Then comes the question as to what is
the effect of an amendment of the
Constitution in the two types of cases. So
far 'as pre-Constitution laws are concerned
the amendment of the Constitution which
removes the inconsistency will result in the
revival of such laws by virtue of the
doctrine of eclipse, as laid down in Bhikaji
Narain's case (1) for the pre-existing laws
were not still-born and would still exist
though eclipsed on account of the
inconsistency to govern_ pre-existing
matters. But in the case of post-
Constitution laws, they would be still
born to the extent of the contravention.
And it is this distinction which results
in the impossibility of applying the
doctrine of eclipse to post-Constitution
laws, for nothing can be revived which
never had any valid existence. We are
therefore of opinion that the meaning of the
word "void" is the same both in Art 13 (1)
and Art. 13 (2), and that the application of
the doctrine of eclipse in one case and not
in the other case does not depend upon
giving a different meaning to the word
"void' in the two parts of Art. 13; it arises
from the inherent difference between Art.
13 (1) and Art. 13 (2) arising from the fact
that one is dealing with pre-Constitution
laws, and the other is dealing with post-
Constitution laws, with the result that in
one case the laws being not still-born the
doctrine of eclipse will apply while in the
other case the laws being still born-there
will be no scope for the application of the
doctrine of eclipse. Though the, two clauses
form part of the same Article, there is a
vital difference in the language employed
in them as also in their content and scope.
By the first clause the Constitution
recognises the existence of certain
operating laws and they are declared void,
to the extent of their inconsistency with
fundamental rights. Had there been no
such declaration, these laws would have
continued to operate. Therefore, in the case
of pre- Constitution laws what an
amendment to the Constitution does is to
remove the shadow cast on it by this
declaration. The law thus revives.
However, in the case of the second
clause, applicable to post Constitution
laws, the Constitution does not
recognise their existence, having been
made in defiance of a prohibition to
make them. Such defiance makes the
law enacted void. In their case
therefore there can be no revival by an
amendment of the Constitution, MO
though the bar to make the law is
removed, so far as the period after the
amendment is concerned. In the case
of post- Constitution laws, it would be
hardly appropriate to distinguish
between laws which are wholly void-as
for instance, those which contravene
Art. 31-and those which are
substantially void but partly valid, as
for instance, laws contravening Art.
19. Theoretically, the laws falling
under the latter category may be valid
qua non-citizens; but that is a wholly
unrealistic consideration and it seems
to us that such nationally partial
valid existence of the said laws on the
strength of hypothetical and pedantic
considerations cannot justify the
application of the doctrine of eclipse
to them. All post Constitution laws
which contravene the mandatory
injunction contained in the first part
of Art. 13 (2) are void, as void as are
the laws passed without legislative
competence, and the doctrine of
eclipse does not apply to them. We are
therefore of opinion that the Constitution
(Fourth Amendment) Act cannot be applied
to the Transfer Act in this case by virtue of
the doctrine of eclipse It follows therefore
that the Transfer Act is unconstitutional
because it did not comply with Art. 31 (2),
as it stood at the time it was passed. It will
therefore have to be struck down, and the
petitioner given a declaration in his favour
accordingly.
(emphasis supplied)”
(vii) In the case of State of Manipur (supra),
recently a three-judge Bench of this Court, was
dealing with an appeal against the judgement of
the Manipur High Court which had declared the
Manipur Parliamentary Secretary (Appointment,
Salary and Allowances and Miscellaneous
Provisions) Act, 2012 (Manipur Act No. 10 of
2012) as also the Repealing Act, 2018, as
unconstitutional. Justice L. Nageswara Rao,
speaking for the Bench, observed that where a
statute is adjudged to be unconstitutional, it is
as if it had never been and any law held to be
unconstitutional for whatever reason, whether
due to lack of legislative competence or in
violation of fundamental rights, would be void
ab initio. Paragraph Nos. 22 and 23 of the said
judgment are reproduced hereunder:
“22. Where a statute is adjudged to be
unconstitutional, it is as if it had
never been. Rights cannot be built up
under it; contracts which depend upon it
for their consideration are void; it
constitutes a protection to no one who has
acted under it and no one can be punished
for having refused obedience to it before the
decision was made. Field, J. in Norton v.
Shelby County, observed that “an
unconstitutional act is not law, it
confers no rights, it imposes no duties,
it affords no protection, it creates no
office; it is, in legal contemplation, as
inoperative as though it had never
been passed”.
