The Supreme Court held that “once a law is declared to be violative of Part III of the Constitution, it is void ab initio, still born, unenforceable and non est in view of Article 13(2) of the Constitution.”
A five-judge Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K. Maheshwari delivered a unanimous judgment to this effect.
In Subramanian Swamy, a five-judge Bench headed by Justice R.L. Lodha struck downSection 6A (1) of the Delhi Special Police Establishment (DSPE) Act.
Today, the Bench held thatArticle 20(1) of the Constitution is not applicable either to validate or invalidate Section 6A of the DSPE Act, which is procedural in nature.
Article 20(1) is confined to conviction and sentencing and does not refer to any procedural process, the Bench added.
Under Section 6A(1), approval of the Union government was required to conduct any inquiry or investigation into any offence alleged to have been committed under thePrevention of Corruption Act (PC Act), 1988 if the allegations relate to:
(a) Employees of the Union government of the level of joint secretary and above.
(b) Officers appointed by the Union government in corporations established by or under any Central Act, government companies, societies and local authorities owned or controlled by the government.
The Constitution Bench had declared Section 6A of the DSPE Act unconstitutional on the ground that it violatedArticle 14of the Constitution due to its classification of government servants into two categories, one to whom Section 6(A) applied and the other to whom it did not.
The Bench in Subramanian Swamy had not decided whether the ruling would only have a prospective effect or whether it would also apply retrospectively.
The present Bench dealt with the argument that striking down Section 6A(1) created an offence, and thus the judgment which declared it unconstitutional could not have a retrospective effect.
The Bench framed three issues.
Whether Section 6A of the DSPE Act is part of the procedure or does it introduce a conviction or sentence?
Justice Nath, who authored the judgment for the Bench, held that Section 6A of the DSPE Act was part of the procedure only in the form of a protection for senior government servants.
It did not introduce any new offence nor did it enhance the punishment or sentence.
“Section 6A of the DSPE Act does not lay down or introduce any conviction for any offence. It is a procedural safeguard only 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 any offence,” the Bench ruled.
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?
The Bench held that Article 20(1) of the Constitution is confined to conviction and sentencing and does not refer to any procedural process.
Article 20(1) does not refer to any procedural process which may result in conviction, acquittal or sentence, the Bench ruled.
The Bench held that Article 20(1) of the Constitution has no applicability either to the validity or invalidity of Section 6A of the DSPE Act.
Article 20(1) states that no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
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 only apply prospectively from the date of its declaration as unconstitutional?
The Bench held that once a law is declared to be unconstitutional, being violative of Part III of the Constitution, then it is “void ab initio, still born, unenforceable and non est in view of Article 13(2) of the Constitution.”
Article 13(2) provides that the State shall not make any law which takes away or abridges the rights conferred by this Part (Part III) and any law made in contravention of this clause shall, to the extent of the contravention, be void.
The Bench thus declared that: “Section 6A of the DSPE Act is held to be not in force from the date of its insertion, that is, September 11, 2003.”
Pertinently, even though the Supreme Court in 2014 struck down Section 6(A) of the DSPE Act, the Parliament in 2018 inserted Section 17A in the PC Act which bars police officers from conducting any enquiry or inquiry (sic) or investigation into any offence alleged to have been committed by a public servant without the approval of the competent authority in the following manner:
“a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of the [Union] government;
“(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a state, of the [state] government;
“(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed.”
But the approval of the concerned authority is not required in cases involving the arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person.
The only distinction between Section 6A of the DSPE Act and Section 17A of the PC Act is that the latter makes no classification of government servants.
All government servants of whatever category, class, or level are provided protection under Section 17A of the PC Act, 1988.