The Supreme Court was Wednesday told that the law which makes it mandatory for CBI to take approval of competent authority to probe senior bureaucrats in graft cases creates a "privileged class" of central government employees and violates equality clause of the Constitution.
Further, it was contended before the apex court that section 6A of the Delhi Special Police Establishment Act, 1946, which protects senior bureaucrats from being directly probed by the CBI destroy and run counter to the object and reasons of Prevention of Corruption Act, 1988.
A five-judge Constitution Bench headed by Justice RM Lodha, which is examining the validity of section 6A, was told that the CBI stand has also been contradictory in applying the questionable provision in trap cases.
Senior advocate Anil Divan, who is assisting the court as amicus curiae in the matter, said in some cases CBI has been of the view that there was no need of prior approval for investigating and interrogating senior bureaucrats in trap cases while in other instances the agency has been following compliance of section 6A.
Continuing his arguments along with advocate Ranvir Singh, Divan said, "The impugned provisions confer on the Central government unguided, unbridled and unfettered power and violate Article 14 - the equality clause."
"The unfettered, unguided power conferred by the impugned provisions, thwart and throttle criminal investigation and are manifestly arbitrary, entirely perverse and patently unreasonable," he submitted before a bench, also comprising justices A K Patnaik, S J Mukhopadhaya, Dipak Misra and F M I Kalifulla.
The senior advocate said there is already a protection given to government officials under section 197 of the CrPC under section 19 of PCA.
"Thus, before cognisance can be taken of offences under the PC Act or the IPC sanction of the Central government or the state government or the competent authority is a prerequisite. This protection for all officials is available," he said.
"Further a privileged class of central employees is created," Divan said and added that it must be noted that the protection offered by way of previous approval does not extend to official employees who are not employees of the Central government.
The protection under section 6A is also not extended to employees of the Central government below joint secretary rank and employees of joint secretary level and above in the states, and enquiry and investigation of offences which are not covered by the PCA, Divan said.
Other individuals including ministers, legislators and private sector employees are also not brought under the ambit of section 6A.
The apex court is hearing the petitions, first filed in 1997 by BJP leader Subramaninan Swamy and later in 2004 by an NGO - Centre for Public Interest Litigation (CPIL).
They contended that movement of criminal law gets affected due to presence of section 6A in the statute which was recently manifested in the 2G spectrum and coal blocks allocation scams.