There are two relevant legal provisions.

Section 6A of the DSPE Act: This provision essentially states that the CBI shall not conduct even an enquiry or investigation into any instances of corruption against employees of the level of Joint Secretary and above without the prior approval of the Central Government.

Section 197 of CrPC requires sanction for court to take cognisance of an offence allegedly committed by a public servant, not removable from office except with the sanction of the government, in the discharge of his or her official duty. It applies to all ranks.

BACKGROUND

Prior to the landmark case of Vineet Narain vs Union of India in 1998, the substance of this provision existed in the form of an executive directive issued by the Central Government (“Single Directive”) to the CBI. Its stated objective was to “protect decision making level officers from the threat and ignominy of malicious and vexatious inquiries/investigations” and thereby “relieve them of the anxiety from the likelihood of harassment for taking honest decisions”. That’s how the rank of JS came into picture even in the Section 6A later.

The Supreme Court in Vineet Narain held the Single Directive null and void under the DSPE Act as it then stood.

The real effect of the Single Directive, as the Court noted, was to “thwart investigation of a cognizable offence instead of promoting the cause of justice by directing further investigation leading to a prosecution.”

Despite the Court’s criticism in the Vineet Narain case, the Parliament enacted the Single Directive as a law – as Section 6A of the DSPE Act (inserted via the CVC Act, 2003). 

After the Court’s decision in Vineet Narain, the Law Commission prepared a draft legislation which omitted (rightly) the Single Directive. Surprisingly, however, the Law Commission’s draft was reportedly withheld by the senior bureaucrats who instead placed their own draft Bill containing the Single Directive before the Cabinet for approval.

Despite a series of objections from various quarters and responses from the government, the Single Directive was passed as law. Moreover, the CVC Bill was passed by a mere voice vote.

DEVELOPMENTS IN CHRONOLOGICAL ORDER

Section 6A was inserted in 2003.

In 2005, a three-Judge Bench of the apex court headed by Justice Y K Sabharwal had referred to a Constitutional Bench the issue of validity of Section 6A of the DSPE Act, 1946, but over eight years later, the important matter is still to be heard and decided. This was on a petition of Subrahmanyam Swamy.

In Dec. 2006, in Parkash Singh Badal’s case it was held that the plea of applicability of Section 197 of Code of Criminal Procedure (CrPC), which requires sanction for prosecution of a public servant, was "untenable" with regard to the Prevention of Corruption Act.

In August 2013, a SC order that in court-monitored investigation into the alleged 2G scam, the CBI was not required to take prior sanction from the government to probe public servants of the rank of joint secretary or above, effectively quashed the statutory requirement for prior sanction under Section 6A of the DSPE Act, 1946, in so far as court-monitored probes are concerned.

Still, the position was not categorical.

This has been done in the recent judgment.

The court held as invalid and unconstitutional the provision in the law requiring government's approval to probe senior bureaucrats on corruption charges.

All government officials have to be treated equally and have to face the same process of inquiry in graft cases, the SC said, adding, "status of top bureaucrats is of no relevance in the offence under the Prevention of Corruption Act".

The apex court said such a classification of bureaucrats for investigation purposes violated Article 14 of the Constitution which mandated that law would treat everyone equally

"Prior permission from the Centre to probe corruption charges against joint secretary level officers would fetter the CBI from collecting evidence and also alert the corrupt to destroy evidence," the Supreme Court added.

"Protection of prior approval for probing graft charges against officers at level of joint secretary and above has propensity of shielding corruption," the Supreme Court said.

CIVIL SERVICE TYPE POSITION:

Some honest bureaucrats have unfairly faced the personal agendas and whims of politicians of differing factions as and when each such neta assumes power. The bureaucrat is understandably wary of being the fall guy in the saga of political vengeance exercised through the misuse of CBI.

Possibility of abuse exists. But one has to live with a smaller evil to eradicate a larger evil.

Interestingly, The provision in the Delhi Special Police Establishment Act, 1946 was passed under the NDA rule in 2003 despite vocal objections by Ram Jethmalani, among others, who is now a member of the BJP. It only goes to show the sheer strength of the bureaucrat lobby in having its way despite the party in power.