Whether Striking Down of a Provision Granting Immunity from Arrest Would Have Retrospective Application? Supreme Court CB Commences Hearing
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The Supreme Court on Tuesday commenced hearing on the issue of whether striking down of a provision granting immunity from arrest would have retrospective application, especially in view of rights protected under Article 20 of the Constitution.The 5-Judge Bench of Justices S.K. Kaul, Sanjiv Khanna, A. S. Oka, Vikram Nath and J. K. Maheshwari was hearing the matter. Earlier, SG Tushar Mehta,...
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The Supreme Court on Tuesday commenced hearing on the issue of whether striking down of a provision granting immunity from arrest would have retrospective application, especially in view of rights protected under Article 20 of the Constitution.
The 5-Judge Bench of Justices S.K. Kaul, Sanjiv Khanna, A. S. Oka, Vikram Nath and J. K. Maheshwari was hearing the matter. Earlier, SG Tushar Mehta, for the UOI, had stated that once a provision is struck down, it would be considered as if the provision never existed. Senior Advocate Arvind Datar had refuted that submission. Section 6A (1) of the Delhi Police Special Establishment Act, 1946 contemplates that before conducting investigation or inquiry under the Prevention of Corruption Act, the CBI ought to seek sanction of the central government, where such allegation relates to- (a) the employees of the central government of the Level of Joint Secretary and above; and (b) such officers as are appointed by the central government in corporations established by or under any central Act, government companies, societies and local authorities owned or controlled by that government. Section 6A(2) provided exception from such approval in cases of spot arrest. In 2014, the Apex Court in Subramanian Swamy v. Director CBI had struck down Section 6A(1). In the present matter, the accused was arrested while accepting a bribe. As the arrest was without sanction, he challenged the same. CBI argued that his case falls under the exception in Section 6A(2). The Delhi High Court noted that the CBI had already proceeded with investigation prior to the arrest and therefore, the present case would not fall under the ambit of Section 6A(2). It asked CBI to seek central government's approval and reinvestigate. In 2007, CBI assailed the order of the High Court before the Supreme Court. While the matter was pending adjudication, Section 6A(1) was struck down, but applicability of the same on pending cases was not clarified by the Apex Court. The Division Bench, while referring the matter to the Constitution Bench, by its order of 10.03.2016, formulated the issue as under- "Whether there can be a deprivation of such immunity by a retrospective operation of a judgment of the Court, in the context of Article 20 of the Constitution of India…"
Advocate R. R. Kishore, appearing as party-in-person: "The Union of India filed a very detailed affidavit in a very unusual manner against the CBI. That affidavit was not filed by them themselves- the division bench of this hon'ble court gave suo motu notice to the Union of India, taking into account the fact that the Union of India is answerable for the functioning of the CBI as per Vinod Narain's case. On 27th of April, 2012, this hon'ble court issued suo motu notice to the Union of India which was replied to by them, where it has been categorically stated that the CBI does not have jurisdiction to initiate investigation against the respondent without the prior approval of the central government. The Union of India, after a detailed analysis, has stated that the CBI action was illegal and the judgment of the Delhi High Court is fully consistent with law"
Dr. Kishore: "I have read the position across jurisdictions- civil law and common law. For a brief period in the 19th century, William Blackstone, who wrote commentaries on the laws of England, implanted a doctrine of retrospectivity and retroactivity. He said that a judge never makes a law but just finds it, so where is the question of retrospectivity; that the law was there, it was just to be found. This remained the position for about half a century. From 1902 onwards, there are over 50 judgments till date in which all the courts have unanimously accepted that when a court finds a statute is unconstitutional, that will take effect from the date of judgment, it cannot be accorded retrospective implication. Because what has been done in the past cannot be wiped out. The US Supreme Court has said that a legislation is not a piece of waste paper, it is a law which has been passed by the legislature and the citizens are bound to obey it, that it cannot be said that tomorrow it may be declared unconstitutional. So that means that if that unconstitutionality takes effect retrospectively, then the citizens are following the law at their own peril. So that theory of Blackstone was totally discarded throughout the world"
Justice Kaul: "That is a rather expanded interpretation of it. Suppose the law is declared unconstitutional, the court can say the judgment will apply prospectively. If that law is not supposed to exist in the statute books and is obliterated, can one say that the protection, or prosecution, of that law, till it is obliterated, will survive?
