MANOHAR LAL SHARMA v. THE PRINCIPAL SECRETARY AND ORS.

A officers covered by Section 6A, we hardly find any merit in the submission of the learned Attorney General that requirement of approval under Section 6A cannot be waived even in Court- monitored investigations and inquiries.

55. The argument of the learned Attorney General that B Section 6A is in the nature of procedure established by law for the purposes of Article 21 and where consequences follow in criminal law for an accused, the .Court is not at liberty to negate the same even in exercise of powers under Article 32 or Article 142 oveFlooks the vital aspect that Court monitoring of the inquiry/investigation conducted by the CBI is itself a very strong check on the CBI from misusing or abusing its power of inquiry/ investigation. The filtration mechanism which Section 6A provides to ensure that the senior officers at the decision making level are not subjected to frivolous inquiry is achieved as the constitutional court that monitors the inquiry/investigation by CBI acts as guardian and protector of the rights of the individual and, if necessary, can always prevent any improper act by the CBI against senior officers in the Central Government when brought before it. E

56. When Court monitors the investigation, there is already departure inasmuch as the investigating agency informs the Court about the progress of the investigation. Once the constitutional court monitors the inquiry/investigation which is only done in extraordinary circ,umstances and in exceptional situation having regard to the larger public interest, the inquiry~ investigation into the crime under the PC Act against public servants by the CBI must be allowed to have its course unhindered and uninfluenced and the procedure contemplated by Section 6A cannot be put at the level which impedes exercise of constitutional power by the Supreme Court under Articles 32, 136 and 142 of the Constitution. Any other view in this regard will be directly inconsistent with the power conferred on the highest constitutional court.

MANOHAR LALSHARMAv. PRINCIPAL SECRETARY 1129 [R.M. LODHA, J.]

57. In the case of Committee for Protection of Democratic A Rights8, the Constitution Bench of this Court has held that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of the State without the consent of the State will neither B impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. In this regard, it is relevant to refer to the conclusions recorded by the Constitution Bench ii\. clauses vi and vii, paragraph 68 of the Report which read as under: c "68. (i) to (v) ........ .

(vt) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A and Entry 80 .of List I on the other, an investigation by another agency is permissible· -0' subject to grant of consent by the State concerned, there is no reas.on as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union could .exercise in terms of the provisions of the statute. In our opinion, exercise of such power by E the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the Court fails to grant relief, it would be failing in its constitutional duty. F (vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise . with.in the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction G of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of. the Special Police Act. Irrespective of there being any statutory provision acting as a restriction H

• 1130 SUPREME COURT REPORTS (2013] 17 S.C.R.

A on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the High pour!, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure."

58. Learned Atforney General with reference to the above judgment submitted that the principle of law laid down in the case of Committee for Protection of Democratic. RightsB cannot be extended to requirement of prior approval under Section 6A. He submitted that Committee for Protection of Democratic Rights" was concerned with Section 6 of the DSPE Act while the present case is concerned with Section 6A which is totally different provision. Learned Attorney General has argued that the need for consent of the State Government before investigation is carried out by the CBI in terms of Section 6 of the DSPE Act is a requirement that flows from the federal structure of the Constitution, because police and law and order are State subjects. On the other hand, he argues that the need for prior approval under Section 6A is in the nature of protection conferred on a particular cadre of persons, which is necessitated by the need of administration. Therefore, no parallel can be drawn between two provisions and the law laid down in respect of one provision cannot be extended to the other.

59. Learned Attorney General is right that the two provisions, namely, Section 6 and Section 6A are different provisions and they operate in different fields, but the principle of law laid down in respect of Section 6, in our view, can be extended while considering applicability of Section 6A to the Court-monitored investigations. If Section 6 necessitates the prior sanction of the State Government before investigation is carried out by the CBI in terms of that provision and the principle of law laid down by the Constitution Bench of this Court is that H

MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY . 1131 [R.M. LODHA, J.] the constitutio·nal courts are empowered to direct the A / investigation of a case by CBI and in such cases no prior · sanction of the State Government is necessary under Section 6 of the DSPE Act, there is no reason why such principle is .not extended in holding that the approval of the Ce.ntral Government is not oecessary under Section. 6A of the DSPE B Act in a matter where the inquiry/investigation into the crime under the PC Act is being monitored by the Court. It is the duty of this Court that anti-corruption laws are interpreted and worked out in such a fashion that helps in minimizing abuse of public office for private gain. c

