Supreme Court: While considering whether declaration made in Subramanian Swamy v. CBI, (2014) 8 SCC 682 regarding unconstitutionality of Section 6-A of Delhi Special Police Establishment Act, 1946 (‘DSPE Act’) could be applied retrospectively in context of Article 20 of Constitution of India, the Constitution Bench of Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath* and J.K. Maheshwari, JJ. held that its decision in Subramanian Swamy (supra) declaring Section 6-A of DSPE Act unconstitutional, shall have retrospective effect, to be ineffective from the date of its insertion.
Background: Why did the Court consider applicability of retrospective effect of Section 6A of DSPE Act?
The appellant in the instant matter, i.e., the Central Bureau of Investigation (‘CBI’) registered a First Information Report on 16-12-2004 at 2 PM for offences under the Prevention of Corruption Act, 1988 (‘PC Act’) and thereafter laid a trap on the same day wherein, the respondent was said to have accepted bribe for setting things right for the radiologist conducting pre-natal Test for determining sex of the foetus, in contravention of Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. The respondent applied for discharge on the ground that the said trap was part of enquiry/investigation laid without prior approval of Central Government as against the requirements under Section 6A of DSPE Act.
The CBI Special Judge rejected the said application for discharge and the same was carried out for revision before the High Court. The Single Judge of Delhi High Court framed 3 questions regarding background of Section 6-A of DSPE Act, CBI’s act in accordance or contravention of the said provision, and whether it may lead to vitiation due to illegal investigation. While answering the first two aspects in respondent’s favour, the High Court left it open to the competent authority to decide and proceed with reinvestigation, and to close the case for lack of sanction. CBI challenged the said judgment of the High Court in the instant appeal stating that not Section 6A(1) but Section 6-A(2) of DSPE Act would apply, and the High Court erred in deciding the matter. The Court observed that while the appeal was pending since 2007, Section 6A of DSPE Act was declared invalid and violative of Article 14 of Constitution by the Constitution Bench in Subramanian Swamy (supra) and kept the question open on whether the same would apply retrospectively or prospectively. The said question was referred to the Constitution Bench in CBI v. R.R. Kishore, (2016) 13 SCC 240.
Considering the fact that Section 6A(1) indicates that officers of the level of Joint Secretary and above have been provided with a kind of immunity, the Court framed the moot question of “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.”
In another Criminal Special Leave Petition (SLP) filed against decision dated 29-11-2010 in Manjit Singh Bali v. CBI wherein, the Bombay High Court dismissed petition for quashment of FIR registered by CBI under Sections 7 and 8 of Prevention of Corruption Act, 1988 (‘PC Act’) pursuant to a raid which led to petitioner’s arrest and recovery of cash from his car. The said matter also involved the same question regarding applicability of Section 6-A(1) or 6-A(2) of DSPE Act.
Court’s Analysis on Prospective or Retrospective Effect of DSPE Act Section 6A
After considering the arguments on behalf of CBI, Union of India, respondent R.R. Kishore (in person), and Manjit Singh Bali (appellant in SLP), the Constitution Bench framed and considered the following questions:
Whether Section 6A of DSPE Act is part of procedure, or it introduces a conviction or sentence?
Whether declaration of Section 6-A of 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?
Analysis on Prior Sanction
The Court was confined to the specific question, did not enlarge the scope of reference made to it, and reverted the matters back to the Regular Bench hearing the matter. The Court referred to the history of obtaining sanction before launching prosecution, particularly highlighting Directive No.4.7(3) issued by the Central Government containing instructions regarding modalities of initiating an enquiry or registering a case against certain categories of civil servants requiring prior sanction of Designated Authority to initiate investigation against and Public Sector Undertakings and Nationalized Banks. Validity of Directive No.4.7(3) was considered in Vineet Narain v. Union of India, (1998) 1 SCC 226 and held invalid, thereby struck down.
The Court noted that a similar sanction was introduced vide ordinance on 25-08-1998, lapsed on 27-10-1998, and then in 2003, Section 6A was inserted in DSPE Act vide Section 26(c) of Central Vigilance Commission Act, 2003 which remained functional for more than 10 years until being declared unconstitutional in Subramanian Swamy (supra). Then again, the Parliament inserted Section 17A in PC Act, 1988 on 26-07-2018 which also provided for sanction before prosecution, but without any classification of Government servants, ultimately protecting all government servants regardless of category, class, or level. The Court also pointed towards the two years in between the two provisions, when no such protection of sanction was available.
Article 20(1) of Constitution v. Section 6A of DSPE Act
The Court scrutinised DSPE Act Section 6A providing protection to certain categories of Government servants, and the decision of Constitution Bench in Subramanian Swamy (supra) declaring the said provision invalid and unconstitutional and in violation of Article 14 of the Constitution. The Court examined whether Section 6-A of DSPE Act would amount to conviction or sentence, or dould only be a procedural aspect and held that Section 6A of DSPE Act is part of the procedure only, in the form of a protection to senior government servants and does not introduce any new offence or enhances punishment/sentence.
While reproducing Article 20(1) of Constitution, the Court expressed that its first part prohibited law prescribing judicial punishment for violation of law with retrospective effect. It clarified that the conviction or sentence for any offence under an ex post facto law was prohibited, and not the trial itself. The Court cited Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, (1953) 2 SCC 111 highlighting principle underlying prohibition of ex post facto law and further said that “The right under first part of sub-article (1) to Article 20 of the Constitution is a very valuable right, which must be safeguarded and protected by the courts as it is a constitutional mandate.” It further cited State of W.B. v. S.K. Ghosh, (1963) 2 SCR 111 to explain the scope of Article 20(1) around conviction or punishment, and a few other cases in this regard.
Law under Article 13 and Retrospective or Prospective application
The Court pointed out that the said judgment declared Section 6A of DSPE Act unconstitutional for violating Article 14 of Constitution due to classification of government servants and proceeded to consider whether the said decision would apply retrospectively or prospectively. While discussing the argument around the term ‘void’ as used in Article 13(1) and prohibition on abridging rights under Article 13(2) of Constitution, the Court noted that Section 6A of DSPE Act would be void.
The Court referred to Keshavan Madhava Menon v. State of Bombay, 1951 SCC 16 restricting retrospective effect of Article 13(1) but kept inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings whether not yet begun, or pending at the time of the enforcement of the Constitution and not yet prosecuted to a final judgment, the very serious question arises as to whether a law which has been declared by the Constitution to be completely ineffectual. It further cited Behram Khurshid Pesikaka v. State of Bombay, 1954 SCC OnLine SC 15, M.P.V. Sundararamier & Co. v. State of A.P., 1958 SCR 1422, Deep Chand v. State of U.P., 1959 SCC OnLine SC 12, Mahendra Lal Jaini v. State of U.P., 1963 Supp (1) SCR 912 and State of Manipur v. Surjakumar Okram, 2022 SCC OnLine SC 130 to conclude that “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.” The Court held that the declaration in Subramanian Swamy (supra) will have retrospective effect, and clarified that Section 6-A of DSPE Act will not be in force from its date of insertion, i.e., 11-09-2003.
[Central Bureau of Investigation v. Dr RR Kishore, 2023 SCC OnLine SC 1146, decided on 11-09-2023]