INTRODUCTION:
CBI v. R.R. Kishore is a landmark judgement concerning the retrospective application of the judgement related to anti-corruption investigations. In that context, this case examines the constitutional validity of certain provisions of the Delhi Special Police Establishment (DSPE) Act, 1946. This question of constitutional validity was especially those provisions affecting the investigation procedures of officials at higher ranks or public servants. Therefore, this judgment has significant implications for how unconstitutional laws are applied, especially regarding their retrospective impact on investigations and legal proceedings.
FACTS
The background of the case is from a constitutional challenge towards Section 6A of the DSPE Act, 1946, wherein, this provision was added to the act by an amendment in the year 2003. This amendment is a requisite for the CBI to seek prior permission/approval from the central government concerning conducting any inquiry or investigations of offences committed by higher officials/public servants under the Prevention of Corruption Act (PCA), 1988. The only exception to it is the instances where arrests are made on the spot without a warrant or so. The provision was considered to be providing a procedural advantage to the public servants of higher ranks, which in turn was debated concerning its implications.
This issue was previously challenged in the case of Subramanian Swamy v. CBI, where it was argued that Section 6A, violated Article 14 of the Indian Constitution, as it essentially makes an unreasonable classification solely based on the rank of the public servant. This results in making it difficult for the effective application of anti-corruption measures, therefore, the court found it to be “arbitrary”. However, the one thing the court failed to address in the year 2014, is with regard to retrospective or prospective application of the judgment.
Therefore, in the present case, R.R. Kishore, a public servant was caught in a case of corruption concerning bribery. Wherein, he claimed immunity as per the provision (Section 6A) of DSPE, as the inquiry/investigation lacked the central government’s prior approval. The trial court denied his claim, but on the other hand, the Delhi HC ordered for re-investigation, conditional on the approval of the central government. While the appeal by CBI was pending, the SC in 2014 in the Subramanian Swamy case pronounced the provision to be void.
The key issue for the Supreme Court in CBI v. R.R. Kishore was whether the 2014 judgment applied retrospectively, invalidating Section 6A from its enactment in 2003, and if so, whether this retrospective application infringed on Article 20(1), which protects against ex-post facto laws. On September 11, 2023, the Court ruled that Section 6A was void ab initio, applying retrospectively from its introduction, thereby confirming that Kishore’s claim of immunity was baseless.
ISSUES
- Whether Section 6A of the DSPE Act provided procedural immunity to public servants at higher ranks, affected investigations that were conducted without prior approval before the provision was held unconstitutional.
- Whether the verdict of the unconstitutional nature of Section 6A of the act, is to be applied retrospectively or prospectively?
- Whether the application of the Subramanian Swamy case retrospectively would violate Article 20(1) of the Indian Constitution?
ARGUMENTS
Appellant’s side of Arguments
The appellant argued that Section 6A was “procedural in nature and not penal/substantive”, therefore, implying that it did not attract Article 20(1) of the Indian Constitution. On one hand, section 6A only provides the safeguard of requiring prior approval from the central government for investigation against high-ranking public servants, and does not specify/define/prescribe punishments. On the other hand, Article 20 (1) provides protection against the retrospective application of penal law, but the argument here was that this constitutional provision does not apply as it was a mere procedural safeguard.
They put forth the argument that Section 6A does not provide any sort of “blanket immunity” from the PCA, but rather provides a procedural safeguard, nor did it create any “vested rights” covered by Article 20. Therefore, the appellant claims that the DSPE Act’s provision remained as a means to protect “honest officials”, from being subject to undue harassment.
In the end, they put forth the argument backed up by several verdicts, that declaring it unconstitutional implies that it is void ab initio, until and unless the legislature gets involved to resolve the problem.
Respondent’s side of Arguments
The respondent referred to the fact that the CBI’s stance of arguments is contradictory to that of the Union/Central government’s stance, as being a party the Union has stated in the affidavit that such approval is required as per the provision of DSPE. The CG also agreed to the Delhi HC rule on the case to safeguard public servants from such investigations.
The respondent furthered his claim that CBI did not just violate Section 6A but also Sections 17 and 18 of the PCA, 1988. Given the fact that the FIR was filed as per Section 7 of the PCA, the CBI went on to investigate mere allegations of undue accumulation of assets without the required authorization.
A reference to the timeline of the case was made, that the FIR was registered in 2004, HC’s judgment in 2006, and CBI appealed in 2007. Until, the Subramanian Swamy case in 2014, Section 6A stayed valid and operative, after that 2014 judgement the section was struck down. Therefore, the respondents argued based on the facts and the CBI’s appeal is unreasonable.
The respondent also argued with the interpretation of Section 6 of the General Clauses Act, 1897, where it is specified that the “accrued rights” under a statutory repeal sustain the same. In the end, citing various judgements the respondent pointed out that it is to be assumed that judicial decisions apply prospectively until and unless it is stated otherwise.
JUDGEMENT
The Constitutional Bench of the Supreme Court held that when a law is pronounced to be struck down or held unconstitutional, it is void from the beginning, making it non-existent and unenforceable. Therefore, in that context, the court held that when Section 6A is declared unconstitutional, then it applies retrospectively, which in turn makes it void from the year 2003, since its amendment.
Furthermore, the SC made an accurate distinction between “pre-constitution and post-constitution laws”, wherein the former is void from the commencement of the Indian constitution and the latter is void from their date of inception. Therefore, asserted that the retrospective application of pronouncing a law unconstitutional extends to all of the post-constitution laws that violate the Constitution.
The Supreme Court dismissed the claim that applying its decision retroactively would impact the conclusiveness of judgments or orders under Section 6Q by noting that these rulings could be reexamined when contested under Article 14 of the Constitution instead. Additionally, the court disregarded issues concerning any difficulties faced by public officials who had previously benefited from Section 6A by stating that no inherent privileges or reasonable expectations were associated with this provision. The Court stressed the importance of interest, in ensuring impartial and efficient investigations into corruption as being more significant, than individual challenges.