60. Learned Attorney General heavily relied upon the observations made in paragraph 28 by the Constitution Bench of this Court in K. Veeraswami4. He, particularly, referred to the following observations with emphasis on the highlighted portion: D · "28 ....... Section 6 is primarily concerned to see that prosecution for the specified offences shaJI not commence without the sanction of a competent authority. That does not mean that the Act was intended to condone the offence of bribery and corruption by public servant. Nor it was meant to afford protection to public servant from criminal prosecution for such offences. It is only to protect the honest public servants from frivolous and vexatious prosecution. The competent au.thority has to examine independently and impartially the material on record to form his own opinion whether the offence alleged is frivolous or vexatious. The competent authority may refuse sanction for prosecution if the offence alleged has no material to support or it is frivolous or intended to harass the honest officer. But he cannot refuse to grant sanction if thematerial collected has made out the commission of the offence alleged against the public servant. Indeed he is duty bound to grant sanction if the material collected lend credence to the offence complained of. There seems to be another reason for taking away the discretion of the H

1132 SUPREME COURT REPORTS [2013] 17 S.C.R.

A investigating agency to prosecute or not to prosecute a public servant. When a public servant is prosecuted for an offence which challenges his honesty and integrity, the issue in such a case is not only between the prosecutor and the offender, but the State is also vitally concerned B with it as it affects the morale of public servants and also the administrative interest of the State. The discretion to prosecute public servant is taken away from the prosecuting agency and is vested in the authority which is competent to remove the public servant. The authority competent to remove the public servant would be in a c better position than the prosecuting agency to assess the material collected in a dispassionate and reasonable manner and determine whether sanction for prosecution of a public servant deserves to be granted or not."

D 61. In Vineet Narain'. this Court distinguished the above observations in paragraphs 34 and 35 of the report which read as under:

"34. The other decision of this Court is in K. Veeraswami. E That was a decision in which the majority held that the Prevention of Corruption Act applies even to the Judges of the High Court and the Supreme Court. After taking that view, it was said by the majority (per Shelly, J.) that in order to protect the independence of judiciary, it was essential that no criminal case shall be registered under Section F 154 CrPC against a Judge of the High Court or of the Supreme. Court unless the Chief Justice of India is consulted and he assents to such an action being taken. The learned Attorney General contended that this decision is an authority for the proposition that in case of high G officials, the requirement of prior permission/sanction from a higher officer or Head of the Department is permissible and necessary to save the officer concerned from harassment caused by a malicious or vexatious prosecution. We are unable to accept this submission. H

MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1133

[R.M. LODHA, J.]

35. The position of Judges of High Courts and the A Supreme Court, wh.o are constitutional functionaries, is distinct, and the independence of judiciary, keeping it free from any extraneous influence, including that from executive, is the rationale of the decision in K. Veeraswami. In strict terms the Prevention of Corruption B Act, 1946 could not be applied to the superior Judges and, therefore, while bringing those Judges within the purview of the Act yet maintaining the independence of judiciary, this guideline was issued as a direction by the Court. The feature of independence of judiciary has no application to c the officers covered by the Single Directive. The need for independence of judiciary from the executive influence does not arise in the case of officers belonging to the executive. We have no doubt that the decision in K. Veeraswami has no application to the wide proposition D ·advanced by the learned Attorney General to support the Single Directive. For the same reason, reliance on that decision by the IRC to uphold the Single Directive is misplaced."

62. In Vineet Narain', this Court clarified that the decision in K. Veeraswami4 has no application to the officers covered by the single directive. In other words, the observations made by this Court in K. Veeraswami4 were held to be confined to. the Judges of the High Courts and the Supreme Court who are constitutional functionaries and their position being distinct and different from the government officers.

63. The referral order in Subramanian Swamy (Dr.)7 , records the argument advanced on behalf of the Central Government that the view in Vineet Narain1 with regard to the observations in K. Veeraswami4 case was not correct but, in our view, recording the contention of the Central Government in the referral order and the pendency of constitutionality of Section 6A before the Constitution Bench do not mear;i' that what has been said in Vineet Narain1 about the observations H

1134 SUPREME COURT REPORTS [2013] 17 S.C.R.

A in paragraph 28 of K. Veeraswami4 stand obliterated.

64. The fact that the investigation is monitored by the constitutional court is itself an assurance that investigation/inquiry by the CBI is not actuated with ulterior motive to harass any B public servant and the investigating agency performs its duties and discharges its responsibility of fair and impartial investigation uninfluenced by extraneous considerations.