Dr. Kishore: "Many persons who were alleged to be corrupt or alleged to be taking a bribe, were not investigated because the approval was not given. So how can the law become retrospective? How will they be prosecuted? The General Clauses Act is very clear that even if there is an immunity, it cannot be nullified. Law will not have effect to wipe out the past"
Justice Kaul: "Here, the law in question was protective. You are saying since it is a protective law and that protection is taken away by this judgment, so that judgement should be applied prospectively. Suppose there is some law which is prosecutive in nature and it is held to be impermissible in law, it cannot be said that earlier prosecutions will go on. Suppose there is something where the prosecution under the statute is held to be impermissible in law- IT Act section 66A, for example. We cannot say that it will operate from Day 1 because prosecutions may have started?Your argument, therefore, has a nuance to it, which is that this is a protective regime and when you lift a protective regime by a judgment, then that should not operate retrospectively"
Dr. Kishore: "In Subramanium Swamy, this court said we are not against the protection but that you have extended the protection to a certain class of people which is discriminatory and violative of 14, and that needs correction. The legislature said now protection may be applicable to all government employees, regardless of rank. There are several judgments of this court to the effect that if an error has been pointed out by the court of law, and if that error is cured, then the law is restored. There is no question of retrospectivity. I think retrospectivity is a non-issue"
Justice Kaul: "The issue is not that the legislature has enacted something to prosecute you retrospectively. The issue is that there was a particular provision which gave you protection, the court held it to be unconstitutional for whatever reasons. You say that normally, a judgment is a declaration of law and would apply to all scenarios, except in a scenario where the judgment says prospectively. Your argument is that since the provision was protective in nature, so the declaration of law subsequently could not deprive you of the protection. Your second submission, as I understand, is that on the law so declared by the court, the legislature in its wisdom tried to cure the defect due to which the law was declared unconstitutional, and on that curing process having taken place, this becomes more of an academic issue....The Court declares the law. The principle is that the law will apply as declared, but the court can deal with scenarios which may arise and say that this law will apply only prospectively. You are in a situation where you have a protective umbrella which is sought to be lifted. But there may be grievous situations where the methodology of prosecution is declared ultra vires. Can we say that those people who have been prosecuted earlier will continue to be prosecuted and only future prosecution will not be done? How can that be? So declared law will apply, unless said to be applicable prospectively. You felt that here, it should be interpreted prospectively because the umbrella was sought to be lifted which was a protection in your favour....Number two, there was a hiatus period because earlier the protection was there, then the protection was lifted, then the protection was brought back. You say that once the protection has been brought back by the legislature, how can it be ineffective? But it will be very difficult to sustain if you prospectively try to prosecute somebody for offences created now"
Dr. Kishore: "This doctrine of prospectivity came in the Golak Nath case in 69 for the first time. This court then said the prospectivity doctrine is a valid doctrine. Then came the Bank Nationalisation case where it was ruled that that Act nationalising the banks was unconstitutional. The question immediately arose before the bench as to what will happen to the past transactions. So the judges, in order to combat that situation, have mentioned in the concluding paragraph. So in case retrospectivity is desired, that has to be expressly stated in the judgment. That is the law. Not the prospectivity. In Subramanian Swamy, it says the judgment is invalid. It does not say it is void. There is a difference between void and invalidity. Invalid means not operational or not enforceable, even though it exists. Void means it does not exist. So invalid can be revived, like a person on a ventilator"
Justice Kaul: "Law does not remain on ventilator. Law is as it exists. It does not remain on the statute books once it is struck down as invalid. It was like it had never existed. It is obliterated. Show me any authority which says that even after declaration of law as invalid, that law continues to remain on the statute book...Your best case forward is only that this is a protective measure available to you and since the protective measure has been declared as ultra vires on the principle of discrimination and the legislature in its wisdom brought it back, removing the discrimination and in fact extending it, it should not be lifted in the interregnum period. That is the only argument which I think can be made"
