect of Single Directive
H 4.7(3)(i), the Court said that every person accused of
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI &
885
ORS.
committing the same offence is to be dealt with in the
A
same manner in accordance with law, which is equal in
its application to everyone. The sai~ observation in
*Vineet Narain, equally applies to Section 6-A. In *Vineet
Narain, this Court did not accept the argument that the
Single Directive is applicable only to certain class of B
officers above the specified level who are decision
making officers and a distinction can be made for them
for the purpose of investigation of an offence of which
they are accused. No distinction can be made for certain
class of officers specified in Section 6-A who are c
described as decision making officers for the purpose of
inquiry/investigation into an offence under the PC Act,
1988. There is no rational basis to classify the two sets
of public servants differently on the ground that one set
of officers is decision making officers and not the other D
set of officers. If there is an accusation of bribery, graft,
illegal gratification or criminal misconduct against a
public servant, then the status of offender is of no
relevance. Where there are allegations against a public
servant which amount to an offence under the PC Act,
1988, no factor pertaining to expertise of decision making
E
is involved. Yet, Section 6-A makes a distinction. It is this
vice which renders Section 6-A violative of Article 14.
Moreover, the result of the impugned legislation is that
the very group of persons, namely, high ranking
bureaucrats whose misdeeds and illegalities "1ay have to
be inquired into, would decide whether the CBI should
even start an inquiry or investigation against them or not.
F
'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
G
from the Central Government which would involve leak.;
and dis'closures at every stage. [Para 63] [938-G-H; 939A-F]
7.2. It is true that sub-Section (2) of Section 6-A has
H
886
SUPREME COURT REPORTS
[2014] 6 S.C.R.
A 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
0
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
E 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]
8.Way back in 1993, the Central Government
constituted a Committee under the Chairmanship of the
F 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]
H [940-D-F]
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]
Vineet Narain & Ors. v. Union of India & Anr. (1998) 1
/ SCC 226: 1997 (6) Suppl. SCR 595 ·- relied on.
F
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
0 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
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
H inadequate to deal with the offences of· corruption
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,
0
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]
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 decisionmaker 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
0
that object may not stand the test of Article 14. [Paras 86,
90] [953-E-H; 954-A-C]
Centre for Public Interest Litigation & Ors. v. Union of
India & Ors. (2012) 3 SCC 1: 2012 (3) SCR 147; Manohar
Lal Sharma v. Principal Secretary & Ors. (2014) 2 SCC 532;
E
K. Veeraswami v. Union of India and Ors. (1991) 3 SCC 655:
1991 (3) SCR 189 - relied on.
13. Section 6-A does not satisfy the well-settled tests
in the context of Article 14 and is not capable of
F severance for the purposes of Section 13(1)(d)(ii) and (iii).
Section 6-A(1 ), which requires approval of the Central
Government to conduct any inquiry or investigation into
any offence alleged to have been committed under the
PC Act, 1988 where such allegation relates to (a) the
G 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
H controlled by the Government, is invalid and violative of ·
DR. SUBRAMANIAN SWAMY v. DIRECTOR, CBI & 893
ORS.
Article 14 of the Constitution. As a necessary corollary,
A
the provision contained in Section 26 (c) of the Act 45 of
2003 to that extent is also declared invalid. [Paras 96, 98]
[958-E, G-H; 959-A-B]
Case Law Reference :
B
1997 (6) Suppl. SCR 595
Relied on
Para 5
2007 (1) SCR 706
Referred to
Para 12
2012 (3) SCR 147
Referred to
Para 13
c
(2014) 2 sec 532
Referred to
Para 13
1952 SCR 597
Referred to
Para 15
(1983) 1 sec 305
Reied on
Para 15
2000. (1) SCR 579
Relied on
Para 16
D
2012 (3) 5CR 52
Referred to
Para 16
2013 (1) SCR 1
Referred to
Para 16
2012 (9) SCR 601
Referred to
Para 16
E
1998 (2) Suppl.