65. In light of the above discussion, our answer to the question is in the negative and we hold that the approval of the C Central Government is not necessary under Section 6A of the DSPE Act in a matter where inquiry/investigation into the crime under the PC Act is being monitored by th is Court. Th is position holds good in cases which are directed by the Court to be registered and the inquiry/investigation thereon is actually being D monitored by this Court. ·

ORDER

MADAN B. LOKUR, J. 1. The question for consideration relates to the applicability of Section 6A of the Delhi Special E Police Establishment Act, 1946 (hereinafter referred to as the Act) to an inquiry or investigation monitored by a constitutional court. In my opinion, this section has no application to a constitutional court monitored inquiry or investigation. While I · agree With" the same conclusion arrived at by Brother Justice F Lodha, my reasons are quite different.

2. Section 6A of the Act reads as under:

"Approval of Central Government to conduc:t inquiry ·or investigation.-(1) The Delhi SpE1cial Police G 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 - H

MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1135

[MADAN B. LOKUR, J.]

(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 neces,Sary for case involving arrest of a person on the spot rn<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)." D

3. At the outset, one must appreciate that a constitutional court monitors an investigation by the State police or the Central Bureau of Investigation (for short the CBI) only and only in public interest. That is the leitmotif of a constitutipri,al court monitored investigation. No constitutional court 'desires' to monitor an E .. inquiry or an investigation (compendiously referred to hereafter as an investigation) nor does it encourage the monitoring of any investigation by a police authority, be it the State police or the CBI. Public interest is the sole consideration and a constitutional court monitors an investigation only when circumstances compel it to do so, such as (illustratively) a lack of enthusiasm by the investigating officer or agency (due to 'pressures' on it) in conducting a proper investigation, or a lack of enthusiasm by the concerned Government in assisting the investigating authority to arrive at the truth, or a lack of interest by the investigating authority or the concerned Government to take the investigation to its logical conclusion for whatever reason, or in extreme cases, to hinder the investigation.,

4. Having made this position clear, the present concern is only with respect to an investigation conducted by the CBI into H

1136 SUPREME COURT REPORTS [2013) 17 S.C.R.

A the allocation of coal blocks, the monitoring of that investigation by this Court and the impact of Section 6A of the Act on the investigation.

Background - The Single Directive B

5. Section 6A of the Act was brought on the statute book with effect from 11th September 2003. Prior thereto, the sum and substance of Section 6A of the Act was in the form of a 'Single Directive' issued by the executive Government. The Single Directive protected, inter alia, a class of officers from C being investigated by the CBI or in the registering of a case against that class of officers. This was through a provision requiring prior sanction of 38 the Secretary of the concerned Ministry or Department before the CBI undertakes an investigation against an officer of the rank of a Joint Secretary D or above. The Single Directive made it clear that "Without such -sanction, no inquiry shall be initiated by the SPE (Special Police Establishment)." The relevant extract of the Single Directive has been quoted by Brother Justice Lodha and it is not necessary to repeat it. E

6. The Single Directive was the subject of challenge in Vineet Narain v. Union of India, (1998) 1 SCC 226. This Court struck it down, inter a/ia, on three grounds that are best expressed in the words of this Court:

F· (i) "The learned Attorney General contended that this decision' is an authority for the proposition that in case of high officials, the requirement of prior permission/sanction from a higher officer or Head of the Department is permissible and necessary to save the officer concerned G from harassment caused by a malicious or vexatious prosecution. We are unable to accept this submission.

" ....... The feature of independence of judiciary has no

H 1. K. Veeraswai v. Union of India, (1991) 3 SCC 655.

' MANOHAR LAL SHARMA v.PRINCIPAL SECRETARY 1137 [MADAN B. LOKUR, J.]

application to the officers covered by the Single Directive. A The need for independence of judiciary from the executive influence does not arise in the case of officers belonging to the executive. We have no doubt that the decision in K. Veeraswami has no application to the wide proposition advanced by the learned Attorney General to support the B Single Directive." [paragraph 34 and 35 of the Report].

(ii) "In the absence of any statutory requirement of prior permission or sanction for investigation, it cannot be imposed as a•condition precedent for initiation of the investigation once jurisdiction is conferred on the CBI to · investigate the offence by virtue of the notification under Section 3 of the Act." [paragraph 43 of the Report].

(iii) "The law does not classify offenders differently for treatment thereunder, including investigation of offences and prosecution for offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordanc\e with law, which is equal in its application to everyone." [paragraph 44 of the Report]. E

7. Among other things, this Court also considered a Report given by an Independent Review Committee (IRC) constituted by the Government of India by an order dated 8th September 1997 and noted one of its observations in the preface to its Report, namely, F

"In the past several years, there has been progressive increase in allegations of corruption involving public servants. Understandably, cases of this nature have attracted heightened media.and public attention. A general G impression appears to have gained ground that the Central investigating agencies concerned are subject to extraneous pressures and have been indulging in dilatory tactics in not bringing the guilty to book. The decisions of H

1138 SUPREME COURT REPORTS [2013] 17 S.C.R.

A higher courts to directly monitor investigations in certain cases have added to the aforesaid belief."

