A Supreme Court constitutional Bench on 11 September 2023 held its judgment of 2014 (Dr. Subramanian Swamy case) which declared invalid a legal provision mandating the CBI to take prior permission before investigating corruption cases against senior government officials has a retrospective effect.
Key points
- 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.
- 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”.
- Declaration made by the Constitution Bench judgment in 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.
- 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.
- Article 20(1) had no applicability or relevance to the validity or invalidity of Section 6A of the DSPE Act. Article 20(1) mandates that a person should only be convicted under a law which was in force at the time of the crime.
- 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.
- 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.