23. An unconstitutional law, be it
either due to lack of legislative
competence or in violation of
fundamental rights guaranteed under
Part III of the Constitution of India, is
void” ab initio. In Behram Khurshid
Pesikaka v. State of Bombay, it was held
by a constitution bench of this Court that
the law-making power of the State is
restricted by a written fundamental law
and any law enacted and opposed to the
fundamental law is in excess of the
legislative authority and is thus, a nullity.
A declaration of unconstitutionality
brought about by lack of legislative
power as well as a declaration of
unconstitutionality brought about by
reason of abridgement of fundamental
rights goes to the root of the power
itself, making the law void in its
inception. This Court in Deep Chand v.
State of Uttar Pradesh & Ors. summarised
the following propositions:
“(a) Whether the Constitution
affirmatively confers power on the
legislature to make laws subject-wise or
negatively prohibits it from infringing any
fundamental right, they represent only
two aspects of want of legislative power;
(b) The Constitution in express terms
makes the power of a legislature to make
laws in regard to the entries in the Lists
of the Seventh Schedule subject to the
other provisions of the Constitution and
thereby circumscribes or reduces the said
power by the limitations laid down in
Part III of the Constitution;
(c) It follows from the premises that a
law made in derogation or in excess
of that power would be ab initio
void…
(emphasis supplied)”
Further after discussing the law laid
down by the previous pronouncements, the
principles were deduced in paragraph no. 28 to
state that a statute declared unconstitutional
by a court of law would be still born and non
est for all purposes. Paragraph 28 of the report
is reproduced hereunder:
“28. The principles that can be deduced
from the law laid down by this Court, as
referred to above, are:
I. A statute which is made by a
competent legislature is valid till it is
declared unconstitutional by a court of law.
II. After declaration of a statute as
unconstitutional by a court of law, it is
non est for all purposes.
III. In declaration of the law, the
doctrine of prospective overruling can be
applied by this Court to save past
transactions under earlier decisions
superseded or statutes held
unconstitutional.
IV. Relief can be moulded by this Court
in exercise of its power under Article 142 of
the Constitution, notwithstanding the
declaration of a statute as
unconstitutional.
(emphasis supplied)”
43. 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.377 OF 2007
CBI Vs R.R. KISHORE
Author: VIKRAM NATH, J.
SEPTEMBER 11, 2023.
Citation: 2023INSC817.
1. This Constitution Bench has been constituted to
consider whether the declaration made by a
Constitution Bench of this Court, in the case of
Subramanian Swamy vs. Director, Central
Bureau of Investigation and another1, that
Section 6A of the Delhi Special Police
Establishment Act, 1942 being
unconstitutional, can be applied retrospectively
in context with Article 20 of the Constitution.
1 (2014) 8 SCC 682
2 In short ‘DSPE Act’
Crl. Appeal No.377 of 2007 Page 1 of 106
2. Necessary facts relevant for the purposes of this
case are stated hereunder:
2.1 The appellant-Central Bureau of Investigation3
after registering the First Information Report at
02:00 pm on 16.12.2004 for offences under the
Prevention of Corruption Act, 19884 laid a trap
in the evening on the same day wherein the
respondent is said to have 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. The respondent applied for
discharge, inter alia, amongst others on the
ground that the 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.
3 In short, “CBI”
4 In short “PC Act, 1988”
Crl. Appeal No.377 of 2007 Page 2 of 106
2.2.The Special Judge, CBI, rejected the application
for discharge vide order dated 30.04.2006 which
was carried in revision before the High Court
and was registered as Criminal Revision Petition
No.366 of 2006. Learned Single Judge of the
High Court vide judgment dated 05.10.2006
framed three questions for consideration
namely:
1. What is the background with regard to
Section 6A of the DSPE Act?
2. Did the CBI acted in contravention of
Section 6A(1)?
3. If yes, does it mean that the entire trial,
consequent upon an illegal investigation,
is vitiated?
It answered question No.2 in favour of the
respondent and further with respect to question
No.3 left it open for the competent authority to
take the decision and further proceed with
reinvestigation and in case sanction is not
granted, to notify the Special Judge, CBI, to
close the case. The operative part of the order is
in paragraph 29 of the judgment which is
reproduced hereunder:
Crl. Appeal No.377 of 2007 Page 3 of 106
“29. It follows that if, at the initial stage of
trial, the illegality of investigation is
brought to the notice of the court and yet
the Trial Court continues with the trial
then, such proceedings would be liable to
be set aside by the High Court in exercise
of its revisional jurisdiction. In this case, in
view of the discussion above, it is clear that
the provisions of Section 6 A(1) of the
Prevention of Corruption Act, 1988 are
mandatory and not merely directory. The
investigation carried out in contravention of
such provisions is, therefore, clearly illegal,
in violation of a statutory requirement. The
dismissal of the discharge application
moved on behalf of the petitioner means
that the trial would continue. This cannot
be permitted in view of the discussion
above. Because, then the court would be
turning a blind eye and a deaf ear to the
illegality in investigation which has been
brought to its notice at the earliest stage.
However, it also does not mean that the
petitioner is entitled to a discharge and the
closure of the case against him. As pointed
out in Rishbud’s case and Mubarak Ali’s
case, reinvestigation is to be ordered in the
context of the provisions of section 6A of
the said Act. While the file is to be kept
pending before Special Judge, approval of
the Central Government is to be sought for
investigation. If approval is accorded then
the matter shall be reinvestigated as per
prescribed procedure and the material
gathered in such re-investigation shall be
placed before the Special Judge for further
proceedings in accordance with law. If the
approval is not given by the Central
Government, then the same shall be
notified to the Special Judge who shall
then close the case.”
Crl. Appeal No.377 of 2007 Page 4 of 106
2.3.The CBI, feeling aggrieved by the judgment of
the Delhi High Court, has preferred the present
appeal substantially on the ground that Section
6A(2) of DSPE Act would be applicable and not
Section 6A(1) thereof. The High Court erred in
holding that Section 6A(1) was applicable.
2.4.The said appeal is pending since 2007. During
the pendency of the appeal Section 6A(1) of the
DSPE Act was held to be invalid and violative of
Article 14 of the Constitution by a Constitution
Bench vide judgment dated 06.05.2014 in the
case of Subramanian Swamy (supra).
Paragraph 99 of the said report which makes
the above declaration is reproduced hereunder:
“99. In view of our foregoing discussion, we
hold that Section 6A(1), which requires
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 relates to: (a) the 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 Act, government
companies, societies and local authorities
owned or controlled by the Government, is
invalid and violative of Article 14 of
the Constitution. As a necessary
corollary, the provision contained in Section
26(c) of Act 45 of 2003 to that extent is also
declared invalid.”
Crl. Appeal No.377 of 2007 Page 5 of 106
3. What the Constitution Bench 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.
4. The appeal was taken up on a number of
occasions and argued from both sides. Relying
upon the judgments regarding retrospective or
prospective applicability of the said declaration,
the appellant-CBI would submit that once
Section 6A(1) has been declared to be violative
of Article 14, the judgment of the High Court
deserves to be set aside and the prosecution
should be allowed to continue with the
proceedings from the stage of rejection of
discharge application. On the other hand, the
respondent would submit that the judgment in
the case of Subramanian Swamy (supra) could
not have any retrospective operation and
therefore, no fault could be found with the
judgment of the High Court and the appeal
deserves to be dismissed.
Crl. Appeal No.377 of 2007 Page 6 of 106
5. At a particular stage, this Court felt that the
Union of India should be made a party and
should be heard. It accordingly suo moto issued
notices vide order dated 27.04.2012 and the
Union of India was required to file an affidavit.
The Union of India filed an affidavit dated
05.10.2012. However, the same was permitted
to be withdrawn by order dated 29.01.2013.
Thereafter, the Union of India filed another
affidavit in February, 2013. The matter was
thereafter taken up on 10.03.2016 when this
Court, after recording the submissions
advanced by the rival parties and considering
the importance of the question and also the fact
that the retrospectivity or prospectivity of the
judgment in the case of Subramanian Swamy
(supra) could only be dealt with by a
Constitution Bench, directed that the matter be
placed before the Chief Justice of India on the
administrative side for constituting an
appropriate Bench. Paragraph 7 of the order
dated 10.03.2016 framed the question for
determination and the same is reproduced
hereunder:
Crl. Appeal No.377 of 2007 Page 7 of 106
“7. The provisions of Section 6A(1),
extracted above, do indicate that for officers
of the level of Joint Secretary and above a
kind of immunity has been provided for.
Whether there can be a deprivation of
such immunity by a retrospective
operation of a judgment of the Court,
in the context of Article 20 of the
Constitution of India, is the moot
question that arises for determination
in the present case.”
6. As the order of reference also briefly deals with
the necessary facts and also the reasons for
referring the issue to the Constitution Bench, it
would be appropriate to reproduce the complete
order dated 10.03.2016. It reads as follows:
“1. A prosecution under the Prevention of
Corruption Act, 1988 was sought to be
questioned by the respondent accused on
the basis of the provisions contained in
Section 6A(1) of the Delhi Special Police
Establishment Act, 1946 which was
brought in by an amendment in the year
2003. Section 6A(1) of the Delhi Special
Police Establishment Act, 1946 is in the
following terms:
Crl. Appeal No.377 of 2007 Page 8 of 106
“6A. Approval of Central
Government to conduct inquiry or
investigation.-(1) The Delhi Special
Police Establishment shall not conduct
any inquiry or investigation into any
offence alleged to have been
committed under the Prevention of
Corruption Act, 1988 (49 of 1988)
except with the previous approval of
the Central Government where such
allegation relates to- (a) the 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
Act, Government companies, societies
and local authorities owned or
controlled by that Government.”