8. Unfortunately, rather than make a serious attempt to consider the Report or the views of this Court, the Single B Directive was given a fresh lease of life, and a statutory one at that, by enacting Section 6A in the Delhi Special Police Establishment Act, 1946.

9. The justification for the enactment was the recommendations contained in the Report of the Joint C Committee of both Houses of Parliament set up to examine the provisions of the Central Vigilance Commission Bill, 1999. In its Report presented to Parliament on 22nd November 2000 the Joint Committee had this to say:

D "41. The Committee note that many witnesses who appeared before the Committee had expressed the need to protect the bona fide actions at the decision making level. At present there is no provision in the Bill for seeking prior approval of the Commission or the head of the Department etc. for registering a case against' a person E of the decision making level. As such, no protection is available to- the persons at the decision making level. In this regard, the Committee note that earlier, the prior approval of the Government was required in the form of a 'Single Directive' which was set aside by the Supreme F Court. The Committee feel that such a protection should be restored in the same format which was there earlier and desire that the power of giving prior approval for taking action against a senior officer of the decision making level should be vested with the Central Government by making G appropriate provision in the Act. The Committee, therefore, recommend that Clause 27 of the Bill be accordingly amended so as to insert a new section 6A to the DSPE Act, 1946, to this effect."

MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1139

[MADAN B. LOKUR, J.)

10. Furthermore, in the debate in Parliament relating to the A Bill, the Union Law Minister stated that the rationale behind the Single Directive was "that those who are in senior decision- making positions, those who have to exercise discretion, those who have to take vital decisions, could be the targets of frivolous complaints." Justifying Section 6A of the Act, the Hon'ble B Minister went on to say:

"Do we allow those complaints against them to go on and those people to be subjected to all these? Or, do we have · some screening· mechanism whereby serious complaints would be investigated and frivolous complaints would be thrown out? And this is how the single-point directive was born, and in 1988, they replaced the senior civil servants iri the senior decision-making positions by saying "Joint .Secretaries and above'. And, if you were to say that there is no protection to be given to you, when you take all the decisions, when you make all the discretions, and anybody can file a complaint, and an inspector or the CBI or the police can raid your house any moment, if this elementary protection is not to be given to the senior decisionmakers, you may well have a governance where instead of tendering honest advice to political executives, a very safe, non-committal advice is going to be given."

11. It is under these circumstances that Section 6A of the Act replaced the Single Directive. F

12. In his written submissions, learned Attorney-General summed up the discussion by saying that Section 6A is intended "to provide a screening mechanism to filter out frivolous or motivated investigation that could be initiated against senior officers to protect them from harassment and to G enable them to take decisions without fear."

·Cause for the present discussion

13. Why has the applicability of Section 6A of the Act come H

1140 SUPREME COURT REPORTS [2013] 17 S.C.R.

A up for discussion? Prior to the present case, there was a general outcry that allocations of coal blocks for mining and exploitation were arbitrarily made in various parts of the country to private players which in effect amounted to distribution of largesse by the Central Government to these private players. B The financial implications of the allocations came under the scrutiny of the Comptroller and Auditor General of India (C&AG) and, based on the Report submitted by the C&AG and tabled in Parliament on 16th August 2012, some believed that the allocations were not made with bona fide motives and that the whole gamut of allocations ought to be impartially investigated by the CBI. Although the CBI had begun investigations on the basis of directions issued by the Central Vigilance Commission, •it was perceived that the CBI was 'going.slow' or not actively investigating the allegations perhaps with a view to protect some powerful vested interest. It is under these circumstances that public interest litigation was initiated in this Court. _Given the importance of the case and the issues ~nvolved, this Court decided, in the larger public interest, to monitor the investigations being conducted by the CBI.

E 14. While the matter of allocations is being considered on merits, one of the issues that has arisen is with regard to the interpretation of Section 6A of the Act since it was apprehended by the petitioners that despite this Court monitoring the investigations, the Central Government could stall them by declining to give.previous approval to the CBI to carry out an inquiry or conduct an investigation into the allegations since officers of the level of Joint Secretary and above would be involved.

15. The issue got precipitated when it was brought to our notice through an application filed by the CBI that previous approval sought by it (to examine a particular officer) was granted by the Central Government only after some clarifications were given and that too after a lapse of three

MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1141

[MADAN B. LOKUR, J.]

months. 2 This is what was said by the CBI in paragraph 8 of its application:

"8. It is relevant to mention that prior to the passing of order dated 08.05.2013, a request had been made vide letter dated 06.03.2013 for approval under Section 6A in three of the RC's. The said approval was initially declined on 22.05.2013. However, after sending a detailed report, sanction was granted by the Government and received by the Respondent no.3 on 12.06.2013."

