The Supreme Court Tuesday said there was no need for prior sanction of the government to launch an inquiry or investigation against a public servant under the Prevention of Corruption Act in a court-monitored CBI investigation.
A bench of Justice R.M. Lodha and Justice Kurian Joseph ruled the approval of central government was not necessary under Section 6A of the Delhi Special Police Establishment Act, 1946, in cases where the inquiry/investigation under the anti-corruption act is being monitored by the court.
"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 public servant and the investigating agency performs its duties and discharges its responsibility of fair and impartial investigation uninfluenced by extraneous considerations," said the order.
While agreeing with majority order, Justice Madan B.Lokur in a concurring but separate order said: "In my opinion, this section (6A of DSPE Act) has no application to a constitutional court monitored inquiry or investigation."
Justice Lokur said that he and Justice Lodha arrived at the same conclusion but took different route. While Justice Lodha took recourse to Article 142 (reservoir of powers of apex court), he followed the Article 32 of the constitution, he said.
"A constitutional court monitored investigation 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," he said.
He held that there could be no statutory bar to apex court's plenary powers by any provision like section 6A of the DSPE Act that requires prior permission of the government before an officer of the rank of joint secretary or above or public servant could be investigated for corruption.
"The answer is quite obviously in the negative. Any statutory emasculation, intended or unintended, of the powers exercisable under Article 32 of the Constitution is impermissible," Justice Lokur said.
He said that taking away the powers of prior sanction would not deprive the officer under scanner from giving his side of the story. "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 said to be detrimental to his or her interest."
"On then contrary, the protection given by a constitutional court will be more real," Justice Lokur said, noting that "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".
Pointing out that the validity of Section 6A was pending before the apex court's constitution bench, Justice Lodha in the majority order said that "its order did not touch this validity aspect at all".
The court went into the question of prior sanction in the course of the ongoing hearing of the coal 'scam' case.
A bench of Justice R.M. Lodha and Justice Kurian Joseph ruled the approval of central government was not necessary under Section 6A of the Delhi Special Police Establishment Act, 1946, in cases where the inquiry/investigation under the anti-corruption act is being monitored by the court.
"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 public servant and the investigating agency performs its duties and discharges its responsibility of fair and impartial investigation uninfluenced by extraneous considerations," said the order.
While agreeing with majority order, Justice Madan B.Lokur in a concurring but separate order said: "In my opinion, this section (6A of DSPE Act) has no application to a constitutional court monitored inquiry or investigation."
Justice Lokur said that he and Justice Lodha arrived at the same conclusion but took different route. While Justice Lodha took recourse to Article 142 (reservoir of powers of apex court), he followed the Article 32 of the constitution, he said.
"A constitutional court monitored investigation 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," he said.
He held that there could be no statutory bar to apex court's plenary powers by any provision like section 6A of the DSPE Act that requires prior permission of the government before an officer of the rank of joint secretary or above or public servant could be investigated for corruption.
"The answer is quite obviously in the negative. Any statutory emasculation, intended or unintended, of the powers exercisable under Article 32 of the Constitution is impermissible," Justice Lokur said.
He said that taking away the powers of prior sanction would not deprive the officer under scanner from giving his side of the story. "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 said to be detrimental to his or her interest."
"On then contrary, the protection given by a constitutional court will be more real," Justice Lokur said, noting that "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".
Pointing out that the validity of Section 6A was pending before the apex court's constitution bench, Justice Lodha in the majority order said that "its order did not touch this validity aspect at all".
The court went into the question of prior sanction in the course of the ongoing hearing of the coal 'scam' case.