Supreme Court Retrospectively Invalidates Section 6A of DSPE Act in Corruption Cases: CBI vs. R.R. Kishore (2023) INSC 817 (11 September 2023)

Introduction

Date of the Judgment: 11 September 2023

Citation: (2023) INSC 817

Judges: Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath, and J.K. Maheshwari, JJ. (Constitution Bench)

Can a legal provision, once declared unconstitutional, be considered invalid from its inception, affecting past actions? The Supreme Court of India addressed this crucial question in a case concerning the validity of investigations conducted under the Delhi Special Police Establishment Act, 1946 (DSPE Act). This judgment clarifies whether the striking down of Section 6A of the DSPE Act, which required prior government approval for investigating certain public officials, applies retroactively.

Case Background

The Central Bureau of Investigation (CBI) registered a First Information Report (FIR) on December 16, 2004, against R.R. Kishore for offenses under the Prevention of Corruption Act, 1988. The CBI alleged that Kishore accepted a bribe to facilitate illegal prenatal sex determination tests. Following the FIR, a trap was laid on the same day, leading to Kishore’s arrest.

Kishore applied for discharge, arguing that the investigation was illegal because it lacked the prior approval of the Central Government, as required by Section 6A of the DSPE Act. The Special Judge, CBI, rejected this application on April 30, 2006. Kishore then filed a revision petition before the High Court of Delhi.

Timeline

Course of Proceedings

The Delhi High Court, in its judgment on October 5, 2006, framed three key questions: the background of Section 6A of the DSPE Act, whether the CBI acted against Section 6A(1), and if so, whether the entire trial was vitiated. The High Court ruled that the CBI had indeed violated Section 6A(1), which it deemed mandatory. However, it did not discharge Kishore. Instead, it directed a reinvestigation after obtaining the necessary approval from the Central Government. If approval was not granted, the case was to be closed.

Aggrieved by this judgment, the CBI appealed to the Supreme Court, arguing that Section 6A(2) of the DSPE Act, which does not require prior approval in cases of on-the-spot arrests for bribery, should apply, not Section 6A(1).

During the pendency of this appeal, the Supreme Court, in Subramanian Swamy vs. Director, Central Bureau of Investigation, declared Section 6A(1) of the DSPE Act unconstitutional. This raised the question of whether this declaration applied retrospectively or prospectively.

Legal Framework

The core of this case revolves around Section 6A of the Delhi Special Police Establishment Act, 1946. This section, introduced in 2003, mandated that the CBI obtain prior approval from the Central Government before initiating any inquiry or investigation against certain categories of public servants, specifically those at the level of Joint Secretary and above.

Section 6A of the DSPE Act states:

“6A. Approval of Central Government to conduct inquiry or investigation.—(1) 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 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to— (a) the employees of the Central Government of the Level of Joint Secretary and above; and (b) 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.”

However, in 2014, the Supreme Court declared Section 6A(1) to be unconstitutional, holding that it violated Article 14 of the Constitution, which guarantees equality before the law. This decision raised the question of whether the invalidation of Section 6A would apply retroactively, affecting investigations initiated before the judgment.

Arguments

Arguments by CBI:

• The CBI argued that Section 6A of the DSPE Act is a procedural provision, not a penal one, and therefore, Article 20(1) of the Constitution, which protects against ex post facto laws, does not apply.
• It contended that Article 20 is limited to cases where distinct offenses are created subsequently or where a greater penalty is imposed after the commission of the offense.
• The CBI asserted that Section 6A did not decriminalize any offenses under the PC Act, nor did it create any vested right or blanket immunity.
• It further submitted that the declaration of Section 6A as unconstitutional should apply retrospectively, rendering it void ab initio.
• The CBI relied on several judgments, including Rao Shiv Bahadur Singh vs. State of Vindhya Pradesh and Keshavan Madhava Menon vs. The State of Bombay, to support its claims.

Arguments by Union of India:

• The Union of India argued that an unconstitutional provision is void from its inception, and any actions taken under it are invalid.
• It submitted that the prohibition under Section 6A relates to the collection of evidence during an inquiry or investigation.
• The Union of India contended that where a Magistrate has already taken cognizance of an investigation conducted without approval under Section 6A, the court can act on the evidence collected, unless prejudice is shown.
• It also argued that after the judgment in Subramanian Swamy, the CBI could investigate matters without needing approval under Section 6A, subject to Section 17(A) of the PC Act, 1988.
• The Union of India also submitted that Article 20(1) of the Constitution would not apply as investigation is only part of the procedure for collecting evidence and it neither amounts to conviction nor to sentence.

Arguments by Dr. R.R. Kishore (Respondent):

• Dr. Kishore argued that the CBI’s appeal was against the stand of the Union of India, which had initially stated that the CBI lacked jurisdiction to investigate him without prior approval.
• He contended that the CBI violated not only Section 6A but also Sections 6, 17, and 18 of the PC Act, 1988.
• Kishore submitted that Section 6A was in force when the alleged offense occurred and when the High Court delivered its judgment, and therefore, he was entitled to its protection.
• He also argued that accepting the CBI’s contention would discriminate against him compared to other government servants who had benefited from Section 6A.
• Kishore further submitted that if a court does not expressly state that a judgment is to apply retrospectively, it should apply prospectively.
• He also argued that Article 21 of the Constitution should be read in his favour and he should be extended the benefit of any protection available at the time when the offence is said to have taken place.

