(This is a guest post by Manish, a legal researcher based in Delhi, and a 2013 graduate of NLS-Bangalore.)
Last week, in Subramanian Swamy v. Director, CBI, a Constitution Bench of the Supreme Court, speaking through Chief Justice Lodha, struck down section 6A of the Delhi Special Police Establishment Act, 1946 (“DSPE Act”) as being ultra vires Article 14 of the Constitution. The Bench was hearing two writ petitions filed by Subramanian Swamy and CPIL, dating back to 1997 and 2004. This post is a critique of how, in this case, despite a substantial question of Constitutional importance being raised before it, the Supreme Court missed out on an opportunity to clarify its jurisprudence on Article 14.
Some factual background is necessary. The Central Bureau of Investigation (CBI), a body constituted under the DSPE Act, is empowered to investigate offences by public officials under the Prevention of Corruption Act, 1988 (“PC Act”). The Government of India had issued a series of executive instructions to the CBI covering investigations in these cases. One of these instructions, called the ‘single directive’, required the CBI to obtain prior sanction before prosecuting officials of and above the rank of joint secretary. In 1998, this directive was struck down by the SC as ultra vires in Vineet Narain v. Union of India. In what was an apparent attempt to override the decision in Vineet Narain, the Union Government issued an ordinance in 1998 which was followed by a Bill that eventually became the Central Vigilance Commission (Amendment) Act, 2003, section 26(c) of which inserted section 6A into the DSPE Act.
While hearing the case, a three-judge Bench of the SC in 2005 expressed doubts about the decision in Vineet Narain vis-a-vis the correctness of its application of an earlier Constitution Bench in Veeraswami v. Union of India (on the point of prior sanction), as well as the question of whether arbitrariness and unreasonableness or manifest arbitrariness and unreasonableness, being facets of Article 14 of the Constitution are available or not as grounds to invalidate a legislation, in light of apparently conflicting decisions of three judge benches of the Court. Hence, the matter was directed to be placed before the Constitution Bench on these grounds. This post will be restricted to the SC’s analysis of Article 14.
It will be useful to briefly outline the Supreme Court’s jurisprudence on equality here. Under Article 14 of the Constitution, the State is prohibited from denying to any person equality before law and equal protection of the law. The Supreme Court has, over the years, evolved two tests to determine whether particular kinds of State conduct are Constitutionally permissible under Article 14. The first of these, referred to as the “old doctrine” or the “classification test”, was developed by the Court in a series of judgments in the 1950s including, notably, Ram Krishna Dalmia v. Justice Tendolkar. Simply put, it permits the State to make differential classification of subjects (which would otherwise be prohibited by Article 14) provided that the classification is founded on intelligible differentia (i.e. objects within the class are clearly distinguishable from those that are outside) and has a rational nexus with the objective sought to be achieved by the classification. This is an application of the adage, derived from United States jurisprudence, that persons similarly situated are to be treated equally, which has been held by our Supreme Court to be an integral part of the equality envisaged in Article 14. The second test, referred to as the “new doctrine” or the “arbitrariness test”, was propounded by Bhagwati, J. in the case of E.P. Royappa v. State of Tamil Nadu in 1974, and affirmed as an integral part of Article 14 jurisprudence on subsequent occasions. The test postulates that the equality envisaged by Article 14 includes a guarantee against arbitrariness in State action. Although soundly criticised by the likes of Seervai as being logically unsound and untenable, this test has subsequently found favour with the Supreme Court and despite its somewhat vague formulation, has formed the basis on a number of occasions for State action being declared ultra vires Article 14.
At the outset, it will be useful to reproduce the relevant portion of section 6A of the DSPE Act here:
“The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to-
(a) the employees of the Central Government of the Level of Joint Secretary and above; and
(b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.”
The Union Government’s stated rationale for this section was to insulate bureaucrats in decision-making positions from false and frivolous prosecution and enable them to take decisions freely without fear of being prosecuted. It is interesting to observe how the Court engages with this (or not), particularly on the question of arbitrariness.
