Supreme Court rules that 2014 judgment striking down Section 6A of DSPE Act is retrospective

The Supreme Court on Monday ruled that its 2014 judgment in Subramanian Swamy vs Director CBI, which struck down Section 6A of the 1946 Delhi Special Police Establishment Act (DSPE Act), would have a retrospective effect. [CBI v. RR Kishore].Section 6A had provided that prior Central government sanction was mandatory before the Central Bureau of Investigation (CBI) could conduct investigations in corruption cases against Union government bureaucrats from the rank of Joint-Secretary onwards.However, in a 2014 decision, in the case of Subramanian Swamy vs Director CBI, the apex court struck down Section 6A (1) on the ground that it was violative of Article 14 (right to equality) of the Constitution of India. In the 2014 decision, the top court had held that there cannot be a distinction between officials based on their status and rank.The 2014 ruling had, however, not clarified what would happen to existing cases being probed by the central agency..A constitution bench was, therefore, constituted to examine whether the 2014 decision would affect existing corruption cases. A bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath, and JK Maheshwari has now answered this question in the affirmative and held that the 2014 judgment would have retrospective effect. The Court clarified that Section 6A will be considered as never having been in force.The bench, however, added that it has not decided on any case or appeal on merits."Once a law is declared to be unconstitutional, being violative of Part-III of the Constitution, then it would be held to be void ab initio, still born, unenforceable and non est in view of Article 13(2) of the Constitution and its interpretation by authoritative pronouncements. Thus, the declaration made by the Constitution Bench in the case of Subramanian Swamy (supra) will have retrospective operation ... this Court has not delved into the other issues and arguments not germane to the reference order," the Court said..The verdict, reserved on November 3 last year, came on a case dealing with the following questions of law: (i) Whether Section 6A of the DSPE Act is part of procedure or it introduces a conviction or sentence? (ii) Whether Article 20(1) of the Constitution will have any bearing or relevance in the context of declaration of Section 6A of the DSPE Act as unconstitutional? (iii) [Whether] The declaration of Section 6A of the DSPE Act as unconstitutional and violative of Article 14 of the Constitution would have a retrospective effect or would apply prospectively from the date of its declaration as unconstitutional?.The Court has determined that Section 6A is a part of the legal procedure exclusively applicable to senior government servants."Section 6A of the DSPE Act does not lay down or introduce any conviction for any offence. It is a procedural safeguard only which is enumerated in Section 6A of the DSPE Act with regard to making of an investigation or enquiry of an offence under the PC Act, 1988. Section 6A of the DSPE Act also does not lay down any sentence nor does it alter any existing sentence for an offence."Further, it found that Article 20(1) of the Constitution had no bearing on the constitutionality of Section 6A of the DSPE Act.Article 20(1) lays down that no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act."Article 20(1) of the Constitution only and only confines to conviction and sentence. It does not at all refer to any procedural part which may result into conviction or acquittal and/or sentence ... Change in procedure post the offence not attracting Article 20(1) of Constitution has been the settled law.".In the instant case, the accused was arrested while accepting a bribe. The accused had challenged the prosecution for want of sanction. The Delhi High Court had earlier directed the central agency to get the necessary approvals and restart the probe. While a challenge to the High Court decision was pending before the top court, the 2014 decision in the Subramanian Swamy case was delivered. .Solicitor General (SG) Tushar Mehta, appearing for the Central government, had submitted that Article 20 does not apply to procedural provisions. Senior Advocates Arvind Datar and Amit Desai, appearing for an accused (one Manjit Singh Bali), argued that Section 6A of the DSPE Act had been an immunity not just from conviction but also from investigation, and that such procedural safeguards are part of Article 20.He added that after a provision is struck down, the Court must specify as to how it would take effect with respect to being prospective or retrospective. During the course of the hearings, Justice Kaul had earlier suggested that perhaps the courts can clarify this aspect as and when needed.Additional Solicitor General (ASG) SV Raju, appearing for the CBI, stated that Section 6A had not been an immunity against trial, which can commence without sanction..[Read judgment]