The Supreme Court on Wednesday observed that the provision on sanction for prosecution was impeding the anti-corruption law and asked the Centre why it was protecting the top bureaucracy by having it on the statute.

A Constitution Bench of Justices R.M. Lodha, A.K. Patnaik, S.K. Mukhopadhaya, Dipak Misra and Ibrahim Kalifulla is hearing petitions filed by BJP leader Subramanian Swamy and the Centre for Public Interest Litigation, challenging the constitutional validity of Section 6A of the Delhi Special Police Establishment Act, which protects officers in the rank of Joint Secretary and above from any CBI inquiry in cases of corruption.

Even as Additional Solicitor-General L. Nageswara Rao was defending the provision, Justice Lodha observed: “Sorry to say but the legislature has not done a responsible job. In the process, you are protecting the entire top bureaucracy. This is class legislation. You are creating a class of suspects in corruption cases.” 

Mr. Rao contended that Section 6A was required to protect senior bureaucrats involved in policy decisions from vexatious litigation. 

Justice Lodha referred to provisions of the Prevention of Corruption Act and said only two of the eight offences mentioned in the law related to policymaking decisions. “If a complaint of bribery comes against a Joint Secretary, does that fall under policymaking decision? Under the PCA, sanction is required to file a charge sheet against all government officers, irrespective of their designation. Then why is there double protection to officers in the rank of Joint Secretary and above? If a Joint Secretary was responsible for taking decisions, why should a junior be prosecuted for no fault of his?”  

Mr. Rao said courts could not strike down a provision for being arbitrary to substitute its own wisdom for that of the legislature as long as there was legislative competence.

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