Whether A Judgment Striking Down A Provision Granting Immunity From Arrest Has Retrospective Application? Supreme Court Reserves Judgment
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The Supreme Court on Wednesday reserved its judgment 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 heard SG Tushar Mehta, for the UOI, and ASG S....
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The Supreme Court on Wednesday reserved its judgment 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 heard SG Tushar Mehta, for the UOI, and ASG S. V. Raju, for the CBI. Earlier, the SG 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…"
Court room exchange
SG Tushar Mehta: "The reference is on the ground that whether the deletion of the provision would affect article 20 or not. Article 20 says that if conviction is resulted from the law in force, it cannot be changed- whatever was the position at the time of commission of the offence should be the position, not any subsequent change in the penal provision. But that would not apply to procedural provisions. There is a binding precedent of a five-judge bench of this court which holds two things- that article 20 does not apply to procedural provisions, and secondly, for deciding the contours of article 20, US judgments are of no value"
On Tuesday, Senior Advocate Arvind Datar had urged that the bench read section 6A of the DSPE Act as an immunity not just from conviction but also investigation, and that such procedural safeguards are a part of Article 20(1)
Justice Kaul: "There being synergy on most of the issues on both sides, what is your apprehension"
SG: "There are two apprehensions, I will not even attempt to be diplomatic about it. Section 6A was brought in force by the government to protect the officers of the level of joint secretary and up. Now that is set aside on the ground of discrimination, of classification within the class. Section 17A (the new provision) is couched in a different way and my apprehension is that 17A is again under challenge in a PIL on the ground that 17A is contrary to Subramanian Swamy. My request to your lordships is to accept my submission that 17A is different"
Justice Kaul: "If a petition is pending challenging 17A, do we to foreclose all issues here? As a constitution bench, we have to be on the caution side. Otherwise, any stray observations, any going here and there creates a problem in the Constitution bench, because three-judges bench is bound"
SG: "The country runs through the bureaucracy. Bureaucracy is not dead always, they give inputs, ideas and that the country progresses. The threat hanging, of a potential prosecution, resulted in a policy paralysis. Nobody was writing notes, accepting new ideas, they would go by the conventional thing that we may do this"
Justice Kaul: "Yes, nobody will take decisions so long as (unclear)...where some decisions may go wrong, that is not the issue, but it should not be for malafide reasons or collateral considerations"
SG: "17A is not a new avatar of 6A. We take risks at times in the decision-making process, take new ideas, give new ideas, advise the government…"
Justice Kaul: "In a scenario where various issues are going on, stagnation is not the solution"
SG: "So limited protection is given"
Bench: "This is for the higher class of officers those who take decisions and make recommendations"
SG: "Correct. Because that is the only level at which decisions are taken and recommendations are given. Level of the officers below do not make recommendations, only place the facts for approval, for guidance, for decision etc, and the file moves. At some stage, you have to take a call. For example, we would leave the courtroom after making submissions. No responsibility. Your. lordships take the call whether one is right or other is right. That is the decision making process which is sought to be insulated from vexatious proceedings. It is not a prohibition, it is a kind of a protection…"
Justice Kaul: "It is a check or a protection for any government servant, irrespective of the hierarchy, who may be involved in the process of decision-making, in the bona fide exercise of decision-making power. Protection is given where the process is followed. You will not say the subordinate officer is not protected because he is the initiating officer. Suppose, he on record shows completely wrong facts and tries to elicit a proposal, that is a different situation…"
SG: "It is a proposal, not a recommendation. Suppose in a tender, we say these are plus points, these are minus points, the system of it is better but costlier, now place it for consideration. Sometimes, we have to choose the costlier but the more effective system. My apprehension is that in case your lordships say that 17A is only a different avatar of 6A, that might have an impact on the pending proceedings"
Justice Kaul: "17A seeks to cure the defect which resulted in 6A being struck down, which was that it was discriminatory. So you have tailored 17A in a narrow compass, you say, and cured that defect which resulted in the judgment. That is the only thing"
SG: "The other apprehension is that whenever a bench decides any lis of unconstitutionality that bench knows what has transpired before the declaration of unconstitutionality, what events have passed by, what would be consequence if prospectivity is not given. So my submission is that the law is that it is only that bench which decides whether to make it prospective or not. If any other bench subsequently were to decide, we would have floodgates of litigation, because several provisions may have been held unconstitutional without making it prospective, and now we may have petitions that pray that please declare that because of so-and-so reasons that judgment delivered 10 years back or 2 years back would have only prospective effect. Your lordships may consider saying, without laying down the law, that in the peculiar facts of this case, let it be held prospective because very few number of cases are there"
Bench: "The question is can it be done by another judge? If yes, will it not invite other people to come for other judgments and say that now you exercise Article 142 and make it prospective?"
