Top court’s 2014 verdict striking down immunity to apply retrospectively

Satya Prakash

New Delhi, September 11

Thousands of public servants on Monday lost a legal shield in the pre-2014 corruption cases as the Supreme Court ruled that its verdict in Subramanian Swamy’s case striking down Section 6A of the Delhi Special Police Establishment (DSPE) Act, 1946, will have retrospective effect.

In a unanimous verdict, a five-judge Constitution Bench led by Justice Sanjay Kishan Kaul said, “The declaration made by the Constitution Bench (in May 2014) in the case of Subramanian Swamy will have retrospective operation. Section 6(A) of the DSPE Act is held to be not in force from the date of its insertion, that is September 11, 2003,” said the Bench, which also included Justice Sanjiv Khanna, Justice AS Oka, Justice Vikram Nath and Justice JK Maheshwari.

According to Section 6A(1) — declared unconstitutional in 2014 — the CBI could not conduct inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988, except with the previous approval of the Central Government where such allegation relates to the Central Government employees of the Level of Joint Secretary and above; and such officers as are appointed by the Centre in corporations established by or under any Central Act, government companies, societies and local authorities owned or controlled by that government.

In May 2014, the top court had declared Section 6A(1) of the Act invalid and said that protection given to public servants in Section 6A has “propensity of shielding the corrupt”. However, it did not decide if the verdict would have retrospective effect or it would apply prospectively.

Writing the judgment for the Bench, Justice Nath, said, “…it is crystal clear that once a law is declared to be unconstitutional, being violative of Part-III (fundamental rights) 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.” It also rejected the defence of Article 20(1), which states that a person can only be subjected to penalties prescribed under the law at the time when the offence for which he is charged was committed. The top court said, “It can be safely concluded that Article 20(1) of the Constitution has no applicability either to the validity or invalidity of Section 6A of the DSPE Act” as the provision was a part of the procedure only in the form of a protection to senior government servants and did not constitute any new offence or sentence. The issue arose out of an appeal against a Delhi HC order in a case of a chief district medical officer arrested by the CBI in a graft case.