CBI doesn’t require permission to probe pre-2014 cases: SC

By Amigos IAS

Why is it in the news?

  • Recently, the Supreme Court of India made a significant ruling regarding the Delhi Special Police Establishment (DSPE) Act, 1946.
  • The ruling concerns the requirement of central government sanction for the CBI to prosecute senior government officers.

Ruling Details

  • The provision in the DSPE Act, 1946, mandating central government sanction for CBI prosecution of officers of Joint Secretary rank and above, is nullified.
    • This nullification is retroactive, effective from September 11, 2003, when the provision was introduced.
  • The ruling is based on a 2014 judgment in the Subramanian Swamy vs Union of India case, which declared Section 6A (1) of the DSPE Act invalid and retrospective.
  • The court determined that when a law is declared unconstitutional, it becomes void ab initio, unenforceable, and non est in view of Article 13(2) of the Constitution.
    • Article 13(2) prohibits the state from making laws that abridge constitutional rights and declares such laws void.
Specifics of the Invalidated Sections
  • Section 6A (1) required central government approval for investigations into corruption allegations against specific government employees.
  • The court clarified that Section 6A (1) was a procedural safeguard and did not introduce new offenses or penalties.
  • Article 20(1) was cited, which restricts convictions and penalties for offenses not in force at the time of the act.

Historical Context

  • The ruling discussed the historical safeguards for government servants from prosecution.
  • The Single Directive, issued by the central government in 1969, required prior sanction for investigations against certain civil servants but was invalidated in 1997.
  • Section 6A, similar to the Single Directive, was inserted into the DSPE Act in 2003 but was invalidated by the 2014 judgment.
  • Section 17A was introduced in the Prevention of Corruption Act, 1988, in 2018, providing protection to government servants without classification.
  • CBI sources consider this ruling as the resolution of a pending matter regarding a case where prior sanction was not obtained.
  • Legal experts believe the judgment has the potential to reopen cases where government sanction for investigation was denied between 2003 and 2014.

Some key points about the ruling

  • The Supreme Court’s 2014 judgment declared Section 6A of the Delhi Special Police Establishment (DSPE) Act invalid.
    • Section 6A required prior permission for investigating corruption cases involving senior government officials.
  • Section 6A was deemed void from its insertion date on September 11, 2003.
    • This means that senior government officials involved in corruption cases before the 2014 judgment cannot claim the protection of prior sanction.
  • The judgment clarified that Article 20(1), which pertains to conviction under a law in force at the time of the crime, does not apply to the validity or invalidity of Section 6A.
  • Section 6A had granted immunity from CBI preliminary inquiries to officers of the rank of joint secretary and above.
    • The 2014 Constitution Bench had found this provision in violation of the right to equality under Article 14 of the Constitution.
    • It was noted that Section 6A hindered efforts to combat corruption among senior bureaucrats by shielding them, contrary to the objectives of the Prevention of Corruption Act, 1988.
  • The judgment emphasized that tracking down corrupt public servants, regardless of their status or position, is essential.
  • It highlighted that no one should be exempted from equal treatment under the law, as corruption is detrimental to the nation.

About Mandatory Consent

  • The CBI operates under The Delhi Special Police Establishment (DSPE) Act, 1946.
  • It is required to obtain the consent of the concerned state government before initiating an investigation within a state.
  • Section 6 of The DSPE Act states that CBI members cannot exercise powers and jurisdiction in a state without the consent of that state’s government.
General Consent Vs Case Specific
  • State governments can provide either case-specific or general consent to the CBI.
    • General consent is typically given by states to facilitate the CBI’s investigation of corruption cases involving central government employees within their jurisdictions.
    • CBI can initiate investigations assuming general consent has been given.
  • In the absence of general consent, CBI must seek state government consent for each individual case, even for minor actions.
Withdrawal of Consent
  • Historically, most states granted general consent to the CBI.
  • However, since 2015, several states have started withdrawing this consent.
  • States that have withdrawn consent include Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, Mizoram, and Meghalaya.
  • States withdrew consent alleging that the central government was using the CBI to target the opposition unfairly.

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