SC holds its 2014 verdict invalidating prior sanction before probing corruption against senior govt. officials has retrospective effect

This means that senior government officials involved in corruption cases even before the date of the Supreme Court judgment would no longer be able to avail the protection of prior sanction

Updated - September 11, 2023 06:56 pm IST

Published - September 11, 2023 12:05 pm IST - NEW DELHI

A five-judge Supreme Court Bench said the provision in question, Section 6A of the Delhi Special Police Establishment Act, the statute that governs the CBI, was invalid from the very day of its insertion on September 11, 2003.

A five-judge Supreme Court Bench said the provision in question, Section 6A of the Delhi Special Police Establishment Act, the statute that governs the CBI, was invalid from the very day of its insertion on September 11, 2003. | Photo Credit: Shiv Kumar Pushpakar

A Constitution Bench on Monday held that a Supreme Court judgment of 2014 which declared invalid a legal provision mandating the Central Bureau of Investigation (CBI) to take prior permission before investigating corruption cases against senior government officials has a retrospective effect.

A five-judge Bench headed by Justice Sanjay Kishan Kaul said the provision in question, Section 6A of the Delhi Special Police Establishment (DSPE) Act, the statute that governs the CBI, was void from the very day of its insertion on September 11, 2003.

The 106-page judgment held that Section 6A violated fundamental rights, and “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”.

This means that senior government officials involved in corruption cases even before the date of the Supreme Court judgment invalidating the need for prior sanction would no longer be able to avail the protection of prior sanction.

“Declaration made by the Constitution Bench judgment in Dr. Subramanian Swamy case [of 2014] will have retrospective operation. Section 6A of the DSPE Act is not in force from the day of its insertion, ie, September 11, 2003,” Justice Vikram Nath, who authored the judgment, for the five-judge Bench held.

Justice Nath also held that Article 20(1), which mandated that a person should only be convicted under a law which was in force at the time of the crime, had “no applicability or relevance to the validity or invalidity of Section 6A of the DSPE Act”.

Section 6A of the DSPE Act, while it had existed, gave officers of the rank of joint secretary and above immunity from even facing a preliminary inquiry by the CBI. In 2014, a Constitution Bench had declared the legal provision a violation of the right to equality under Article 14 of the Constitution.

‘Corruption is an enemy of the nation’

“Corruption is an enemy of [the] nation and tracking down a corrupt public servant, however high he may be, and punishing such person is a necessary mandate under the PC [Prevention of Corruption] Act, 1988. The status or position of a public servant does not qualify the person from exemption from equal treatment. The decision-making power does not segregate corrupt officers into two classes as they are common crime-doers and have to be tracked down by the same process of inquiry and investigation,” the 2014 judgment said.

It had found the dichotomy within Section 6A, of protecting one class of officers, directly destructive and contrary to the objectives and reason of the Prevention of Corruption Act, 1988.

“The provision in Section 6A impedes tracking down the corrupt senior bureaucrats… The protection under Section 6A has propensity of shielding the corrupt,” the Bench had concluded.

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