16. This request for previous approval was i'n sharp contrast to the submission earlier made by the CBI in Centre for Public Interest Litigation v. Union of lndia 3 when it had submitted (with reference to Section 6A of the Act} that "as the investigation was directed by this Court, grant of approval/ permission is not necessary and the CBI shall investigate into. D the allegations as per law." The ehange in stance over the years was highlighted before us by the petitioners who perceived this to be an instance of 'pressure' put on the CBI. ~ ' . Submissions E

17. Learned·Attorney-General submitted that though the requirement of previous approval under Section 6A of the Act may seem onerous to an investigating agency or a public interest litigant, its rigour has undergone substantial slackening and that this ought to meet the requisites of a nonpartisan F investigation by the CBI. Reference was made to the· recommendations given in March 2011 by a Group of Ministers which dealt, inter alia, with the "relevance/need for Section 6A of the Delhi SpeCial Police Establishment Act, 1946". The recommendations were accepted by the Central Government G

2. I.A. No. 14091 of 2013 in Writ Petition (Crt) No. 120 of 2012 filed on 8th July 2013. '3. WP (C) Nc1. 11550 of 2009-ori:ter dated 4.4.2011 passed by the Delhi High Court. · H

1142 SUPREME COURT REPORTS [2013] 17 S.C.R.

A and Office Memorandum No. 372/19/2011-AVD-ll (Part-I) dated 26th September, 2011 was issued. The relevant extract of the Office Memorandum reads as follows:-

. "The undersigned is directed to state that the provision of section 6A of the DSPE Act, 1946 provides B for safeguarding senior public officials against undue and vexatious harassment by the investigating agency. It had been observed that the requests being made by the investigating agency under said provision were not being accorded due priority and the examination of such c proposals at times lacked objectivity. The matter was under consideration of the Group of Ministers constituted to consider measures that can be taken by the Government to tackle Corruption.

D The Government has accepted the following recommendation of the Group of Ministers, as reflected in para 25 of the First Report of the Group of Ministers:-

(a) The competent authority shall decide the matter within three months of receipt of request E accompanied with relevant documents.

(b) The competent authority will give a Speaking Order, giving reasons for its decision.

F (c) In the event a decision is taken to refui;e permission, the reasons thereof shall be put up to the next higher authority for information withi)l one week of taking the decision.

(d) Since section 6A specifically covers officers of the G Central Government, above the rank of Joint Secretary, the competent authority in these cases will be the Minister in charge in the Government of India. In such cases, intimation of refusal to grant permission along with reasons thereof, will have to H

MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1143

[MADAN B. LOKUR, J.]

be put up to the Prime Minister. A

The above decision of the Government is brought to the notice of all Ministries/Departments for due adherence and strict compliance."

18. Learned Attorney-General also submitted that apart from the safeguards introduced by the Office Memorandum, the constitutional courts always have the power of judicial review if previous approval for investigation is withheld for collateral reasons. He submitted that, if necessary, some additional safeguards may also be incorporated by this Court, including that in the event a decision for granting previous approval is not taken within a specified period, a default clause of a deemed previous approval would automatically apply.

19. He justified giving protection to senior officers, who are decision makers, on the ground that the CBI will have only one side of the story before it embarks on an investigation. The senior Government functionary sought to be investigated would not even have a hearing before investigations commence. Reliance was placed on P. Sirajuddin v. The State of Madras, E (1970) 1 sec 595 to submit that if baseless allegations are made against senior Government officials, it would cause incalculable harm not only to the officer in particular but to the department that he belonged to, in general. The following passage was relied upon: F "Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the G allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the H

1144 SUPREME COURT REPORTS [2013] 17 S.C.R.

A officer in particular but to the department he belonged to, in general."

20. It was also submitted that the fact that an investigation is being monitored by a constitutional court will ensure that the B Central Government does not withhold granting previous approval for collateral reasons. It was submitted that there is a presumption that official acts are performed lawfully and it is only to protect a decision maker from undue harassment that Section 6A has been introduced in the Act. Protection of honest public servants from frivolous and vexatious complaints was emphasized by the learned Attorney~General.

21. The learned Attorney-General made a concession to the effect that in the event of the CBI conducting an enquiry, as opposed to an investigation into the conduct of a senior government officer, no previous approval of the Central · Government is required since an enquiry does not have the same adverse connotation that an investigation has.

