{"id":301235,"date":"2023-09-11T17:30:07","date_gmt":"2023-09-11T12:00:07","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=301235"},"modified":"2023-09-19T15:09:40","modified_gmt":"2023-09-19T09:39:40","slug":"section-6a-dspe-act-unconstitutional-from-date-of-insertion-supreme-court","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2023\/09\/11\/section-6a-dspe-act-unconstitutional-from-date-of-insertion-supreme-court\/","title":{"rendered":"Section 6A of DSPE Act unconstitutional from date of insertion: Supreme Court Constitution Bench"},"content":{"rendered":"
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Supreme Court:<\/span> While considering whether declaration made in Subramanian Swamy<\/span> v. CBI<\/span>, (2014) 8 SCC 682<\/a> regarding unconstitutionality of Section 6-A<\/a> of Delhi Special Police Establishment Act, 1946<\/a> (‘DSPE Act’) could be applied retrospectively in context of Article 20<\/a> of Constitution of India<\/a>, the Constitution Bench of Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath*<\/span> and J.K. Maheshwari, JJ. held that its decision in Subramanian Swamy<\/span> (supra) declaring Section 6-A<\/a> of DSPE Act<\/a> unconstitutional, shall have retrospective effect, to be ineffective from the date of its insertion.<\/p>\n

Background: Why did the Court consider applicability of retrospective effect of Section 6A of DSPE Act?<\/h2>\n

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<\/a> (‘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<\/a>.<\/p>\n

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<\/a> of DSPE Act<\/a>, 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)<\/a> of DSPE Act<\/a> 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<\/a> of Constitution<\/a> by the Constitution Bench in Subramanian Swamy<\/span> (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<\/span> v. R.R. Kishore<\/span>, (2016) 13 SCC 240<\/a>.<\/p>\n

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<\/a> of the Constitution of India<\/a>.”<\/p>\n

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<\/a> and 8<\/a> of Prevention of Corruption Act, 1988<\/a> (‘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)<\/a> or 6-A(2)<\/a> of DSPE Act<\/a>.<\/p>\n

Court’s Analysis on Prospective or Retrospective Effect of DSPE Act Section 6A<\/h2>\n

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:<\/p>\n