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3. The validity of Section 6-A has been questioned on the touchstone of Article 14 of the Constitution. Learned amicus curiae has contended that the impugned provision is wholly subversive of independent investigation of culpable bureaucrats and strikes at the core of rule of law as explained in Vineet Narain case and the principle of independent, unhampered, unbiased and efficient investigation. The contention is that Vineet Narain decision frames a structure by which honest officers could fearlessly enforce the criminal law and detect corruption uninfluenced by extraneous political, bureaucratic or other influences and the result of the impugned legislation is that the very group of persons, namely, high-ranking bureaucrats whose misdeeds and illegalities may have to be inquired into, would decide whether CBI should even start an inquiry or investigation against them or not. There will be no confidentiality and insulation of the investigating agency from political and bureaucratic control and influence because the approval is to be taken from the Central Government which would involve leaks and disclosures at every stage. The very nexus of the criminal-bureaucrat-politician which is subverting the whole polity would be involved in granting or refusing prior approval before an inquiry or investigation can take place. Pointing out that the essence of a police investigation is skilful inquiry and collection of material and evidence in a manner by which the potential culpable individuals are not forewarned, the submission made is that the prior sanction of the same department would result in indirectly putting to notice the officers to be investigated before commencement of investigation. Learned Senior Counsel contends that it is wholly irrational and arbitrary to protect highly-placed public servants from inquiry or investigation in the light of the conditions prevailing in the country and the corruption at high places as reflected in several judgments of this Court including that of Vineet Narain. Section 6-A of the Act is wholly arbitrary and unreasonable and is liable to be struck down being violative of Article 14 of the Constitution is the submission of learned amicus curiae.

- and submitted that the impugned provision puts this nexus in a position to block inquiry and investigation by CBI by conferring the power of previous approval on the Central Government.

14. Mr. Anil B. Divan, learned amicus curiae wants us to take judicial notice of the fact that high level bureaucratic corruption goes hand in hand, on many occasions, with political corruption at the highest level. This very group of high ranking bureaucrats, whose misconduct and criminality, if any, requires to be first inquired into and thereafter investigated, can thwart, defeat and impair this exercise. In substance, the potential accused would decide whether or not their conduct should be inquired into. He argues that the essence of skillful and effective police investigation is by collection of evidence and material secretly, without leakage so that the potential accused is not forewarned leading to destruction or tempering of evidence and witnesses. Such investigation is compromised by the impugned provision, viz., Section 6-A of the DSPE Act. The requirement of previous approval in the impugned provision would mean leakages as well as breach of confidentiality and would be wholly destructive of an efficient investigation. The provision, such as Section 6-A, offers an impregnable shield (except when there is a court monitored investigation) to the criminal-bureaucratic-political nexus. If the CBI is not even allowed to verify complaints by preliminary enquiry, how can the case move forward? In such a situation, the very commencement of enquiry / investigation is thwarted and delayed. Moreover, a preliminary enquiry is intended to ascertain whether a prima facie case for investigation is made out or not. If CBI is prevented from holding a preliminary enquiry, it will not be able to even gather relevant material for the purpose of obtaining previous approval.

63. As a matter of fact, the justification for Section 6-A which has been put forth before us on behalf of the Central Government was the justification for Single Directive 4.7(3)(i) in Vineet Narain1 as well. However, the Court was unable to persuade itself with the same. In Vineet Narain1 in respect of Single Directive 4.7(3)(i), the Court said that every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. We are in agreement with the above observation in Vineet Narain1, which, in our opinion, equally applies to Section 6-A. In Vineet Narain1, this Court did not accept the argument that the Single Directive is applicable only to certain class of officers above the specified level who are decision making officers and a distinction can be made for them for the purpose of investigation of an offence of which they are accused. We are also clearly of the view that no distinction can be made for certain class of officers specified in Section 6-A who are described as decision making officers for the purpose of inquiry/investigation into an offence under the PC Act, 1988. There is no rational basis to classify the two sets of public servants differently on the ground that one set of officers is decision making officers and not the other set of officers. If there is an accusation of bribery, graft, illegal gratification or criminal misconduct against a public servant, then we fail to understand as to how the status of offender is of any relevance. Where there are allegations against a public servant which amount to an offence under the PC Act, 1988, no factor pertaining to expertise of decision making is involved. Yet, Section 6-A makes a distinction. It is this vice which renders Section 6-A violative of Article 14. Moreover, the result of the impugned legislation is that the very group of persons, namely, high ranking bureaucrats whose misdeeds and illegalities may have to be inquired into, would decide whether the CBI should even start an inquiry or investigation against them or not. There will be no confidentiality and insulation of the investigating agency from political and bureaucratic control and influence because the approval is to be taken from the Central Government which would involve leaks and disclosures at every stage.

Answer No.4 ; Yes, both State Police and CBI have jurisdiction under P.C. Act over such officers. The jurisdiction of CBI is, however, subject to Section 6(A) of DSPE Act and consent of the State Govt. u/s 6 of the DSPE Act, 1946."

67. 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. The provision in Section 6-A, thus, impedes tracking down the corrupt senior bureaucrats as without previous approval of the Central Government, the CBI cannot even hold preliminary inquiry much less an investigation into the allegations. The protection in Section 6-A has propensity of shielding the corrupt. 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. The CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations. Thus, the object of Section 6-A itself is discriminatory. That being the position, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved.