2023 (9) TMI 1691 - SC - Indian Laws

Whether the declaration made by a Constitution Bench of this Court in the case of Subramanian Swamy vs. Director Central Bureau of Investigation and another 2014 (5) TMI 783 - SUPREME COURT that Section 6A of the Delhi Special Police Establishment Act 194 DSPE Act being unconstitutional can be applied retrospectively in context with Article 20 of the Constitution - Accepted bribe to set the things right for the radiologist conducting Pre-Natal test to determine the sex of the foetus in contravention of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994 - trap which was a part of the enquiry/investigation had been laid without the previous approval of the Central Government as provided under Section 6A of the DSPE Act - interpretation of the word void used in Article 13(2). HELD THAT - Section 6A(1) of the DSPE Act creates an immunity and grants a protection. It cannot be taken away retrospectively either by retrospective amendment or by a judgment declaring such immunity invalid. Section 6A was declared ultra vires Article 14 of the Constitution and as such under Article 13(2) of the Constitution it is void to the extent of the contravention. The argument further proceeds to elaborate the meaning and scope of the word void which came up for consideration in a number of cases right from 1951 to 1963. Dr. Datar has very fairly submitted that this Court has held that a provision which is held to be void would be a nullity still born or dead as if it was never in existence at all. It may be appropriately noted here that the present case does not involve repeal or revival of any enactment but is a case where a Constitution Bench of this Court has declared a statutory provision as invalid and unconstitutional being hit by Article 14 of the Constitution. As such Section 6 of the 1897 Act will have no application. The submission of Mr. Datar learned counsel is too far-fetched and gives a very wide and open-ended expanse to Article 20(1) of the Constitution stretching it even to procedural aspects merely on account of the marginal note. As already stated even at the cost of repetition it may be noted that Article 20(1) of the Constitution only and only confines to conviction and sentence. It does not at all refer to any procedural part which may result into conviction or acquittal and/or sentence. Accordingly the argument of Mr. Datar cannot be accepted. Change in procedure post the offence not attracting Article 20(1) of Constitution has been the settled law since 1953 enunciated in the Constitution Bench judgment of Rao Shiv Bahadur Singh 1953 (5) TMI 12 - SUPREME COURT For the reasons recorded it can be safely concluded that Article 20(1) of the Constitution has no applicability either to the validity or invalidity of Section 6A of the DSPE Act. The Constitution Bench in case of Subramanian Swamy (supra) declared Section 6A of the DSPE Act as unconstitutional on the ground that it violates Article 14 of the Constitution on account of the classification of the Government servants to which the said provision was to apply. The invalidity of Section 6A of the DSPE Act is not on the basis of legislative incompetence or for any other constitutional violation. In Vineet Narain (supra) this Court had held that Single Directive No. 4.7(3) to be invalid and it was struck down on the ground that by an administrative instruction the powers of the CBI conferred under statute could not be interfered with. It was because of the said declaration that Section 6A was inserted in the DSPE Act in 2003. Under Article 13(1) all existing laws prior to the commencement of the Constitution insofar as they are inconsistent with the provisions of Part-III would be void to the extent of inconsistency. Further according to Article 13(2) the State is prohibited from making any law which takes away or abridges the rights conferred by Part-III and further that any law made in contravention of this clause would be void to the extent of contravention. Article 13(2) prohibits making of any law so it would be relating to laws made post commencement of the Constitution like the case at hand. In the present case as it has been held that Section 6A of DSPE Act is violative of Article 14 of Part-III of the Constitution as such the same would be void. The word void has been interpreted in a number of judgments of this Court beginning 1951 till recently and it has been given different nomenclature such as non est void ab initio still born and unenforceable . It may be worthwhile to mention that the earlier seven judge Bench and Constitution Bench judgments relate to Article 13(1) of the Constitution dealing with pre-existing laws at the time of commencement of the Constitution. There are later judgments relating to Article 13(2) of the Constitution. However reliance is placed upon the judgments on Article 13(1) while interpreting the word void used in Article 13(2). From the above discussion it is crystal clear that 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 in view of Article 13(2) of the Constitution and its interpretation by authoritative pronouncements. Thus the declaration made by the Constitution Bench in the case of Subramanian Swamy (supra) 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. 11.09.2003. As indicated in the earlier part of this judgment this Court has not delved into the other issues and arguments not germane to the reference order. Accordingly the matters may be placed before the appropriate Bench to be heard and decided on merits.

Summary

The core legal questions considered by the Court in this Constitution Bench judgment are as follows:

1. Whether the declaration by a Constitution Bench that Section 6A(1) of the Delhi Special Police Establishment Act, 1946 (DSPE Act) is unconstitutional under Article 14 of the Constitution should be applied retrospectively or prospectively, particularly in the context of Article 20(1) of the Constitution.

2. Whether Section 6A of the DSPE Act is a procedural provision or one that introduces conviction or sentence, and thereby whether Article 20(1) of the Constitution applies to it.

3. The effect of the invalidation of Section 6A(1) of the DSPE Act on investigations and prosecutions initiated under it prior to the declaration of unconstitutionality.

4. The applicability and effect of Section 6A(2) of the DSPE Act vis-`a-vis Section 6A(1) in ongoing cases.

5. The scope and interpretation of Article 20(1) of the Constitution concerning retrospective application of judicial decisions invalidating statutory provisions.

6. The distinction, if any, between laws held unconstitutional due to lack of legislative competence and those held unconstitutional due to violation of fundamental rights under Part III of the Constitution.

7. The relevance of Section 6 of the General Clauses Act, 1897, on the effect of repeal or invalidation of statutory provisions.

Issue-wise Detailed Analysis:

1. Nature of Section 6A of the DSPE Act and Applicability of Article 20(1) of the Constitution

Legal Framework and Precedents: Article 20(1) prohibits conviction or sentence under ex post facto laws but does not prohibit trial under a different procedure or by a different court than that existing at the time of the offence. The Constitution Bench in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh (1953) held that Article 20(1) protects only conviction and sentence, not trial or procedure. Other precedents such as S.K. Ghosh, Rattan Lal, Sukumar Pyne, and G.P. Nayyar reaffirm that procedural changes do not violate Article 20(1).

Court's Interpretation and Reasoning: Section 6A(1) of the DSPE Act requires prior approval of the Central Government to conduct inquiry or investigation against certain senior officials. The Court held that this provision is purely procedural and does not create any offence, nor does it prescribe conviction or sentence. It is a procedural safeguard regulating investigation initiation.

Application of Law to Facts: Since Section 6A(1) is procedural, Article 20(1) does not apply to its invalidation or retrospective effect. The Court rejected arguments that immunity under Section 6A(1) attracts protection under Article 20(1), emphasizing that Article 20(1) protects against retrospective criminal liability, not procedural safeguards.

Treatment of Competing Arguments: The appellant-CBI argued that Section 6A is procedural and hence Article 20(1) is not engaged. The respondent and some submissions contended that immunity under Section 6A(1) is substantive and protected by Article 20(1). The Court sided with the appellant-CBI's view, relying on settled precedents.

Conclusion: Section 6A(1) is a procedural provision and Article 20(1) of the Constitution does not apply to its retrospective invalidation.

2. Retrospective or Prospective Effect of the Declaration of Unconstitutionality of Section 6A(1)

Legal Framework and Precedents: Article 13(2) of the Constitution declares that any law made in contravention of Part III fundamental rights shall be void to the extent of contravention. The Court examined various precedents interpreting the word "void" in Article 13, including Keshavan Madhava Menon, Behram Khurshed Pesikaka, M.P.V. Sundararamier, Deep Chand, Mahendra Lal Jaini, and State of Manipur. These cases establish that laws held unconstitutional under Article 13(2) are void ab initio (still born), unenforceable from inception, and not merely prospectively invalid.

Court's Interpretation and Reasoning: The Court distinguished between pre-constitutional laws (Article 13(1)) and post-constitutional laws (Article 13(2)). Post-constitutional laws violating fundamental rights are void from inception and cannot be revived by subsequent amendments or judicial decisions. The Court held that Section 6A(1) of the DSPE Act, held unconstitutional for violating Article 14, is void ab initio from the date of its insertion in 2003.

Application of Law to Facts: The Court applied these principles to the case, holding that the declaration of invalidity by the Constitution Bench in Subramanian Swamy (2014) operates retrospectively, rendering Section 6A(1) invalid from 11.09.2003.

Treatment of Competing Arguments: The appellant-CBI argued for retrospective effect based on the Blackstonian theory and absence of express prospective declaration. The respondent argued that the declaration should be prospective to protect vested rights and ongoing proceedings. The Court rejected the prospective application argument, relying on authoritative precedents.

Conclusion: The declaration of unconstitutionality of Section 6A(1) is retrospective and the provision is void ab initio.

3. Effect of Invalidation of Section 6A(1) on Investigations and Prosecutions

Legal Framework and Precedents: The Court referred to the judgment in H.N. Rishbud and Inder Singh, which held that investigations conducted without prior sanction under a similar provision would not necessarily vitiate the trial if no prejudice is shown. Also, Section 17A of the PC Act, 1988, introduced in 2018, provides a uniform sanction requirement without classification.

Court's Interpretation and Reasoning: Since Section 6A(1) is void ab initio, investigations conducted without prior approval under it are not illegal per se. The Court noted that investigations can continue under the existing legal framework, including Section 17A of the PC Act, which applies uniformly to all public servants.

Application of Law to Facts: The Court observed that where evidence has been gathered without approval under Section 6A(1), such evidence may be relied upon unless actual prejudice is shown. Investigations can proceed without prior approval under Section 6A(1) post its invalidation.

Treatment of Competing Arguments: The respondent argued that the invalidation should lead to discharge or closure of cases initiated without prior approval. The Court held that such a drastic consequence is not warranted and that investigations and prosecutions can continue under the legal regime post-invalidation.

Conclusion: Investigations and prosecutions initiated without prior approval under Section 6A(1) are not vitiated by the invalidation of the provision; proceedings may continue under applicable laws.

4. Applicability of Section 6A(2) of the DSPE Act

Legal Framework: Section 6A(2) provides an exception to the requirement of prior approval for cases involving on-the-spot arrests for accepting gratification other than legal remuneration.

Court's Reasoning: The appellant-CBI contended that Section 6A(2) applies to the facts of certain cases, negating the requirement of prior approval. The respondent disputed this applicability.

Conclusion: The Court did not conclusively decide this issue but noted the contention and the need for further consideration in regular jurisdictional hearings.

5. Interpretation of Article 20(1) of the Constitution

Legal Framework and Precedents: Article 20(1) protects against retrospective criminal laws that create offences or increase punishment. The Court relied on the Constitution Bench in Rao Shiv Bahadur Singh and subsequent cases emphasizing that Article 20(1) protects only conviction and sentence, not procedural aspects of trial or investigation.

Court's Reasoning: The Court held that Article 20(1) does not confer a vested right to any particular procedure or immunity from investigation. The protection is against retrospective penal laws, not procedural safeguards or restrictions.

Application: The invalidation of Section 6A(1), a procedural provision, does not violate Article 20(1).

6. Distinction Between Laws Unconstitutional for Lack of Legislative Competence and Those Violating Fundamental Rights

Legal Framework: The Court referred to M.P.V. Sundararamier and others, which distinguished laws void for legislative incompetence (nullity) and laws void for violation of constitutional restrictions (unenforceable). Both are void but differ in quality and consequences.

Court's Reasoning: The Court held that Section 6A(1) was invalid due to violation of Article 14 (a fundamental right) and thus unenforceable from inception. This distinction is relevant for understanding the nature of the invalidity but does not affect the retrospective effect.

7. Relevance of Section 6 of the General Clauses Act, 1897

Legal Framework: Section 6 provides that repeal of an enactment does not affect previous operation or rights accrued unless a different intention appears.

Court's Reasoning: The Court held that Section 6 of the General Clauses Act is inapplicable as the case involves judicial invalidation of a statutory provision, not repeal by legislature. Hence, the principles governing repeal do not apply.

Significant Holdings:

"Section 6A of the DSPE Act is a procedural provision and does not create any offence or prescribe conviction or sentence. Therefore, Article 20(1) of the Constitution, which protects against retrospective criminal laws affecting conviction and sentence, has no applicability to the invalidation of Section 6A."

"A law declared unconstitutional under Article 13(2) of the Constitution is void ab initio, unenforceable, and non est from the date of its enactment. Therefore, the declaration of unconstitutionality of Section 6A(1) of the DSPE Act operates retrospectively from its insertion in 2003."

"Investigations and prosecutions initiated without prior approval under Section 6A(1) of the DSPE Act are not vitiated by the invalidation of the provision and may continue under the applicable legal framework, including Section 17A of the PC Act, 1988."

"Section 6 of the General Clauses Act, 1897, governing repeal of statutes, does not apply to judicial invalidation of statutory provisions."

"No person has a vested right to any particular procedure of investigation or trial, and procedural changes post-offence do not violate Article 20(1) of the Constitution."

"The doctrine of prospective overruling is an exception and must be expressly stated; in absence of such express declaration, judicial decisions invalidating laws apply retrospectively."

"The distinction between laws void for lack of legislative competence and laws void for violation of fundamental rights is relevant for characterizing invalidity but does not affect retrospective operation of judicial invalidation."