2014 verdict striking down immunity to senior officers in graft cases will have retrospective effect, says SC

The Supreme Court on Monday declared that its previous 2014 judgement, removing immunity from prosecution to central government officer in graft cases in absence of sanction, would be applied retrospectively.

The top court emphasised that once a law is declared as unconstitutional or violative of fundamental rights, it would be treated as unenforceable and stillborn.

A five-judge Constitution bench led by Justice Sanjay Kishan Kaul ruled that its 2014 judgement -- which held Section 6A of the Delhi Special Police Establishment Act as invalid and unconstitutional-- would be applied retrospectively.

The judgement is significant as all the pending cases against central government officers under the Prevention of Corruption Act since September 11, 2003, when the provision was inserted, can be prosecuted without the sanction and no trial would be held as vitiated in the absence of prior approval.

The bench also held that Article 20(1) of the Constitution has no applicability either to the validity or invalidity of Section 6A of the Delhi Special Police Establishment Act.

Section 6A(1) of the DSPE Act was held to be invalid and violative of Article 14 of the Constitution by a five-judge bench on May 6, 2014 in the case of Subramanian Swamy.

According to Section 6A of the DSPE Act, the approval of central government is mandatory to conduct inquiry or investigation for offences under the Prevention of Corruption Act, 1988 where such allegation relates to the employees of the central government of the level of Joint Secretary and above.

A question on applicability of the judgement arose as Article 20(1) of the Constitution stated no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of offence.

Dealing with the legal question if the 2014 would be applied retrospectively, the bench said, "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."

Citing Article 13(2) of the Constitution and its interpretation by authoritative pronouncements, the bench also comprising Justices Sanjiv Khanna, Abhay S Oka, Vikram Nath and J K Maheshwari, said, the declaration made by the Constitution bench in the case of Subramanian Swamy 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. September 11, 2003," the bench said.

The court dealt with the instant issue as the Constitution bench in Subramanian Swamy case did not decide was whether the declaration of Section 6A(1) of the DSPE Act to be violative of Article 14 of the Constitution would have retrospective effect or it would apply prospectively.

On May 6, 2014, the Constitution bench in Swamy's case held that Section 6A(1) was invalid and violative of Article 14 of the Constitution.

The provision required approval of the central government to conduct any inquiry or investigation into any offence alleged to have been committed under the PC Act, 1988 where such allegation related to the employees of the central government of the level of Joint Secretary and above. Such prior approval was also mandatory for 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 the government.

In July, 2018, the central government brought an amendment to the PC Act by inserting Section 17A which once again extended protection to the central government employees from prosecution without sanction.