The Supreme Court said, Section 6A of the DSPE Act, which requires government's nod for offences under the Prevention of Corruption Act to make inquiry against officer of the rank of joint secretary and above, is invalid and violative of Article 14 of the Constitution
The Supreme Court on Tuesday held as invalid and unconstitutional the legal provision, which makes sanction of competent authority mandatory for the Central Bureau of Investigation (CBI) to probe a corruption case against an officer of joint secretary-rank or above, saying it has the propensity of shielding the corrupt.
A five-judge Constitution bench headed by Chief Justice RM Lodha delivered the judgement after examining Section 6A of the Delhi Special Police Establishment Act (DSPEA), which protects top bureaucrats from being investigated in corruption cases without prior approval.
"We hold Section 6A of the Act, which requires Central Government's approval for the offences under the Prevention of Corruption Act (PCA) to make inquiry against officer of the rank of joint secretary and above, as invalid and violative of Article 14 of the Constitution," the bench, also comprising justices AK Patnaik, SJ Mukhopadhaya, Dipak Misra and FMI Kalifulla, said.
It said there cannot be any classification of officers for the purpose of inquiry of offence under the PCA.
"The corrupt public servants, higher or lower in rank, are the birds of same feather and have to be dealt with equally," the court observed.
Maintaining that "corruption is an enemy of nation", the bench said that it is difficult to make classification of officers in graft cases as it is against the mandate of the PCA.
It said that the prior approval under Section 6A would result, indirectly, in halting the investigation and if the CBI is not allowed to carry on the preliminary inquiry how the investigation can proceed.
"We are of the view that there can be no distinction between certain class of officials for inquiry of the offences under the PCA.
"How can the status of officials be of any relevance in the offence under PCA and any distinction by way of Section 6A of the DSPEA makes it violative of Article 14," the bench said, adding that the protection as provided in Section 6A has the propensity of shielding the corrupt.
The court said there cannot be any exemption from equal treatment and any official facing allegations of corruption has to be treated with the same process of inquiry.
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It is true Pakistan has opened its doors to over 85% of items to be exported from India but it still does not permit 1,209 items, which includes automobiles, many pharmaceutical products, agricultural produce and textile items like polyester
When the new government is formed, in about two weeks' time, one of the most important foreign policy announcement would relate to India's relations with neighbours, the South Asian Association for Regional Cooperation (SAARC) group, and the world powers at large. There is no doubt that the new government would like to extend its hand of friendship and understanding with all the countries, with particular reference to Pakistan and China on one hand, and the rest on the other.
In the last few months, we have senior ministers from Pakistan coming to India and talks have been going on at various levels, soon after Nawaz Sharif took over as Prime Minister. One of the earliest of his acts was the proposal to obtain electricity supplies from India, through our transmission towers linked to theirs. After initial enthusiasm, a Pakistani delegation was to arrive and finalize the deal. They never came, having called off the visit at short notice.
Soon thereafter, the Commerce Minister turned up. Khurram Dastgir Khan, while attending the SAARC meeting, stated that "market access is more important than MFN (most favoured nation) and said this would take some more time". Nothing really happened after that.
Now, the Pakistani High Commissioner, Abdul Basit, in an interaction with women journalists, has expressed hope that the new government would help to establish a conflict-free relation with Pakistan; "we would like to have peace through dialogue and engagement." He is reported to have said: "it takes two to Tango!". Earlier, Nawaz Sharif's government was keen to focus on regional security without which development was not possible in the area.
While talking to the journalists, Abdul Basit once again called for India to reduce subidies on some items of export interest to Pakistan, and has reiterated his hope that the new government at the Centre would do so, as this will enable Pakistan to permit import of all items from India.
Last year, Islamabad had "promised" to do away with all import bans by 31 December 2013. it had also promised to allow trade of all products through the land route instead of expensive sea-route. Neither of these happened. However, early this year, both countries had agreed on an arrangement under which India would reduce subsidy on items that can be exported by Pakistan but could not be implemented as the model code of conduct came to play, according to Abdul Basit. Therefore, the whole issue has to be revisited once the new government is in place.
New Delhi, on the other hand, has been demanding non-discriminatory market access, which basically means all Indian items to be sold in Pakistan. This is the key condition that New Delhi has laid down before Islamabad for restarting bilateral trade dialogue. It is hoped that the new Government would reiterate the stand taken earlier.
It is true Pakistan has opened its doors to over 85% of items to be exported from India but it still does not permit 1,209 items, which includes automobiles, many pharmaceutical products, agricultural produce, textile items like polyester.
These trade issues can and should be again discussed on a priority basis and should be settled within a time frame set mutually by both sides. However, there are a few important issues that also needs to be tackled with the Pakistani government, that covers the following:
a) acceptance and firm commitment by Pakistan to stop minting and smuggling counterfeit Indian currency through various channels. There is enough forensic proof that can be provided to Pakistani government itself; if not to a third party like the World bank or International Court at the Hague. Indian economy is being ruined by these fake notes, which were initially in Rs500 and Rs1,000 in denominations. Now, these are being made in smaller denominations, such as Rs5, Rs10, Rs20, Rs50 and Rs100 and the grass root population being hurt. This must stop at all costs.
b) if land border has to be opened fully, India needs to install advanced x-ray equipment to prevent currency and drug smuggling which are going on with impunity
c) if one has to assume that LOC (line of control) is actually manned by Pakistani Army personnel, how come the so-called Jehadis escape their detection and creep into India to create terrorist activities?
We had enough of talks and assurances. It's time that the new government takes firm steps to extend the hand of friendship for Pakistani people and reiterate their willingness to go the extra mile, but their government needs to fix these issues immediately.
No more talks. We need actual action.
(AK Ramdas has worked with the Engineering Export Promotion Council of the ministry of commerce. He was also associated with various committees of the Council. His international career took him to places like Beirut, Kuwait and Dubai at a time when these were small trading outposts; and later to the US.)