[This is a guest post by Vinayak Aren.]

The Constitution Bench of the Supreme Court in CBI v. RR Kishore (‘RR Kishore’) was concerned with the question of whether the declaration by the Court in Subramanian Swamy v. Director, CBI (‘Subramanian Swamy’), whereby section 6A of the Delhi Special Police Establishment Act, 1946 (‘DSPE Act’) was declared unconstitutional on the ground of being arbitrary, would run prospectively from the date of the judgment, or would run retrospectively from the date the impugned provision came into force, i.e., 11th September 2003. The Court on 11th September 2023, answered in favor of the latter.

Section 6A of the DSPE Act and Subramanian Swamy

Section 6A of the DSPE Act was brought in by an amendment in 2003. It restricted the power of the CBI to conduct inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (‘PC Act’) except with the prior sanction of the Central government, but only in the cases of a particular class of employees of the Central Government and in no other. This requirement of the prior sanction was dispensed with in the cases of spot arrests, or put plainly, where the person was caught red-handed. It may be stated here that the immunity was only from arrests, searches, etc. without sanction and not the offence itself; thus, there existed only a procedural advantage to this class of employees. (this protection has been available in one form or the other to the officers or their certain class, except for the brief periods. See ¶16 in RR Kishore).

This provision came to be challenged in Subramanian Swamy v. CBI before the Constitution Bench of the Supreme Court on the ground of being violative of Article 14, being based on arbitrary classification. The Court declared section 6A, vide its judgment dated 6th May 2014, violative of Article 14 and thus, invalid and unconstitutional (¶98), on the ground that the differentia contained in it – some officers of central government enjoying immunity against arrests, etc. and others not – runs counter to the object and reasons of the PC Act, of detecting and punishing high level corruption (¶87).

The Court, however, did not decide on the retrospectivity of the declaration.

Concern with the Judgment in Subramanian Swamy running retrospectively

Consider the facts of the instant case from which the reference arose: An FIR was registered on 16th December 2004 for offences under the PC Act against the Respondent, R. R. Kishore, and a trap was laid the same evening, pursuant to which he was said to have been caught taking the bribe relating to a case under the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994. The Respondent was admittedly protected under the erstwhile section 6A of the DSPE Act and therefore, sought for discharge on the ground of the investigation having begun illegally for want of sanction from the Central government. Instead, the Delhi High Court ordered re-investigation. Aggrieved thereof, CBI appealed before the Supreme Court. Now, this is where the facts take an interesting turn. Pending the appeal, Subramanian Swamy was delivered and the CBI contended that this deprivation of immunity under the erstwhile section 6A extends to the Respondent as well. This meant that judgment operated retrospectively, relating back to its insertion in 2003, and, resultantly, failure of Respondent’s contentions.

The Court was, thus, called to decide whether Subramanian Swamy operates retrospectively; and if it does, then whether retrospective operation of a judgment declaring an immunity from arrests, etc. unconstitutional would violate the Article 20(1) protection to Respondent against ex-post facto laws: a constitutional guarantee against conviction for acts declared offences after their commission, or against punishment of greater degree than was provided for at the time of the commission of the offence took place.

Court’s Analysis

The Court framed the following three questions (¶14):

  • 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 6A 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?

Inapplicability of Article 20(1) on Section 6A of DSPE Act

The Court observed that section 6A does not lay down or introduce any conviction for any offence; it is only a procedural safeguard against initiating an investigation or making an  inquiry without approval from the Central Government under the PC Act (¶23) and therefore, held that the provision is a part of the procedure only (¶24), similar to section 196 of the Code of Criminal Procedure, whereby cognizance by in case of certain offences is subject to approval of the Central Government or the State Government.

Having held so, the Court, relying on the constitution bench decisions in Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh (1953) and State of West Bengal v. SK Ghosh (1962), proceed to observe that Article 20(1) is only limited to conviction or sentence and not the trial thereof, thereby advancing the proposition that its applicability does not extend to procedures under the criminal law, but only substantive change in the law in force, either with respect to the ingredients required to constitute an offence, or enhancement of punishment. In the same stride, it may also be noted that only enhancement of punishment is prohibited and not reduction in quantum or removal of the punishment. The submission that the phrase “in respect of conviction” appearing in the marginal note of Article 20 would cover anything relating to or which may be a condition precedent for recording conviction, such as the requirement of approval in section 6A, was rejected by the Court (¶34-35) and in author’s submission, rightly so, as whether the want of sanction would vitiate a trial or not remains a mixed question of law and fact; it is dependent on the nature of offence, policy behind mandating sanction of a particular authority, effect of absence of such approval on the accused’s ability to face trial, etc. (see section 465 CrPC)

In view of the discussion on questions (i) and (ii), the Court held that Article 20(1) has no applicability to the effect of section 6A of the DSPE Act. (¶36)

Retrospective Application of the Judgment in Subramanian Swamy v. CBI (2014)

After having answered the first two questions in this manner, the Court was concerned with a straight question of law that whether declaration of any law as unconstitutional has effect from the time of such law’s enactment, or it has an effect from the date of such declaration, that is, the date of passing of the judgment. For this, the Court examined the meaning of the word ‘void’ used in Article 13(2) of the Constitution, utilizing which a post-constitution law is declared void as violating Part III of the Constitution by the Court. In Kesava Madhava Menon v. The State of Bombay, the seven-judge bench of the Court, by majority held that ‘void’ in Article 13(1) implies a nullity and pronouncement thereof will be notionally taken to be obliterated for all intents and purposes, even if it remains written on the statute. The seven-judge bench of the Court in Behram Khurshed Pesikaka v. The State of Bombay, ¶69, held that the declaration of unconstitutionality of section 13(b) of the Bombay Prohibition Act, 1949 means that it is inoperative and ineffective, and thus, unenforceable in a court of law. Similar reasoning was provided in MPV Sundararamier and Co. v. State of Andra Pradesh.

In Deep Chand v. The State of UP, the Constitution Bench of the Court held that the prohibition in Article 13(2) “goes to the root of the matter and limits the State’s power to make law; the law made in spite of the prohibition is a still- born law”, and thereby, a nullity from inception, as held in Mahendra Lal Jaini v. The State of UP, observing a categorical difference from Article 13(1) when the nullity would not be from inception, but from the time the Constitution came into force. This implies that the revival of such laws is not possible without the removal of illegality that tainted their operation. In The State of Manipur v. Surjakumar Okram,(2022) a three-judge bench of the Court held that law so passed is non est for all purposes.

The Court in RR Kishore, thus, held 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 thus, Subramanian Swamy has retrospective operation and section 6A, therefore, is held to never have been legislated for all purposes. (¶43)

Conclusion

The Constitution Bench in CBI v. RR Kishore was conflicted with an interesting reference as to the applicability of a declaration of unconstitutionality of a procedural safeguard in favor of an accused under Article 13(2) of the Constitution for the commission of an offence alleged to have been committed before such declaration.

Rejecting the submission that the retrospective operation of such declaration has the effect of violating the constitutional guarantee under Article 20(1), the Court negatived the applicability of protection against ex post facto laws for the reason of them being available only against conviction or sentence, and thus, unavailable against a safeguard in section 6A of the DSPE Act.

With respect to the retrospectivity, the effect of voidness rendered on a law made in violation of Article 13(2), in view of the catena of judgments and on first principles as well that judiciary only declares law by expounding what it means, the reference was answered declaring the retrospective effect of the judgment from the date the provision came to be inserted in the DSPE Act, meaning thereby that the declaration dates from the enactment and not from the date of the judgment.