The story begins with the CBI registering an FIR against a Radiologist at 02:00 pm on 16th December 2004 for offences under the Prevention of Corruption Act, 1988. Later that evening, they laid a trap and the radiologist is said to have accepted a bribe. A charge sheet was filed and before the Special Judge the Radiologist filed a discharge petition.The main contention in this petition was that the trap which was a part of the enquiry/investigation had been laid without the previous approval of the Central Government as provided under Section 6A of the Delhi Special Police Establishment Act, 1946 [DSPE Act]. Though the Special Judge rejected this discharge plea, the High Court of Delhi allowed his revision petition and held that the CBI acted in contravention of Section 6A DSPE Act. Against this judgment, the CBI approached the Apex Court. This happened in the year 2007.
During the pendency of this appeal, the constitution bench judgment Subramanian Swamy vs. Director, Central Bureau of Investigation [(2014) 8 SCC 682] was delivered on 6th May 2014. Section 6A(1) of the DSPE Act was held to be invalid and violative of Article 14 of the Constitution.
So when the appeal came up before the bench again, the CBI contended that Section 6A(1) has been declared to be unconstitutional, the judgment of the High Court deserves to be set aside and the prosecution should be allowed to continue with the proceedings from the stage of rejection of discharge application. In other words, the CBI contended that the Constitution bench judgment striking down Section 6A would have retrospective effect. On the other hand, the accused contended that this judgment could not have any retrospective operation.
Taking note of this, the bench framed this issue for reference to the Constitution bench: The provisions of Section 6A(1) do indicate that for officers of the level of Joint Secretary and above a kind of immunity has been provided for. Whether there can be a deprivation of such immunity by a retrospective operation of a judgment of the Court, in the context of Article 20 of the Constitution of India. This reference was made on 10th March 2016. This means, if a person has been given a certain kind of immunity by a law. That law is later struck down for being unconstitutional. Will he lose this immunity? Does that violate Article 20(1) of the Constitution?
The Constitution Bench heard this case this year and delivered the judgment yesterday. It noted that Section 6A of the DSPE Act does not lay down or introduce any conviction for any offence. It is a procedural safeguard only which is enumerated in Section 6A of the DSPE Act with regard to making of an investigation or enquiry of an offence under the PC Act, 1988. Section 6A of the DSPE Act also does not lay down any sentence nor does it alter any existing sentence for an offence.
Now coming to Article 2(1), the bench noted that the first part of it prohibits any law that prescribes judicial punishment for violation of law with retrospective effect. “What is prohibited is conviction or sentence for any offence under an ex post facto law, albeit the trial itself is not prohibited. Trial under a procedure different from the one when at the time of commission of an offence, or by a court different from the time when the offence was committed is not unconstitutional on account of violation of sub-article (1) to Article 20 of the Constitution.”
Thus it held that the Article 20(1) of the Constitution has no applicability either to the validity or invalidity of Section 6A of the DSPE Act.
The court observed 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 Constitutions. “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”, it was held.
The judgment also noted that the Parliament again inserted Section 17A in the Prevention of Corruption Act, 1988 w.e.f. 26.07.2018.It also provided for sanction before prosecution but without any classification of Government servants. All Government servants of whatever category, class, or level, are provided protection under Section 17A of the PC Act, 1988.