Section 6A of DSPE Act: Does 2014 Judgment operate retrospectively? Constitution Bench of SC begins hearing

Section 6A of DSPE Act: Does 2014 Judgment operate retrospectively? Constitution Bench of SC begins hearing

Shruti Mahajan

A Constitution Bench of the Supreme Court today began hearing the case of CBI vs RR Kishore which raises the question relating to retrospective applicability of the Supreme Court judgment on Section 6A of the Delhi Special Police Establishment Act, 1946.

The matter is being heard by a Constitution Bench headed by Justice Arun Mishra and comprising Justices Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat. 

Section 6A of the DSPE Act was struck down as unconstitutional by the Supreme Court in its judgment in 2014 in the case of Subramanian Swamy vs CBI. This Section provided for prior sanctions or approval to be obtained from the Central Government before acting against a Central Government official above the level of Joint Secretary. These sanctions were to be obtained in graft cases under the Prevention of Corruption Act.

The Supreme Court had struck down this Section as violative of Article 14 of the Constitution of India on the ground that there cannot be a distinction between officials based on their status and rank.

In the instant case, RR Kishore was sought to be prosecuted and the High Court had held that his case needed to be considered afresh since no prior approval as required under Section 6A(1) was sought. Between the time of the ruling of the High Court and the appeal against the same before the Supreme Court, the 2014 decision striking down the provision was passed. Thus, in light of the fact that the Subramanian Swamy judgment was silent on whether the judgment’s operation would be prospective or retrospective, the matter was referred to a Constitution Bench.

RR Kishore who argued in person before the Court today submitted that there can be no difference between substantive and procedural law when it comes to retrospective applicability. Arguing on the purpose and object of the Section in question, Kishore argued that the provision intends to protect officials against threat and intimidation and thus the immunity provided under the Section was brought in. Such protection is essential in order to ensure that the officials are able to work freely.

Kishore argued that immunity given under Section 6A was a substantive right and thus the striking down of the same cannot have a retrospective effect. Thus, cases initiated prior to striking down Section 6A cannot now be revisited on the ground that no prior sanction for prosecution is required. Therefore, the operation of the 2014 judgment would be prospective, argued Kishore.

He also submitted the operation of any judicial pronouncement would always be prospective unless the judgment itself specifies otherwise.

The case remained part-heard today with the Court granting time to Kishore to prepare his arguments on the point of law as well as judicial precedents. The matter is likely to be heard next on November 7.

[Read Order]

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