Discussion

E 22. Some of the safeguards suggested by the learned Attorney-General find a mention in Vineet Narain. However, these were not specifically accepted or rejected while considering the validity of the Single Directive only because this Court held that the Single Directive had been issued without F any legislative sanction and it amounted to interdicting the investigations.

23Copy pinpoint23. No doubt the rigour of Section 6A of the Act has already been diluted by the issuance of the Office G Memorandum dated 26th September 2011. But the question is this: ls.there a need for a further dilution of ~ection 6A of the Act in respect of a constitutional court monitored inve_stigation? Is it necessary for the CBI to take the previous approval of the Central Government for investigating a senior official even in a H constitutional court. monitored investigation?

MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1145

[MADAN B. LOKUR, J.]

24Copy pinpoint24. What is an investigation has already been discussed by Brother Justice Lodha a·nd I .endorse his views on this. However, what is crucial for an investigation is that it should conclude expeditiously from the point of view of all concerned: from the point of view of ttle accused, a quick conclusion to the investigation will clear his name and image in society if he is innocent. This is certainly of considerable importance to a person who has been wrongly accused or framed for an offence; from the point of view of society, a quick closure to investigation is necessary so that those against whom tl'lere is evidence of the commission of a crime are tried at the earliest -c and punished if they are guilty. This, so far as society is concerned, is essential for maintaining the rule of law; and from the point of view of the investigator, an expeditious conclusion of investigations is necessary because greater the delay, greater the chances of evidence being destroyed, witnesses 0 being compromised or the accused being able to manipulate circumstances to his or her advantage.

25Copy pinpoint25. In this light, the interplay between Section 6A of the Act and a constitutional court monitored investigation should be such as to protect senior government officials from frivolous and E vexatious complaints and at the same time prevent them from exercising influence or prolonging the grant of previous approval by the Central Government thereby effectively scuttling the investigation. F

26Copy pinpoint26. On the protective side, it was submitted by the learned · Attorney- General that when the CBI requests for the grant of previous approval, it presents only one side of the story and it is necessary to give the senior government official an opportunity of explaining his side of the story before approval G is granted by the Central Government to conduct investigations by the CBI. Assuming a senior government officer is being unfairly investigated by the CBI in a constitutional court monitored investigation without the previous approval of the Central Government, is it difficult for him or her to approach the H

1146 SUPREME COURT REPORTS [2013] 17 S.C.R.

A constitutional court and present his side of the story and contend that he or she should not be investigated for an alleged offence? It is only the substitution of a forum, from a Minister to a constitutional court, which will consider the officer's request and a fair hearing given by a constitutional court certainly cannot be B said to be detrimental to his pr her interest. On the contrary, the protection given by a constitutional court will be more real.

27Copy pinpoint27. On the preventive side, one must not forget that senior government officials wield at least some influence. This Court C has also cautioned in Sama} Parivartan Samudaya v. State of Kamataka, (2012) 7 SCC 407 that our criminal jurisprudence contemplates that "an investigation should be fair, in . accordance with law and should not be tainted. But, at the same time, the court has to take precaution that interested or intluential persons are not able to misdirect or hijack'•the ' D investigation so as to throttle a fair investigation resulting in the offenders escaping the punitive course of law." Effectively, therefore, Section 6A of the Act calls for an equal treatment before law for all, and that is precisely what a constitutional court , .monitored investigation seeks to achieve - preventing misuse E · of the law.

28Copy pinpoint28. The Office Memorandum relied on by the learned Attorney-General can hardly be termed as efficacious in any manner. Firstly, it cannot be used to interpret a provision of law such as Section 6A of the Act. I am not inclined to give any importance to the Office Memorandum for understanding or · appreciating Section 6A of the Act. Secondly, the Office Memorandum can always be withdrawn, modified or amended on the whim of the executive Government, on the same rationale as ,given for enacting Section 6A of the Act, namely, for 'protecting' a senior government official. Therefore, it does not effectively prevent possible misuse of the law.

29Copy pinpoint29. The entire issue may be looked at from another angle. Section 156 of the Criminal Procedure Code enables the local H

MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1147

[MADAN B. LOKUR, J.] ~-

police to investigate a cognizable offence while Section 155 A of the Criminal Procedure Code enables a police officer to investigate a non-cognizable offence after obtaining an appropriate order from the magistrate having power to try such case or commit the case for trial regardless of the status of the concerned officer. Therefore, the local police may investigate B a senior Government officer without previous approval of the Central Government, but the CBI cannot do so. This is rather anomalous.

