The court had declared Section 6A(1) of the Act invalid in May 2014 and also stated that protection given to public servants in Section 6A has “propensity of shielding the corrupt”. However, if the verdict would have a retrospective effect or if it would be applied eventually was not made clear then.
The Supreme Court on Monday dictated that its verdict in Subramanian Swamy’s case, overturning Section 6A of the Delhi Special Police Establishment (DSPE) Act, 1946, will yield retrospective effect. A myriad of public servants lost their legal battle in the pre-2014 corruption cases to the verdict.
A five-judge Constitution Bench led by Justice Sanjay Kishan Kaul, in an unanimous verdict 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.”. The bench also included Justice Sanjiv Khanna, Justice AS Oka, Justice Vikram Nath and Justice JK Maheshwari.
As per Section 6A(1)- declared illegitimate in 2014 - the CBI was disallowed to conduct inquiry or investigation in any offence alleged to have been committed under the Prevention of Corruption Act, 1988, except with an approval of the Central Government where such allegations related to the Central Government where it related to the Central Government employees of the Level of Joint Secretary and above. Such officers as are appointed by the Centre in corporation established by or under any Central Act, government companies, societies and local authorities owned or controlled by that government.
The court had declared Section 6A(1) of the Act invalid in May 2014 and also stated that protection given to public servants in Section 6A has “propensity of shielding the corrupt”. However, if the verdict would have a retrospective effect or if it would be applied eventually was not made clear then.
Justice Nath, writing the judgement for the Bench, 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 even rejected the defence of Article 20(1), which stated that a person can only be penalised if the offence is outlined under the law at the time when the offence for which he is charged was committed.
“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” said the top court 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 matter in question arose from an appeal against a Delhi HC order in a case of a chief district medical officer who was arrested by the CBI in a graft case.