When a law replacing an invalid executive order retains the same classification that was held to violate the constitutional norm of equality, it has to be struck down. It was only natural that the Supreme Court should declare unconstitutional Section 6-A of the Delhi Special Police Establishment Act that requires prior approval of the Centre before the Central Bureau of Investigation (CBI) can begin an inquiry or investigation against officers of the Union Government in the rank of Joint Secretary and above for the same reason that it invalidated the government’s ‘Single Directive’ in Vineet Narain (1997). The section was introduced by Parliament in 2003 to restore the ‘Single Directive’, a set of instructions to the CBI on the modalities of holding an enquiry. In yet another verdict that insulates the investigating agency from dependence on government approval at every stage, the Court has seen through the distinction made between officers based on their rank alone. Apart from there being no reasonable basis to treat corrupt public servants of a certain rank differently from those below them, the Court has given cogent and practical reasons too: that Section 6-A is destructive of the objective of the Prevention of Corruption Act as it blocks the truth from surfacing, protects those who commit crimes thwarts independent investigation and provides a forewarning to corrupt officers as soon as allegations are made against them.
The government argued in vain, as it did in defence of the Single Directive earlier, that officers of the rank of Joint Secretary and above are “decision-making” officials who required protection against malicious or vexatious allegations. In the absence of such protection, it was contended, officials may tend to make no decisions, or limit themselves to ‘safe decisions’. However, as the amicus curiae pointed out to the Court, there was no known instance of harassment of officials between 1997 and 2003, the period in which no such prior approval was required. Further, other provisions requiring sanction from the competent authority before commencing prosecution remain intact. The real mischief in the provision, the Court has noted, is that the very group of officers who may be the target of the inquiry get to decide whether the probe should be allowed or not. It has ruled that where it could be inferred that a corrupt act had taken place, but there is no direct evidence, the ‘expertise’ to decide whether to begin a probe should remain with the CBI, and not with the government. The verdict thus strengthens the agency in a way the legislature has failed to do over the years. It has restored what it calls the ‘signature tune’ of Vineet Narain: “however high you may be, the law is above you.”