30Copy pinpoint30. This anomaly has, in fact, occurred. In Centre for PIL C v. Union of India, (2011) 4 SCC 1 investigations were conducted by the local police in respect of a senior government . official, without any previous approval, and a challan.filed in the court of the Special Judge dealing with offences under the Prevention of Corruption Act, 1988. It is difficult to understand the logic behind such a dichotomy unless it is assumed that · D frivolous and vexatious complaints are made only when the CBI is the investigating agency and that it is only the CBI that is capable of harassing or victimizing a senior 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.

31Copy pinpoint31. With regard to the time factor for taking a decision, as proposed by the learned Attorney-General it is worth referring to Dr. Subramanian Swamy v. Dr. Manmohan Singh, (2012) 3 SCC 64 wherein this Court noted in paragraph 17 of the Report as follows:-

" Du ring the course of hearing, the learned Attorney General filed written submissions. After the hearing concluded, the learned Attorney General filed supplementary written submissions along with a compilation of 126 cases in which the sanction for prosecution is awaited for periods ranging for more than H

1148 SUPREME COURT REPORTS [2013) 17 S.C.R.

A one year to a few month~."

32Copy pinpoint32. Referring to. this situation, this Court observed in paragraph 70 of the Report as follows:-

''Therefore, in more than one-third cases of request for B prosecution in corruption cases against public servants, sanctions have nofbeen accorded. The aforesaid scenario raises very important constitutional issues as well as some questions relating to interpretation af such sanctioning provision and also the rble that an independent judiciary c has to play in maintaining the Rule of Law and common man's faith in the justice-delivering system. Both the Rule of Law and equality before law are cardinal questions in our constitutional laws as also in international law and in this context the role of the judiciary is very vital." D

33Copy pinpoint33. It is true that in Swamy this Court was referring to delays in sanctions for prosecution but it is not unlikely that a similar scenario may play itself out in respect of the grant of previous approval for investigation notwithstanding time lines E being laid down as mentioned in the Office Memorandum. This is because if the time lines are not adhered to, it is unlikely that the CBI, in the absence of any realistic functional autonomy, will be able to press the Central Government beyond a point for expeditious approval for investigating an offence against a F ·senior government official. Investigations can be paralyzed by unwarranted delay~. both intentional and unintentional.

34Copy pinpoint34. Equality before law has been emphasized by this Court in Sirajuddin in the passage cited by the learned Attorney- Genel"al. This has also been emphasized in Swamy in the passage quoted above. In Vineet Narain, the issue of equality before law was adverted to in paragraph 44 of the Report. Keeping this salutary equality principle in mind, it is necessary that Section 6A be so interpreted that the requirement of a previous approval is not necessary when an investigation by the CBI is being monitored by a constitutional court. The

MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1149

[MADAN B. LOKUR, J.]

protection afforded to a senior government officer. can be adequately taken care of by a fair and impartial hearing in a constitutional court; the preventive mechanism for a fair investigation can be impartially taken care of by_ a colJ'Stitutional court; expeditious and nonpartisan conclusion of an investigation can be and will undoubtedly be monitored by a constitutional court. More importantly, public interest will be taken care of if Section 6A of the Act is interpreted as not putting a fetter on a the power of a constitutional court in case of a continuing mandamus. ' c

35Copy pinpoint35. The learned Attorney-General is right in saying that official acts are presumed to have been done in accordance with law. While this certainly applies to senior government officers, it equally applies to the CB.I which, it is presumed, will 'officially' act against a senior government officer in a constitutional court monitored Investigation only if it is confident D that there is enough material before it to conduct an investigation. It is not possible to assume that in a constitutional court monitored investigation the CBI will, in a trigger-happy manner, ride roughshod and target senior government officers only because they are empowered to do so. The submission E · of the learned Attorney-General must equally apply to the CBI and an official act of the CBI must also be presumed to have been done in accordance with law.

36Copy pinpoint36. Interestingly, as noted in Subramaniam Swamy v. F Director (CBI), (2005) 2 SCC 317 no previous approval for investigation was required by the CBI from the date of decision in Vineet Narain (18th December 1997) till the insertion of Section 6-A of the Act with effect· from 12th September 2003 except for a brief period of two months from 25th August 1998 G to 27th October 1998. Absolutely no material was placed before us to suggest that during the period when the Single Directive was !JOI in operation, nor was Section 6A of the Act on the statute book, the CBI investigated frivolous and vexatious complaints against senior government officers or harassed any H

1150 SUPREME COURTREPORTS (2013] 17 S.C.R.

A of them in any way. The fear that decision makers in the Government will be wary of taking a bona fide decision that may inadvertently stir up an avoidable controversy does not appear to be based on any rpaterial.