Justice Kaul: "We are also conscious of the anomalous notion which is following from that there was protection earlier, then no protection, then extended protection. They were in a flux. It was a protection available till the court said discriminatory in character. Because discriminatory, it was struck down. Legislature removed the discrimination and extended it to all kinds of officers and to retired people. Between the judgment in the Subramanian Swamy case and the new law coming into force, there was a little hiatus period. So the complication arising from that hiatus period we have to look into"
Dr. Kishore: "For that hiatus period, it cannot be erased"
Justice Kaul: "It will be very difficult to say that a law which is violative of equality can be held to be only inapplicable prospectively. But let us say we understand the problem and try to find out what is to be done- When a law is declared to be unconstitutional, and then that discrimination is removed by the legislature and a new law comes into force, but in that process some three years elapsed. We being the final court, being the constitutional court, it may not be advisable to get into academic areas"
Justice Khanna: "If you can bring it within the four corners of the reference, it is fine. If you cannot confine, then it must go"
Senior Advocate Arvind datar: "If your lordships hold that protection under 6A was in the nature of an immunity, then will your lordships may read that protection into article 20. Article 20 does not go in isolation, it is read with 21...Except for one period of 18 months, from 1959 to now this protection always continued. Subramanian Swamy says it is invalid, it is obliterated, the law never existed. So what happens in cases where sanction was granted, or not granted? That is the problem...Whenever a court declares a statute to be unconstitutional, it is my humble request that the court should also point out what would be the effect of its judgment. Because there are so many cases where it is unknown. In Tamil Nadu, for example, if your property is more than Rs.400, Rent Act protection will not apply, you have to go for a suit. In 1986, the Supreme Court struck down the law. Then what happens to 1960 to 1986? Take criminal Law- Your Lordships said that a person suffering life imprisonment is not a different class and it should not be that they are not entitled for any mercy at all. So what happens in the interim?"
Justice Kaul: "While interpreting, we will have to see what is the consequence of a protective law which has been struck down. It will be different from a prosecuting law which has been struck down. Also if a protective law is struck down, some consequences may arise and you may feel that the consequences should normally be enunciated by the court while striking down the law. Besides the second aspect is also when the law was struck down, here, the reason was that it is discriminatory and violative of Part III. But this discrimination is removed by bringing in a new law. The legislature in its wisdom also thinks that that protection should be there, but since it granted protection only to a particular class of people, it says that now we will widen the protection and remove the discrimination. So when that law comes into force, it will have application from that date of the law. So people who may be falling in any of the categories will get protection. Now there is a hiatus period of 18 months or whatever when the law was inactive and it was struck down. How should the court read it? It is difficult per se to say that if a law is struck down, the judgment will not apply retrospectively. That is very difficult. It will apply prospectively, if it is said so otherwise, the law will be obliterated. But there are different nuances, what happens when a protection in a protective law, that too on the criminal side, is removed because it is discriminatory, and then the discrimination is removed? To some extent, it is academic in character"
Justice Kaul: "We are today faced with this judgment. You can't go into the history of what should have been done in that judgment. Are we supposed to consider it on the point of view that there was a law which was protective in nature and was struck down only on the ground of arbitrariness because it sought to exclude some people from the protection while including others? My concern is that in this larger context of which you are making a proposition, it can create worse problems.To preserve all that is done? Look at the reserve scenario. This is a protective law, what happens if it was a prosecuting law?
