Chandrababu Naidu's Case : Live Updates From Supreme Court Hearing [Day 4]

Rohatgi: This is the answer to Your Lordships' query about an FIR today under a now-repealed law.

Justice Trivedi: Let's take the example of Section 377 to the extent that it was struck down by this court. Could an FIR be lodged now under this section?

Rohatgi: That's different. The unconstitutionality will be deemed to be the date from time of inception, unless Your Lordships make it prospective, which is a rare phenomenon. 

Rohatgi: When repeals happen usually, some part of old law will go. But the old act will survive with respect to offences before the repeal, unless the legislature demonstrates a different intention.

Uses example of specific intention disclosed in FEMA which repealed FERA.

Rohatgi: Counsel in that case submitted that FIR could not have been lodged. Look what the court said. In my case, Naidu is charged today under Sections 13(c) and (d), which were repealed later, in respect of an offence predating the repeal. 

Rohatgi reads out from MC Gupta -

"There is no substance in the contention that the appellants could not have been charged under the provisions of the Act of 1947 after its repeal. The offence is alleged to have been committed prior to the coming into force of the new act."

Sr Adv Mukul Rohatgi: Your Lordships had asked me on the last occasion whether an FIR can be lodged under an offence which has now been repealed. There's a judgment on this exact point.

Refers to MC Gupta (2012).

Luthra: There are merry-go-rounds in circuses. We are in the merry-go-round now. They are going after [Naidu] in one case after the other.

Justice Trivedi: You're raising a Section 17A challenge here also?

Luthra: Yes, that's there everywhere. 

Justice Bose: These are not directly connected but it will have some overall impact.

Luthra: The plea relating to the [skill development scam case] has some relevance here. In the other case, they sought a production warrant and asked Naidu to be produced on 16th.

Justice Trivedi: For questioning?

Luthra: For arrest, I presume. Which is why we needed to move now.

Justice Bose: We'll take both at 2 PM.

Sr Adv Sidharth Luthra: These two are slightly different. The issue is different.

Justice Trivedi: Yes, cases are different. We know.

Luthra: Whatever is convenient, we'll be here at 2.