Arguments by Shri Arvind Datar (for Manjit Singh Bali):

• Shri Datar argued that the declaration of a law as unconstitutional under Article 14 is void ab initio under Article 13(2) of the Constitution.
• He submitted that Section 6A created an immunity that could not be taken away retrospectively.
• Datar contended that a law declared unconstitutional becomes inoperative only from the date of the declaration, not before.
• He argued that the word “void” in the Constitution means “invalid” or “inoperative,” not “repealed.”
• He further submitted that the doctrines of prospective overruling and the Blackstonian theory do not apply in the present case as no previous decision has been overruled.

Summary of Arguments

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

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

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

✓ The Court relied on Rao Shiv Bahadur Singh and another Vs. State of Vindhya Pradesh [1953] SCR 1188* to establish that Article 20(1) prohibits conviction or sentence under an ex post facto law, not the trial itself.

✓ The Court cited State of West Bengal Vs. S.K. Ghosh [1963] 2 SCR 111* to reiterate that Article 20(1) is concerned with conviction and punishment, not with procedural matters.

✓ The Court referred to Rattan Lal Vs. State of Punjab [1964] 7 SCR 676* to explain that a beneficial law made post-offense can be applied retrospectively without violating Article 20(1).

✓ The Court relied on Union of India Vs. Sukumar Pyne [1966] 2 SCR 34* to state that no person has a vested right in any course of procedure.

✓ The Court cited G.P. Nayyar Vs. State (Delhi Administration) [1979] 2 SCC 593* to state that procedural amendments can be applied retrospectively and do not create new offenses.

✓ The Court referred to Soni Devrajbhai Babubhai Vs. State of Gujarat and Others [1991] 4 SCC 298* to clarify that a new offense created after the commission of an act cannot be applied retrospectively.

✓ The Court relied on Securities and Exchange Board of India Vs. Ajay Agarwal [2010] 3 SCC 765* to state that procedural laws can be applied retrospectively.

✓ The Court cited Vineet Narain and Others Vs. Union of India and Another [1998] 1 SCC 226* to highlight that administrative instructions cannot interfere with the statutory powers of the CBI.

✓ The Court referred to Keshavan Madhava Menon Vs. The State of Bombay 1951 SCR 228* to interpret the word ‘void’ under Article 13(1) of the Constitution, holding that it is prospective and does not invalidate past actions.

✓ The Court relied on Behram Khurshed Pesikaka Vs. The State of Bombay [1955] 1 SCR 613* to state that a declaration of unconstitutionality renders a law inoperative and unenforceable.

✓ The Court cited M.P.V. Sundararamier and Co. Vs. The State of Andhra Pradesh & Another 1958 SCR 1422* to distinguish between laws that are void due to lack of legislative competence and those that are unenforceable due to constitutional restrictions.

✓ The Court referred to Deep Chand Vs. The State of Uttar Pradesh and Others 1959 SCR Suppl. (2) 8* to interpret the word ‘void’ under Article 13(2) of the Constitution, holding that such laws are void ab initio.

✓ The Court relied on Mahendra Lal Jaini Vs. The State of Uttar Pradesh and Others AIR 1963 SC 1019* to explain the difference between pre and post-constitutional laws, stating that post-constitutional laws are void from their inception.

✓ The Court cited The State of Manipur & Ors. Vs. Surjakumar Okram & Ors. 2022 SCC Online SC 130* to state that a statute declared unconstitutional is non est from its inception.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the interpretation of Article 13(2) of the Constitution and the legal consequences of declaring a law unconstitutional. The Court emphasized that a law violating fundamental rights is void from its inception, meaning it never had any legal force. The Court also highlighted that the protection under Article 20(1) is limited to conviction and sentence and does not extend to procedural aspects.

Fact:Law Ratio

Final Decision

The Supreme Court, in a unanimous decision, held that the declaration of Section 6A of the DSPE Act as unconstitutional has retrospective effect. This means that Section 6A was void from its inception, and any investigations initiated without prior approval under that section are deemed invalid. The Court clarified that this decision does not affect the validity of the trial itself, as long as the investigation was not tainted by any illegality other than the lack of prior approval under Section 6A.

The Court also stated that the decision in *Subramanian Swamy vs. Director, Central Bureau of Investigation* was correct in declaring Section 6A as unconstitutional.

Flowchart of the Case

Conclusion

The Supreme Court’s judgment in *CBI vs. R.R. Kishore* is a landmark decision that clarifies the retrospective effect of declaring a law unconstitutional. The Court’s ruling reinforces the principle that laws violating fundamental rights are void from their inception, thereby impacting past actions taken under such laws. This judgment has significant implications for cases involving investigations under the DSPE Act, particularly those initiated before the invalidation of Section 6A.

This decision underscores the importance of constitutional principles and ensures that no one is subjected to an investigation under a law that is deemed unconstitutional. It also highlights that the invalidation of a law under Article 13(2) has a retroactive effect, affecting past actions taken under such law.