Are some more equal than others?

The civil service bill placed in parliament on Sunday with a provision to shield government employees from arrest by police in cases filed against them on charges of criminal offences committed in connection with their duties, raises question if political memories are really wafer thin. Section 41 of the bill moved by the government weeks before the parliamentary election makes it mandatory for law enforcement agencies to take prior permission from the government to arrest a government employee accused in a criminal case if they want to arrest him, before a court accepts the charges against him.

Usually, the police are legally empowered by criminal laws to arrest anybody immediately after the filing of a case against him or her for committing criminal offences like murder, corruption, bribe, extortion, vandalism etc. After making arrest, the police carry out their investigation and submit charge sheets before the court to hold trial. Then the court either accepts or rejects the charges. On acceptance of the charges, the court begins trial by framing the charges against the accused.

But the provision, if it is turned into law through the passage of the bill, will put government officials in a privileged class by making them “more equal” than the rest of his/her fellow citizens—making it mandatory for the Anti-Corruption Commission to take permission for arresting any public servant. No other people in the country will enjoy the same privilege. Thus, in light of several judgements delivered by the apex court, the proposed provision clearly runs counter to some constitutional provisions including equality before the law and right to equal protection of law. This provision also confronts the constitutional prohibition set by article 28 (1) on discrimination on grounds only of religion, race, caste, sex or place of birth.

Such a move is not a new one. Almost a similar provision was introduced in November 2013, weeks before the last parliamentary election held on January 5, 2014, making it mandatory for the ACC to take permission from the government to file cases against government officials on graft charges.

The provision was widely criticised in the public domain. Its legality was challenged with the High Court which struck it down in January 2014. In the verdict, the court said: “Our Constitution does not allow any body to get special privilege for restraining to file corruption case against him/her.”

“The embargo of prior permission and/or sanction from the government to lodge corruption case has created an inconsistency with the fundamental right guaranteed in Part III of the constitution,” it stated.

The HC stressed that insertion of Section 32Ka of the Act, 2013 that introduced the special provision had interfered with the independent function of the ACC and had frustrated the object of the Anti-Corruption Act, 2004.

Referring to the controversial provision introduced in the ACC Act 2004, the HC said: “We must maintain that if the Statute would purport to confer absolute unbridled powers upon the executive to pick and choose parties for the purpose of more beneficial or prejudicial treatment, it shall be liable to be struck down for being foul to Article 27 of the Constitution.”

Article 27 of the constitution reads: “All citizens are equal before law and are entitled to equal protection of law.”

“The protection in Section 32Ka which was introduced in the ACC Act has susceptibility of shielding the corrupt. We hold that the provision suffers from the vice of classifying offender differently for treatment there under for inquiry and investigation of offences, according to their status and/or rank in life,” asserted the HC bench of Justice Quazi Reza-Ul Hoque and Justice ABM Altaf Hossain in the verdict delivered on January 30, 2014.

The HC said that every person accused of committing the same offence is to be dealt with in the same manner in accordance with law. The status or position of preferential person does not exempt them from equal treatment under article 27 of the Constitution, it added.

In striking down the controversial provision, the HC unequivocally pronounced that decision-making power does not isolate corrupt persons into two classes when they have committed a crime and have to be tracked down by the same process of inquiry and investigation. “The corrupt persons, whether privileged or general people, are birds of the same feather and must be confronted with the process of investigation and inquiry equally, based on the position or status in the society, no distinction can be made,” said the HC verdict.

More than two and a half decades before the HC verdict, the Appellate Division in Sheikh Abdus Sabur versus Returning Officer & Others case in 1988 strongly opposed classification of persons for the purpose of legislation. The apex court observed that: “Classification of persons for the purpose of legislation is different from class legislation, which is forbidden. To stand the test of ‘equality’ a classification, besides being based on intelligent differentia, must have reasonable nexus with the object of the legislature intends to achieve by making the classification.”

“A classification is reasonable if it aims at giving special treatment to a backward section of the population; it is also permissible to deal out distributive justice by taxing the privileged class and subsidising the poor section of people. What is of fundamental importance in law making is that while making a classification the legislature shall not act arbitrary but must make selection on rational basis. In the light of these observations I shall see whether the impugned legislation is supportable in terms of ‘equality of law’ with the meaning of Article 27 of the Constitution.”

In the 2014 verdict, the HC also referred to some landmark verdicts delivered by the Indian Supreme Court upholding the principle of equality. It said the equality protection, similar to our constitution, is guaranteed in Article 14 of the Indian Constitution. The Supreme Court of India had time and again observed that the principle underlying the guarantee of Article 14 of the Constitution is that all persons similarly placed shall be treated alike, both in privileges conferred and liabilities imposed.

In Maneka Gandhi versus Union of India the Indian SC in 1978 observed that: “Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits Article 14 strikes at arbitrariness in State action and ensures fairness and equality treatment.”

The Indian Supreme Court in Ramana Dayaram Shetty versus International Airport Authority of India pronounced that “a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which itself was not irrational, unreasonableness or discriminatory.”

Given the above, the civil service bill raises the most crucial question: what should our parliament now do in regard to the civil service bill. Does it turn it into law with its legislative power which is not unlimited? Our Constitution imposes restrictions on the parliament’s legislative power in article 26 (2) which says: “The State shall not make any law inconsistent with any provisions of this Part [III which deals with fundamental rights], and any law so made shall, to the extent of such inconsistency, be void.”

The bill was sent to the parliamentary standing committee on the public administration ministry for scrutiny. The committee should test Section 41 of the bill that seeks to shield government employees from arrest in criminal cases like corruption, bribe, extortion and abuse of power.

The intention of seeking to introduce such a provision to shield government employees remains in question even after knowing the fate of the controversial provision introduced in the ACC law in 2013.

Before concluding, let’s quote from the Shujat Ali versus Union of India case verdict delivered in 1974 by the Indian Supreme Court in which the apex court said: “The doctrine of classification should not be carried to a point where instead of being a useful servant, it becomes a dangerous master.”

Shakhawat Liton is Planning Editor, The Daily Star.

Source: The Daily Star.