CASE DETAILS:
| Bench S.K. Kaul J. Sanjiv Khanna J. Abhay S. Oka J. Vikram Nath J. J. K. Maheshwari J. | Case no. (2023) SCC Online SC 1146 | Acts/law CPC, 1908 Prevention of corruption Act, 1988 Constitution of India |
INTRODUCTION:
In CBI vs. R.R. Kishore, the constitution bench has been constituted to ascertain whether a finding of the constitution bench made in Subramanian Swamy v. Director, Central Bureau of Investigation (2014)8 SCC 682 that section 6A of Delhi Special Police Establishment Act, 1946 hereinafter mentioned as DSPE Act being unconstitutional, can be applied retrospectively in context with Article 20 of Constitution.
LAW:
Section 6A of DSPE ACT:
The Delhi Special Police Establishment shall not conduct any 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 employees of the Central Government of the level of Joint Secretary and above; and
- such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.
Article 20 of Constitution:
Protection in respect of conviction for offences:
- No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
SUBRAMANIAN SWAMY v/s DIRECTOR, CENTRAL BUREAU OF INVESTIGATION:
During the pendency of present case the Supreme Court in paragraph 99 of the aforesaid judgment 5 judges bench enunciated that Section 6A (1) of DSPE Act is unconstitutional being invalid and violative of Article 14 of Constitution as under:
99. In view of our foregoing discussion, we hold that Section 6A (1), which requires approval of the Central Government to conduct any inquiry or investigation into any offence alleged……………, is invalid and violative of Article 14 of the Constitution. As a necessary corollary, the provision contained in Section 26(c) of Act 45 of 2003 to that extent is also declared invalid.”
In the aforesaid case court did not adjudge whether declaration of section 6A (1) as violative of Article 14 of Constitution will apply retrospectively or prospectively, it only evaluated that classification in Section 6A does not eliminate any public mischief nor it achieve any public good. Therefore classification was held to be violative of Article 14 of Constitution.
ISSUE:
- Whether Section 6A of the DSPE Act is part of procedure or it introduces a conviction or sentence?
- Whether Article 20 (1) of the Constitution will have any bearing or relevance in the context of declaration of Section 6 A of the DSPE Act as unconstitutional?
- 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? Or whether there can be a deprivation of immunity provided under Section 6A (1) of DSPE Act 1946 by a retrospective operation of a judgment (SUBRAMANIAN SWAMY) of constitution bench, in the context of Article 20 of the Constitution of India?
COURT PROCEEDINGS:
Accused was prosecuted under prevention of corruption Act, and the same was questioned on the basis of section 6 A (1) of the DSPE Act, 1946. Delhi High court held that appellant herein/ accused is entitled to the immunity under Section 6A (1) of DSPE Act therefore there is requirement of prior approval of central government for inquiry against accused.
Against the said order of Delhi High Court, present appeal was filed before Supreme Court. In the mean time Section 6 A (1) was held unconstitutional by 5 judges’ bench.
ARGUMENTS:
CBI:
- Section 6A (1) is mere a procedural aspect;
- Article 20 is protection against ex post facto laws;
- Ex post facto laws are those in which act was not considered as offence at the time of commission of which such Act/law did not exist thereby act was not considered as an offence;
- Article 20 cannot be invoked to check the applicability of declaration made in Subramanian Swamy prospectively or retrospectively as Section 6A(1) is mere a procedural aspect and Article 20 provides protection against ex post facto laws;
- Removal of Section 6A (1) does not constitute a new offence moreover Section 6A does not create any vested rights;
- Declaration made in Subramanian Swamy is judicial order and not legislative measure.
RESPONDENT (R.R. Kishore):
Respondent contended the dismissal of present appeal on the ground that CBI had violated Section 6A of DSPE Act. It was contended that where law has been in force for long time and then repealed than it will not have any impact on any right which accrued at the time when law was in existence.
JUDGMENT:
Applicability of Article 20:
It is necessary to comprehend the scope of Article 20 to check its applicability in context of section 6A (1) of DSPE Act. It is also pertinent to note that whether Section 6A is merely a procedural aspect or it amounts to conviction or sentence. In para 74 court observed that section 6A of DSPE Act is merely a procedural aspect and it does not introduce any sentence or conviction for any offence it only stipulates the procedural safeguard for making any investigation or inquiry of an offence committed under PC Act.
To test the applicability of Article 21 Court relied on the following judgments:
Rao Shiv Bahadur Singh v. State of Vindhya Pradesh (1953) 2 SCC 111: In para 16 of the said judgment court observed that:
This Court further held that Article 20 prohibits only conviction or sentence under an ex post facto law, and not the trial thereof. Such trial under a procedure different from what obtained at the time of the offence or by a court different from that which had competence at that time cannot ipso facto be held to be unconstitutional. Therefore, this case shows that it is only conviction and punishment as defined in Section 53 of the Penal Code, 1860 which are included within Article 20(1) and a conviction under an ex post facto law or a punishment under an ex post facto law would be hit by Article 20(1);
Scope of Article 20(1):
Article 20 (1) consist of two parts:
- First part prohibits the conviction or sentence under any ex post facto laws, the trial itself is not prohibited; ultimately it prohibits the laws which inflict punishment for violation of any law with retrospective effect;
- Second part is that person is only subject to the penalties which are prescribed under the law at the time of commission of offence;
To ascertain the scope court interpreted the term “law in force” as under: it was held that the ordinance giving retrospective effect would not fall within the meaning of the phrase ‘law in force’ as used in sub-article (1) of Article 20 of the Constitution. The ‘law in force’ must be taken to relate not to a law deemed to be in force, but factually in force, and then only it will fall within the meaning of ‘existing law’.
Section 6 of General clause Act:
In para 83 and 84 court referred to section 6 of General clause Act 1897 wherein it is inferred that repeal of any enactment will not affect any previous operation. However, court construed that declaration that section 6A of DSPE Act is unconstitutional is not repeal of the statute but a judicial inference on the ground of violation of Article 14 of the Constitution. Therefore section 6 of GC Act 1897 will not be applicable.
On first issue a) and b) court concluded in para 88 that 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.
Retrospective application of Subramanian Swamy judgment:
In 1969 central government issued single directive to give instruction to CBI to conduct inquiry against certain government officers the said directive was struck down in Vineet Narain vs. Union of India (1998) 1 SCC 226. Thereafter in 2003 again government amended DSPE Act and inserted Section 6A to insert provision concerning immunity to certain government officers or to offer special privilege to such officers. Further in Subramanian Swamy judgment (supra) this court declared Section 6A as unconstitutional and “void”. Therefore, issue in the present case whether this finding of Subramanian Swamy judgment will apply retrospectively or prospectively.
Court emphasized on the term “Void” and for the same referred to Article 13 (1) and 13 (2) which is concerning pre constitutional laws and post constitutional laws. Article 13 (1) Declares pre-existing laws unconstitutional and void to the extent that it is inconsistent or in contravention with the part III of the Constitution. Article 13 (2) infers that state shall not make the law in derogation with Part III of the constitution otherwise same will be void. Both the laws under clause 1 and clause 2 of Article 13 are void however in case of clause 2 it is void ab initio that is it is void from the inception. Whereas in case of clause 1 it is valid however on the commencement of constitution those laws being inconsistent with part III were eclipsed. The doctrine of eclipse is only applicable in case of clause (1) and not in case of laws enacted under clause (2) as the same is void ab initio.
In para no. 96 court concluded the finding on the applicability of aforesaid judgment as under:
“96. From the above discussion, it is crystal clear 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. 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.”