Public Servants Lose Immunity In Pre-2014 Corruption Cases; Supreme Court Clarifies That Striking Down Of Sec 6A DSPE Act Has Retrospective Effect
In a significant development, a constitution bench of the Supreme Court on Monday declared that its 2014 judgment, which declared Section 6A of the Delhi Special Police Establishment Act 1946 as unconstitutional, will have retrospective effect. This means that Section 6A is held to not be in force right from the date of its insertion.Section 6A of the DSPE Act required the Central Bureau...
In a significant development, a constitution bench of the Supreme Court on Monday declared that its 2014 judgment, which declared Section 6A of the Delhi Special Police Establishment Act 1946 as unconstitutional, will have retrospective effect. This means that Section 6A is held to not be in force right from the date of its insertion.
Section 6A of the DSPE Act required the Central Bureau of Investigation to obtain prior sanction from the central government to investigate corruption cases against an officer of the rank of joint secretary and above. This provision was struck down as unconstitutional by the Supreme Court in Subramanian Swamy v. Union of India. The issue before the present constitution bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari was regarding the retrospective effect of this ruling. Answering the reference, the court has now ruled that its earlier decision will have a 'retrospective operation'.
Justice Nath, who orally pronounced the judgment on behalf of the bench, stated the following conclusions:
- The struck-down Section 6A of the Delhi Special Police Establishment Act was a part of the procedure only and did not constitute any new offence or sentence.
- Article 20(1) of the Constitution has no bearing or relevance in the context of the declaration of Section 6A as unconstitutional, either to the validity or the invalidity of this provision.
- The declaration made by the constitution bench in 2014 as to the unconstitutionality of Section 6A of the DSPE Act will have a retrospective effect. This section is held to be not in force from the date of its insertion, i.e., 11.09.2003.
The court had reserved its judgment in November last year after hearing arguments over the pivotal issue, i.e., whether a 2014 judgment striking down Section 6A(1) of the Delhi Police Special Establishment Act, 1946, which mandated central government sanction for investigations involving certain government officials, would retrospectively apply to pending cases.
During last year’s hearing, the contours of Section 6A(1) of the Delhi Police Special Establishment Act, 1946 were discussed at length, especially in the context of the protections safeguarded under Article 20 of the Indian Constitution. This clause bars the State from punishing an individual for an act that is not an offence at the time of its commission, or imposing a greater punishment than what was provided in the law when the crime was committed. While Solicitor General for India Tushar Mehta argued that Article 20 did not apply to procedural provisions, citing a previous Supreme Court ruling, Senior Advocate Arvind Datar contended that Section 6A should offer immunity not just from conviction but also from investigation and that such procedural safeguards formed a part of Article 20(1). Apart from this, Additional Solicitor-General SV Raju appeared for the Central Bureau of Investigation and touched on the potential consequences of holding that Section 6A would have a prospective, and not retrospective, application.
Background
Under consideration by the Supreme Court constitution bench was the question of whether a person could be deprived of any immunity conferred statutorily by retrospective operation of a judgment striking down the immunity-granting provision. This issue was referred to the five-judge bench in March 2016 by a division bench of the court.
This case stemmed from an arrest made under the Delhi Police Special Establishment Act, 1946 without prior sanction, prompting a legal challenge on grounds of violation of Section 6A which mandated the Central Bureau of Investigation to take prior sanction of the government before investigating an officer of the rank of joint secretary and above in corruption cases. The Delhi High Court ruled that since the Central Bureau of Investigation had initiated the investigation before the arrest, the exception contained in Sub-section (2) of Section 6A for spot arrests would not apply. Accordingly, the high court directed the agency to seek central government approval for reinvestigation. This decision was challenged by the CBI in the Supreme Court in 2007, but while the matter was being heard, Section 6A was declared unconstitutional in Subramanian Swamy (2014). However, the application of this ruling to pending cases remained unclear, which is why the issue was referred to a constitution bench in the current case. The five-judge bench reserved its verdict in November 2022 after hearing the oral arguments.
Reports explaining the reasoning of the judgment can be read here.
Case Title
Central Bureau of Investigation v. Dr RR Kishore | Criminal Appeal No. 377 of 2007 and other connected matters
Citation : 2023 LiveLaw (SC) 770; 2023INSC817