37Copy pinpoint37. Finally, a constitutional court monitored investigation 8 is nothing but the adoption of a procedure of a 'continuing mandamus' which traces its origin, like public interest litigation, to Article 32 of the Constitution and is our contribution to jurisprudence. This has been sufficiently discussed in Vineet Narain and there is no present necessity of any further discussions on this. In M. C. Mehta v. Union of India, (2008) 1 SCC 407 this Court referred, in the context of ongoing investigations, to a 'continuous mandamus' and observed that:

"The jurisdiction of the Court to issue a writ of continuous mandamus is only to see that proper investigation is carried out. Once the Court 6atisfies itself that a proper investigation has been car,ried out, it would not venture to take over the functions of the Magistrate or pass any order which woulc(interfere with his judicial functions." '•' ~ J •

38Copy pinpoint38. The question therefore is, can a statutory fetter such as Section 6A of the Act bind the exercise of plenary power by this Court of issuing orders in the nature of a continuing mandamus under Article 32 of the Constitution? The answer is quite obviously in the negative. Any statutory emasculation, F intended or unintended, of the powers exercisable under Article 32 of the Constitution is impermissible.

39Copy pinpoint39. In the Constitution Bench decision in State of West Bengal v. Committee for Protection of Democratic Rights, G (2010) 3 sec 571 the question that arose was whether the High Court could direct the CBI to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government. Apart from the constitutional issue relating to the H separation of powers, the other issue related. to the statutory

MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1151

[MADAN B. LOKUR, J.)

bar on investigations, without the consent of the State A Government, imposed by Section 6 of the Act.

This S~ction reads as follows:

6. Consent of State Government to exercise of powers and jurisdiction.-NQthing contained in Section 5 shall be B deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any a area in a State, not being Union Territory or railway area, without the consent of the Government of that State." c

40Copy pinpoint40. The Constitution Bench discussed the issue of separation of powers and later dealt with the statutory bar in the context of judicial review. The Constitution Bench referred (in paragraph 51 of the Report) to the speech of Dr. Ambedkar in the Constituent Assembly, with reference to Article 32 of the D Constitution, .. wherein he said .

"If I was asked to name any particular article in this Constitution as the most important - an article without which this Constitution would be a nullity - I could not refer to any .other article except this one. It is the very soul of E· the Constitution and the very heart of it and I am glad that the House has realised its importance."

Thereafter, explaining the importance of clause (2) of Article 32 and the expression "in the nature or used therein, the Constitution Bench held, in paragraph 53 of the Report that the power conferred is "in the widest terms and is not confined· to issuing the high prerogative writs specified in the said clause but includes within its ambit the power to issue any directions or orders or writs which may be appropriate for enforcemerit of the fundamental tights. Therefore, even when the conditions for issue of any of these writs are not fulfilled, this Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for H

1152 SUPREME COURT REPORTS (2013] 17 S.C.R.

A judicial redress (per P.N. Bhagwati, J. in Bandhua Mukti Morcha v. Union of lndia 4 )."

41Copy pinpoint41. Concluding the discussion, the Constitution Bench held (in paragraph 68(vii) of the Report) that the power of judicial review exercisable by a constitutional court cannot be restricted by a statutory provision. It was held as follows:

(vit) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation withip the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure."

42Copy pinpoint42. The law laid down by the Constitution Bench vis-a-vis F a High Court exercising judicial review under Article 226 of the Constitution and a statutory restriction under Section 6 of the Act, would apply (perhaps with greater vigour) mutatis mutandis to the exercise of judicial review by this Court under Article 32 of the Constitution with reference to a statutory G restriction imposed by Section 6A of the Act. That being so, Section 6A of the Act must be meaningfully and r~alistically read, only as an injunction to the executive and not as an injunction to a constitutional court monitoring an investigation

H 4. (1984) 3 sec 1s1.

MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1153

[MADAN B. LOKUR, J.)

under Article 32 of the Constitution in an exercise of judicial review and of issuing a continuing mandamus.

43Copy pinpoint43. The need for a separate opinion has arisen since I have some reservations on the interpretation of the decisions of this Court referred.JQ":b,y Brother Justice Lodha with regard to the plenitude of powers exercisable by this Court under Article 142 of the Constitution. Those reservations are not at all material for the present since the conclusion arrived at is the same - the route being different. While Brother Justice Lodha has relied on Article 142 of the Constitution to arrive at a C conclusion that Section 6A of the Act has no application to a constitutional court monitored investigation, I have reached the same ·conclusion by relying, inter alia, on Article 32 of the Constitution and the discussion on judicial review found in Committee for Protection of Democratic Rights. D Rajendra Prasad Question of Law answered.