The Supreme Court yesterday ruled that the declaration made by its Constitution Bench in the case of Subramanian Swamy vs. Director, Central Bureau of Investigation, and another [(2014) 8 SCC 682], that Section 6A of the Delhi Special Police Establishment Act, 1942 (DSPE Act) being unconstitutional, will have retrospective application, and therefore, Section 6A of the DSPE Act is held to be not in force from the date of its insertion i.e., Sep 11, 2003.

A Constitution Bench of Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Abhay S. Oka, Justice Vikram Nath, and Justice J.K Maheshwari observed 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”.

Solicitor General Tushar Mehta appeared for the Appellant, ASG S.V. Raju appeared for Union of India, and Respondent himself appeared in person.

The brief facts of the case were that the appellant (CBI) after registering the FIR for offences under the Prevention of Corruption Act, 1988 laid a trap in the evening on the same day wherein the respondent is said to have accepted bribe to set the things right for the radiologist conducting Pre-Natal test to determine the sex of the foetus in contravention of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. The respondent applied for discharge, inter alia, amongst others on the ground that the trap which was a part of the enquiry/investigation had been laid without the previous approval of the Central Government as provided under Section 6A of the DSPE Act. Accordingly, the Special Judge, CBI, rejected the application for discharge, which was carried in revision before the High Court, wherein it was held that the CBI acted in contravention of Section 6A(1) of the DSPE Act.

The CBI appealed against the order of the High Court substantially on the ground that Section 6A(2) of DSPE Act would be applicable and not Section 6A(1) thereof. During the pendency of the appeal since 2007, Section 6A(1) of the DSPE Act was held to be invalid and violative of Article 14 by a Constitution Bench judgment in case of Subramanian Swamy. Since the then Constitution Bench in Subramanian Swamy case did not decide as to whether the declaration of Section 6A(1) of the DSPE Act to be violative of Article 14 of the Constitution would have retrospective effect or it would apply prospectively, the CBI approached the present Constitution Bench and submitted that once Section 6A(1) has been declared to be violative of Article 14, the judgment of the High Court deserves to be set aside and the prosecution should be allowed to continue with the proceedings from the stage of rejection of discharge application.

After considering the submission, the Bench noted that Section 6A of the DSPE Act does not lay down or introduce any conviction for any offence and it is a procedural safeguard only which is enumerated in Section 6A of the DSPE Act regarding making of an investigation or enquiry of an offence under the PC Act, 1988.

Therefore, 6A of the DSPE Act is a part of the procedure only in the form of a protection to senior government servants, and it does not introduce any new offence nor it enhances the punishment or sentence, added the Bench.

The Bench further added that “Sub-article (1) of Article 20 of the Constitution consists of two parts. The first part prohibits any law that prescribes judicial punishment for violation of law with retrospective effect. Sub-article (1) to Article 20 of the Constitution does not apply to civil liability, as distinguished from punishment for a criminal offence. Further, what is prohibited is conviction or sentence for any offence under an ex post facto law, albeit the trial itself is not prohibited”.

Finding that the present is a case where a Constitution Bench of this Court has declared a statutory provision as invalid and unconstitutional being hit by Article 14, the Bench clarified that Section 6 of the General Clauses Act, 1897 will have no application.

Further, stating that Article 20(1) of the Constitution only and only confines to conviction and sentence, and it does not at all refer to any procedural part which may result into conviction or acquittal and/or sentence, the Bench observed that Article 20(1) of the Constitution has no applicability either to the validity or invalidity of Section 6A of the DSPE Act.

Also, noticing that under Article 13(1) all existing laws prior to the commencement of the Constitution, insofar as they are inconsistent with the provisions of Part-III, would be void to the extent of inconsistency, the Bench elucidated that as it has been held that Section 6A of DSPE Act is violative of Article 14 of Part-III of the Constitution, as such, the same would be void.

Doctrine of eclipse does not apply in the present case, for Section 6A of the DSPE Act has been struck down as unconstitutional. There is no attempt to re-legislate this provision by removing the illegality resulting in unconstitutionality”, added the Bench.

Accordingly, the Apex Court concluded that Section 6A of the DSPE Act is held to be not in force from the date of its insertion.

Cause Title: CBI v. R.R Kishore [Neutral Citation: 2023: INSC: 817]

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