Top bureaucrats take policy decisions, need protection from probe: Centre
NEW DELHI: The Centre on Tuesday told the Supreme Court that bureaucrats of joint secretary level and above "take all policy decisions" and must be protected from frivolous inquiry.
The court is examining the validity of Section 6A of Delhi Special Police Establishment (DSPE) Act which mandates an investigating agency to take prior consent before initiating inquiry against a top bureaucrat.
In his note handed over to a bench comprising Justices R M Lodha, A K Patnaik, S J Mukhopadhaya, Dipak Misra and F M I Kalifulla, additional solicitor general L Nageshwar Rao said, "Public servants of the level of joint secretary and above take all policy decisions. As they take all policy decisions, there is a need to protect them from frivolous inquiries and investigation so that policy making does not suffer."
Two petitions - one by Subramanian Swamy and the other by NGO 'Centre for Public Interest Litigation' - had challenged the validity of Section 6A on many grounds, but primarily alleging that it gave a handle to the government to stall inquiry into corruption in high posts and discriminate by choosing the bureaucrat who would be allowed to be probed and those who would not be.
The controversial provision, popularly known in bureaucratic circles as "single directive', was brought back to life by the government by amending DSPE Act after the court had scrapped it in 1997 by its judgment in Vineet Narain judgment on the basis of a Parliamentary Committee recommendation that top bureaucrats needed protection from frivolous inquiry and resultant litigation.
The judicial spotlight on the validity of Section 6A intensified after the apex court, while monitoring CBI investigations into irregular allotment of coal blocks, ruled that the provision would give no protection to joint secretary or above level bureaucrats if the investigation was either monitored by the Supreme Court or ordered to be instituted by it.
Rao defended the validity of the provision saying mere apprehension of the petitioners about possible abuse of the power vested by Section 6A in the Centre could not be a valid ground to test the validity of the law.
He said as the power to decide whether or not permission be given to initiate inquiry against a top bureaucrat had been conferred on a "high authority", it reduces the possibility of its abuse to the very minimum.
The court is examining the validity of Section 6A of Delhi Special Police Establishment (DSPE) Act which mandates an investigating agency to take prior consent before initiating inquiry against a top bureaucrat.
In his note handed over to a bench comprising Justices R M Lodha, A K Patnaik, S J Mukhopadhaya, Dipak Misra and F M I Kalifulla, additional solicitor general L Nageshwar Rao said, "Public servants of the level of joint secretary and above take all policy decisions. As they take all policy decisions, there is a need to protect them from frivolous inquiries and investigation so that policy making does not suffer."
Two petitions - one by Subramanian Swamy and the other by NGO 'Centre for Public Interest Litigation' - had challenged the validity of Section 6A on many grounds, but primarily alleging that it gave a handle to the government to stall inquiry into corruption in high posts and discriminate by choosing the bureaucrat who would be allowed to be probed and those who would not be.
The controversial provision, popularly known in bureaucratic circles as "single directive', was brought back to life by the government by amending DSPE Act after the court had scrapped it in 1997 by its judgment in Vineet Narain judgment on the basis of a Parliamentary Committee recommendation that top bureaucrats needed protection from frivolous inquiry and resultant litigation.
The judicial spotlight on the validity of Section 6A intensified after the apex court, while monitoring CBI investigations into irregular allotment of coal blocks, ruled that the provision would give no protection to joint secretary or above level bureaucrats if the investigation was either monitored by the Supreme Court or ordered to be instituted by it.
Rao defended the validity of the provision saying mere apprehension of the petitioners about possible abuse of the power vested by Section 6A in the Centre could not be a valid ground to test the validity of the law.
He said as the power to decide whether or not permission be given to initiate inquiry against a top bureaucrat had been conferred on a "high authority", it reduces the possibility of its abuse to the very minimum.
He said absence of guidelines for exercise of the power under Section 6A could at best make the decisions taken using such power open to judicial scrutiny, but not invalidate the law.