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Synopsis

A Constitution bench of the Supreme Court today ruled that its declaration made in 2014 in the case of Subramanian Swamy vs. Director, Central Bureau of Investigation and Another, that Section 6A of the Delhi Special Police Establishment Act, 1942 is unconstitutional, can be applied retrospectively.

In the said judgment, the Constitution Bench had held that Section 6A(1) which required approval of the Central Government to conduct any enquiry or investigation into any offence alleged to have been committed under the PC Act, 1988 to be invalid and unconstitutional and in violation of Article 14 of the Constitution. As a necessary corollary, it was further declared that the provision contained in Section 26(c) of Act No. 45 of 2003 introducing the above provision was also invalid.

While striking down Section 6A (1) on the ground that it was violative of Article 14 (right to equality) of the Constitution of India, top court had further held that there cannot be a distinction between officials based on their status and rank.

Noting that once a law is declared to be unconstitutional, being violative of Part-III of the Constitution, 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, a Justice SK Kaul led bench has held, 

"Thus, the declaration made by the Constitution Bench in the case of Subramanian Swamy (supra) will have retrospective operation. Section 6A of the DSPE Act is held to be not in force from the date of its insertion i.e. 11.09.2003."

Supreme Court framed the following questions for its consideration:

(i) Whether Section 6A of the DSPE Act is part of procedure or it introduces a conviction or sentence?
(ii) Whether Article 20(1) of the Constitution will have any bearing or relevance in the context of declaration of Section 6A of the DSPE Act as unconstitutional?
(iii) The declaration of Section 6A of the 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?

Referring to Sub-article (1) of Article 20 of the Constitution which prohibits any law that prescribes judicial punishment for violation of law with retrospective effect, the bench also comprising Justices Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari, noted that Article 20(1) of the Constitution only and only confines to conviction and sentence.

"It does not at all refer to any procedural part which may result into conviction or acquittal and/or sentence..... Change in procedure post the offence not attracting Article 20(1) of Constitution has been the settled law since 1953 enunciated in the Constitution Bench judgment of Rao Shiv Bahadur Singh (supra)", court has said.

Case Title: CBI vs. R.R. KISHORE