Justice Khanna: "The ultimate effect is whether you call it ineffective, stillborn or whatever, like for example section 66A, that it cannot be enforced"
Mr. Datar: "If your lordships are not to strike down a provision of the Income Tax Act, that section will not be a stillborn. The court says the correct terminology is to say it is ineffective now"
Justice Kaul: "Once it is declared ultra-vires, all that is to be said is that in view of so-and-so, it is struck down. The law would not be on the statute book once it has been struck down. You may say it is omitted, but it does not exist. There may be scenarios where the court should proceed further and analyse what could be the consequences of striking down that law- if it is not to operate from day one, are there consequences which need protection. The difficulty is how do we say what will happen in each scenario. All we can say is that there are nuances which may arise and the court should be cognisant of the scenario and if required, they may pass certain consequential directions. Normally, the law does not exist after it is struck down. But there may be scenarios where the consequences may be taken care of. But since that law has been in force for sometime, the court may pass consequential directions. But once it is struck down, once it is omitted, or whatever, it will not be on the statute book"
Mr. Datar: "If Your Lordships have declared section 42 of the Income Tax Act unconstitutional, it will not be obliterated, it will continue to be there"
Justice Kaul: "When you print out the Act, will it be there?"
Mr. Datar: "Yes, it will be there"
Justice Kaul: "But at the base, it will say struck down or omitted or this is how the provision stood then"
Mr. Datar: "Judicial act does not change the law, it only makes it inoperative. If the Parliament enacts a law with hundred sections and your lordships strike down six of them, that will not have the effect of obliterating those sections"
Mr. Datar had also prayed that the bench read section 6A of the DSPE Act as an immunity not just from conviction but also investigation.
Mr. Datar: "Article 20(1) can be read in two parts- punishment at the stage of pre-conviction, and punishment which can be given only when one is found guilty. The first part of 20 clause (1), at the pre-conviction stage, will also include all procedures required (procedural safeguards)..."
Justice Khanna: "Article 20(1) does not speak of procedure of law. It is very, very specific. It deals with the kind of substantive law under which you are convicted. We have to be very careful when you are expanding the doctrine to include procedural law. But it is not to say that procedural law must not be fair. If it is unfair, it will be hit by 21 or 14"
Mr. Datar: "Literally, it only deals with substantive law. But please interpret 20 clause (1) with 21. It should encompass both procedural safeguards and substantive safeguards"
Bench: "The police should not have any power of investigation or enquiry should be read into as a basic right conferred under clause (1)? Reading the provisions of article 21 into 20 clause (1) would create a lot of issues and problems in a given situation. When we lay down the law, rights under article 21 are definitely protected. But one cannot say that sanction is protection under 21. The fact that investigation and enquiry is carried out by a third party is a protection in itself. In 1973, the Cr. P. C. changed. There are amendments also in the Prevention of Corruption Act with regard to the procedural power from time to time. So it will create a lot of issues"
Mr. Datar: "So now I would request you to not read 20 clause (1) and 21 in separate silos. Now I would submit that personal liberty should be preferred over an interpretation that would suppress personal liberty"
Bench: "We are not saying it should be read in separate silos. What is being said is that the procedure is under 21, and as regards substantive part, it is a specific protection against penalisation of past acts. The question is if you are protected under article 21, should we expand the scope of article 20 clause (1)? Immunity that you are referring to pertains to a procedural investigation. It is an embargo on the power of investigation. Bar of investigation. Bar on investigation or enquiry will be covered by article 20 clause (1)?"
Mr. Datar: "My only submission is that please read 6A as an immunity not just from conviction but also investigation. When you are giving immunity to civil servants, you will not be subjected to enquiry or investigation without the prior approval of the central government. That should be taken as protection under article 20 clause (1).
All the immunity and not just substantive law is part of article 20 clause (1). Take it away prospectively, nobody has a problem with that"
Case Title: CBI v. Dr. R.R. KISHORE
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