Justice Kaul: "There is a protection provided to the officers. That protection in one form or the other continued for a long period of time. Ultimately, the statutory provision was struck down on the short ground that it was discriminatory, not that it was bad in law. Grant of protection per se was not held to be bad in law. What was held was that you cannot give protection to one group and not to another. That was the limited issue. Some hiatus period occurred. Ordinance was issued. Then you brought in legislation to cure the defect that the court pointed out to you. Now, to some extent, it is theoretical in nature- what would happen in the interim period. Let us look at the facts of the petitioner. He was protected. Because of the judgment, he became unprotected. Now because of the other judgment, he has become protected again. He says that 'As far as I am concerned, I am still protected, just because the protection was lifted for a small period of time, it should not affect me'. To my mind, one of the most crucial aspects is that this was not a mere re-enactment of legislation which took place where it was held that this legislation was bad in law, but on the ground of a particular defect which defect stands cured. Mr. Arvind Datar (Senior Advocate appearing in the matter) posed a larger issue for us to say that when a provision is struck down, the court must give some guidance as to how it would take effect- if it is prospective, the court specifically says prospective, if it is retrospective, the court says that. Some scenarios may be taken into account of the consequences where a legislation has been struck down"
Justice Kaul: "Mr. Datar is saying that for the future, lay down some guidance principles. I am very doubtful if we can even lay down…the only thing is that we are flagging an issue that while striking down the provision as unconstitutional, the bench is expected to look into this issue of consequences. Beyond that, we cannot say that in this scenario, you will do so. We are not theoreticians. We have a lis before us and it is our job only to decide the lis between the parties, not to go beyond"
SG: "(It may not be so) in a constitution bench format. That lis may or may not be relevant, your lordships are deciding a question"
Justice Kaul: "But we are not going to go here and there to decide it"
Justice Khanna: "A very, very limited issue arises now after the striking down of 6A. Somebody is saying that inspite of the section being struck down, that protection will continue because the offence is alleged to have been committed when is 6A was in the statute books. Now, one plea which we will have to deal with is the one taken on article 20 saying that this protection is covered by article 20 even if it is procedural. We will have to answer it one way or the other. The other issue is what is the effect thereof when a statutory protection is withdrawn or struck down as unconstitutional? should we say that it should apply prospectively and not retrospectively because certain anomalies may flow in case we say it will apply prospectively. Sometimes as judges we may need not be able to appreciate the full consequences. The legislature studies data, examines it, we do not have that; the bench may not be aware how many cases are there at the time when the judgment was pronounced. But to say that the court cannot declare that it is prospective may be difficult…"
Justice Kaul: "Suppose a review comes later on, that bench may not be available at all. We don't shut it out. You (the SG, for the UOI) are in a review of a Constitution bench which we had listed in the month of January. You, the government, has come after 19 years, can we say that it will not be decided by any bench other than the bench which had decided it?…I am being circumspect in laying down parameters because there will be exigency situations"
SG: "There may be some guidance for the future that while declaring a provision to be unconstitutional, it is desirable, may not be possible in all cases, but that it is desirable that the bench itself decides whether it is to be prospective…"
Justice Kaul: "Instead of guidance, we will flag this issue for further courts that in certain scenarios, it may be desirous to get into it. We must look into the wider connotation of all this"
ASG S. V. Raju, for the CBI: "I am only on the consequence if it is held to be prospective and not retrospective. One, 6A is not an immunity against trial. Trial can commence without sanction. In a police case, a private complaint is permitted. There, it cannot be an issue that there was no sanction. Secondly, the restriction under 6A is only confined to investigation under the Delhi Special Police Establishment Act. There may be a case where investigation is carried out by an agency which is not covered by the DSPE Act. In that case, there is no protection under 6A. So there may be an immunity or protection but that is not absolute or universal. It is a restricted protection. There is no embargo on police officers other than those covered by DSPE Act to investigate offences under the Prevention of Corruption Act…Supposing the Subramanian Swamy judgment is held to be prospective, and that 6A applies from the date on which it was enacted till the Subramanian Swamy judgment, then 2 situations would arise- one is that evidence is yet to be collected because there is no approval under 6A, or secondly, evidence has been collected in breach of 6A without approval. If 6A permissions would have been granted, they would not have appealed before your lordships so 6A has not been granted. Let us take a scenario where evidence has been collected, because investigation means collection of evidence. If in breach of statutory provisions like 6A, evidence has been collected, would they get Any protection? According to me, no protection would be granted, court can still take cognisance and if cognisance is taken that cognisance cannot be set aside on the ground that evidence was collected illegally. The second part is that suppose evidence is not collected and the police now want to collect evidence but now if they want to collect there is no question of it getting any approval under 6A because 6A not in force today. Therefore, the only thing is 17A. So today they will have to get an approval under 17 A. Because now 17A clicks in. They cannot say that you are collecting evidence today for an offence alleged to have been done before and the investigation for which was also to commence before Subramanian Swamy judgment so you get approval under 6A"
Case Title: CBI v. Dr. R.R. KISHORE
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