InCriminal Appeal No. 377 of 2007 -SC-A major blow to corrupt public servants: Supreme Court strikes down Section 6A of DSPE Act with retrospective effect
Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Abhay S. Oka, Justice Vikram Nath & Justice J.K. Maheshwari [11-09-2023]

Read Order: CBI V. R.R. Kishore

Chahat Varma

New Delhi, September 12, 2023: In a landmark decision, the Supreme Court has ruled that the declaration made in Subramanian Swamy vs. Director, Central Bureau of Investigation and another [LQ/SC/2014/529] judgment, which struck down Section 6A of the Delhi Special Police Establishment Act, 1946 (DSPE Act), granting immunity from arrest to public servants of the rank of joint secretary and above, will have a retrospective effect.

In the said matter, a Constitution Bench was constituted to examine whether a previous declaration made by another Constitution Bench of the Court, in the case of Subramanian Swamy case, which declared Section 6A of the DSPE Act as unconstitutional, can be applied retrospectively in relation to Article 20 of the Constitution.

Briefly stated, the issue involved in this case was that the CBI, had registered an FIR for offenses under the Prevention of Corruption Act, 1988, and had set up a trap to catch the respondent accepting a bribe related to illegal prenatal sex determination tests. The respondent sought discharge, arguing that the trap was set without the prior approval of the Central Government as required by Section 6A of the DSPE Act. The Special Judge rejected the discharge application, which was then taken to the Delhi High Court. The High Court determined that the provisions of Section 6A(1) of the Prevention of Corruption Act were mandatory and not optional. Therefore, any investigation conducted in violation of these provisions was illegal due to non-compliance with statutory requirements.

The CBI, feeling aggrieved by the judgment of the High Court, preferred the present appeal, on the ground that Section 6A(2) of DSPE Act would be applicable and not Section 6A(1) thereof.

While this appeal was pending, a Constitution Bench, in the case of Subramanian Swamy, passed a judgment on 06.05.2014, declaring that Section 6A(1) of the DSPE Act was invalid and contravened Article 14 of the Constitution.

The five-judge bench of Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Abhay S. Oka, Justice Vikram Nath and Justice J.K. Maheshwari noted that Section 6A of the DSPE Act serves as a procedural safeguard specifically for senior government servants. It does not introduce any new criminal offense, nor does it increase the punishment or sentence for any existing offenses.

The bench also pointed out that Article 20(1) of the Constitution solely pertains to conviction and sentence, and it does not address any procedural aspects that might lead to either a conviction or acquittal or determine the sentence. Therefore, the bench concluded that Article 20(1) of the Constitution does not have any relevance to the validity or invalidity of Section 6A of the DSPE Act.

The bench further noted that according to Article 13(1) of the Constitution, all laws that existed prior to the commencement of the Constitution, to the extent that they are inconsistent with the provisions of Part III, would be void to the extent of that inconsistency. Additionally, Article 13(2) prohibits the State from enacting any law that diminishes or infringes upon the rights conferred by Part III. Any law made in violation of this clause would also be void to the extent of the violation.

The bench clarified that in the present case, since it had been determined that Section 6A of the DSPE Act violates Article 14 of Part III of the Constitution, this section would be rendered void. The term ‘void’ has been interpreted differently in various judgments of this Court over the years, with different labels like 'non est,' 'void ab initio,' 'stillborn,' and 'unenforceable' being used to describe it.

The bench analysed the decision rendered in M. P. V. Sundararamier& Company & Others v. State of Andhra Pradesh & Another [LQ/SC/1958/21], wherein it was held that when a law falls outside the legislative authority, it is completely null and void. However, when a law is declared unconstitutional, it becomes unenforceable and void to the extent of its unconstitutionality, in accordance with Article 13(2) of the Constitution.

The bench also referred to the case of The State of Manipur &Ors v. SurjakumarOkram&Ors [LQ/SC/2022/127], where a three-judge bench of the Supreme Court was addressing an appeal against the Manipur High Court's decision that had declared the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Act, 2012, as unconstitutional. Justice L. Nageswara Rao, speaking for the bench, had noted that when a statute is deemed unconstitutional, it is as if it never existed, and any law held unconstitutional, whether due to a lack of legislative authority or a violation of fundamental rights, is void ab initio.

Thus, the bench concluded that it is evident that when a law is declared unconstitutional due to a violation of Part III of the Constitution, it is considered void ab initio, essentially non-existent from the beginning, unenforceable, and legally invalid. This interpretation aligns with Article 13(2) of the Constitution and is supported by authoritative legal precedents.

With the above observations, the bench determined that the declaration made by the Constitution Bench in the case of Subramanian Swamy should have a retrospective effect. Therefore, Section 6A of the DSPE Act was considered to have been ineffective since the date of its insertion, which was, 11.09.2003.