The Supreme Court says its 2014 rule on immunity for senior government officials is retroactive.

THE ALREADY OVERTURNED provision in the Delhi Special Police Establishment (DSPE) Act, 1946, which required central government approval for the CBI to prosecute officers of the rank of Joint Secretary and above, will be declared null and void as of September 11, 2003, when it was inserted into the Act, the Supreme Court ruled Monday.

A five-judge Constitution panel led by Justice S K Kaul stated that its 2014 decision in Subramanian Swamy versus Union of India, in which Section 6A(1) of the DSPE Act was declared unlawful, will have retroactive effect.

The question before the bench, which also included Justices Sanjiv Khanna, A S Oka, Vikram Nath, and J K Maheshwari, was “whether a constitutional court’s declaration of any law as unconstitutional would have retrospective effect or would apply prospectively.”

The bench concluded that “from the… discussion, it is crystal clear that once a law is declared unconstitutional, being violative of Part-III of the Constitution, then it would be held to be void ab initio, stillborn, unenforceable, and non est in view of Article 13(2) of the Constitution and its interpretation by authoritative pronouncements.”

“As a result, the Constitution Bench’s decision in the case of Subramanian Swamy… will have retroactive effect.” “Section 6A of the DSPE Act is held to be ineffective as of the date of its insertion, 11.09.2003,” it stated.

According to Article 13(2), “the State shall not make any law which takes away or abridges the rights conferred by this part, and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

“Section 6A(1), which requires approval of the central government to conduct any enquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 where such allegation relates to (a) employees of the central government of the level of Joint Secretary and above and (b) such officers as are appointed by the central government in corporations established by or under any central government,” the court said in its 2014 decision.

The bench stated on Monday that “Section 6A of the DSPE Act is only a part of the procedure in the form of protection for senior government servants.” It does not create a new offence, nor does it increase the punishment or sentence,” and thus does not violate Article 20(1) of the Constitution.

According to Article 20 (1), no one shall be convicted of any offence except for a violation of a law in force at the time of the commision of the Act charged as an offence, nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commision of the offence.

The question occurred during a hearing in which the court was considering an appeal filed by the CBI contesting a Delhi High Court ruling in the case of a Chief District Medical Officer who was arrested while allegedly receiving a bribe.

The case was heard by a two-judge panel before being referred to the five-judge Constitution bench, which issued its decision on Monday.

The five-judge bench said that “in 1969, the central government issued the Single Directive, which is a consolidated set of instructions issued to the CBI by various ministries/departments and has been amended from time to time,” delving into the history of the safeguards for government employees from prosecution.

“Directive No.4.7(3) contained instructions regarding the modalities of initiating an enquiry or registering a case against certain categories of civil servants and provided for a prior sanction of the designated authority to initiate investigation against officers of the government and public sector undertakings and nationalised banks above a certain level,” the directive stated.

The Supreme Court ruled in the Vineet Narain case on December 18, 1997, that this was unconstitutional.

The sanction requirement, comparable to Single Directive No.4.7(3), was implemented through an ordinance on August 25, 1998, and it lasted until October 27, 1998, when it expired. Following that, Section 6A, similar to the Single Directive, was introduced into the DSPE Act in 2003, but was declared unlawful in the 2014 judgement.

However, with effect from July 26, 2018, Parliament inserted Section 17A in the Prevention of Corruption Act, 1988, and it has remained on the statute book, the bench noted, adding that it also provided for sanction before prosecution but without any classification of government servants. “All government servants, regardless of category, class, or level, are protected under Section 17A of the PC Act, 1988,” it stated.

“From the foregoing, we note that there are small windows of a couple of years on two occasions when such protection was not available; otherwise, the protection regarding sanction before prosecution has remained in force and continues to be so even now,” the verdict stated.

According to CBI insiders, “one would have to read the fine print of the order to understand its vast implications.” “But for the time being, we are viewing it as the resolution of a pending matter before the court regarding one of our cases,” a source added.

According to a former senior CBI officer, the judgement appears to have the potential to open instances where the government declined permission to begin an investigation between 2003 and 2014.

Another officer stated that it was improbable that a Pandora’s box would be opened.

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