The Court spends over one-third of the judgment (paras 4-36) setting out the facts (despite this being a reference purely on a question of law) and the arguments of opposing counsel at length. It then proceeds to analyse Article 14, laying out the principles relating to the old doctrine as summarised in Ram Krishna Dalmia’s case (paras 40-42). This is followed by a very brief substantive discussion on the new doctrine (paras 45-48), after which, the Court, instead of discussing the question of law referred to it, directly proceeds to apply it to the facts of the case. A largely pointless discussion of Vineet Narain is inexplicably followed by the following observation:
“Can the Legislature lay down different principles for investigation/inquiry into the allegations of corruption for the public servants who hold a particular position? Is such classification founded on sound differentia? To answer these questions, we should eschew the doctrinaire approach. Rather, we should test the validity of impugned classification by broad considerations having regard to the legislative policy relating to prevention of corruption enacted in the PC Act, 1988 and the powers of inquiry/investigation under the DSPE Act.” (para 55)
The Court not only muddles up the two limbs of the classification test, but seems to confuse it with the arbitrariness test – despite the two being distinct doctrines with distinct reasoning. Two paragraphs later, it manages to arrive at the following conclusion, although the chain of reasoning is missing:
“It seems to us that 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 finding prima facie truth into the allegations of graft, which amount to an offence under the PC Act, 1988.”
This is bizarre logic: the Court’s jurisprudence on Article 14 indicates that the rational nexus referred to in the second limb of the classification test must be with reference to the object of the legislation that is under challenge. In the present case, the legislation under challenge is the DSPE Act and not the PC Act, which the Court relies on. And even though it might have been possible to argue that the object of the DSPE Act was to enable swift prosecution, and that section 6A defeats this object, the Court does not approach this angle at all.
That said, the extract quoted above would have sufficed in terms of deciding on the Constitutionality of the impugned section. However, it inexplicably continues rambling on about classification (not, it must be noted, arbitrariness) in a manner that defeats sound sense and logic. In para 59, reliance is placed on a passage from Ambica Mills, dealing with the first limb of the classification test, to support the Court’s reasoning in respect of the second limb of the test. Subsequently, after exhausting its discussion on the second limb of the test, the Court belatedly remembers the first limb and addresses it:
“Can it be said that the classification is 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 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 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 the negative.”
This is a reasonable conclusion, and it is submitted that the Court might have saved itself reams of paper and rivers of ink, had it been more structured and discussed this point at the outset. Strangely enough, later in the same paragraph, it proceeds to declare that the object of Section 6-A of the DSPE Act is discriminatory, based on the following (it is submitted, extremely questionable) logic:
“The object of Section 6-A, that senior public servants of the level of Joint Secretary and 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.”
It is unclear on what basis the Court resolved this apparent conflict between the objects of the DSPE Act and the PC Act, declaring only the latter to be legitimate. Ironically, all of this is from a Bench that was originally asked to pronounce on the question of arbitrariness! There is also plenty of sermonising about corruption and the need to eliminate it, including reference to a UN Convention and the legislative history of the PC Act. Nowhere is the analogous point of prior sanction for prosecution in other legislations, such as section 197 of the Code of Criminal Procedure, even considered in detail, besides a cursory statement that there is no similarity between section 6A of the DSPE Act and any other provision, and that each case has to be examined independently and not by applying a general rule. What becomes of precedent then, one wonders. The Court concludes by striking down section 6A, without answering the question referred to it.
While one may agree with the decision of the Court in principle (and in law), the reasoning for the same is wholly flawed. Further, the Court does not deal with the issue that was referred to it, but goes off on an unrelated tangent, thus losing a valuable opportunity to clarify its Article 14 jurisprudence. While Constitution Benches have been a rarity in recent times, and it is encouraging to see more questions of Constitutional interpretation referred to larger Benches, it is submitted that such references will only be a waste of time and judicial resources if the questions remain unanswered.