2. The Delhi High Court before whom the
challenge was brought answered the
question by holding that the respondent
accused was entitled to the benefit of the
said provision. Accordingly, the High Court
took the view that the matter required fresh
consideration for grant of previous approval
under Section 6A(1) of the Delhi Special
Police Establishment Act, 1946. Aggrieved,
the C.B.I. is in appeal before us.
3. We have heard the learned counsels for
the parties as also the respondent who
appears in person.
Crl. Appeal No.377 of 2007 Page 9 of 106
4. The provisions of Section 6A(1) of the
Delhi Special Police Establishment Act,
1946 has been held to be unconstitutional
being violative of Article 14 of the
Constitution of India by a Constitution
Bench of this Court in Subramanian
Swamy versus Director, Central Bureau of
Investigation and another [(2014) 8 SCC
682]. The judgment of the Constitution
Bench is however silent as to whether its
decision would operate prospectively or
would have retrospective effect. Though a
large number of precedents have been
cited at the Bar to persuade us to take
either of the above views, as would support
the case of the rival parties, we are of the
considered view that this question should
receive the consideration of a Constitution
Bench in view of the provisions of Article
145(3) of the Constitution of India.
5. In fact, in Transmission Corporation of
A.P. versus Ch. Prabhakar and others
[(2004) 5 SCC 551], the precise question
that has arisen before us had been referred
to a Constitution Bench. Paragraphs 15
and 21 dealing with the said question read
as follows:
Crl. Appeal No.377 of 2007 Page 10 of 106
“15. Whether constitutional
guarantee enshrined in clause (1) of
Article 20 is confined only to
prohibition against conviction for any
offence except for violation of law in
force at the time of commission of the
act charged as an offence and
subjection to a penalty greater than
that which might have been inflicted
under the law in force at the time of
commission of offence or it also
prohibits legislation which aggravates
the degree of crime or makes it
possible for him to receive the same
punishment under the new law as
could have been imposed under the
prior law or deprives the accused of
any substantial right or immunity
possessed at the time of the
commission of the offence charged is a
moot point to be debated.
(underlining is ours)
***
21. However, as the interpretation
of Article 20 as to its scope and ambit
is involved in these proceedings, we
refer the question formulated in para
15 of this order to a larger Bench for
consideration.”
However, the Constitution Bench in
Transmission Corporation of A.P. versus
Ch. Prabhakar and others [(2010) 15 SCC
200] declined to answer the question as in
the meantime there were certain
amendments to the statute in question and,
therefore, the issues referred were
understood to have become academic. The
very same issues have been cropped up
before us in the present proceedings.
Crl. Appeal No.377 of 2007 Page 11 of 106
6. We have considered it necessary to
make the present reference for the reason
that in the case of Transmission
Corporation of A.P. versus Ch. Prabhakar
and others [(2004) 5 SCC 551] one of the
questions referred is whether the scope and
ambit of Article 20 of the Constitution of
India is to be understood to be protecting
the substantial rights or the immunity
enjoyed by an accused at the time of
commission of the offence for which he has
been charged.
7. The provisions of Section 6A(1),
extracted above, do indicate that for officers
of the level of Joint Secretary and above a
kind of immunity has been provided for.
Whether there can be a deprivation of such
immunity by a retrospective operation of a
judgment of the Court, in the context of
Article 20 of the Constitution of India, is the
moot question that arises for determination
in the present case.
8. For the aforesaid reasons and having
regard to the provisions of Article 145(3) of
the Constitution of India, we refer the
aforesaid question to a larger bench for
which purpose the papers may now be laid
before the Hon'ble the Chief Justice of India
on the administrative side.”
7. In the above backdrop, the matter has been
placed before this Bench and has been heard at
length on the question referred.
SLP(Crl.) No.4364 of 2011
8. Leave granted.
Crl. Appeal No.377 of 2007 Page 12 of 106
9. This appeal has been filed by the appellant
assailing the correctness of the judgment and
order of the Bombay High Court passed in
Criminal Application No.1913 of 2010, titled
Manjit Singh Bali vs. Central Bureau of
Investigation dated 29.11.2010. By the above
order, the Bombay High Court dismissed the
petition praying for quashing of the FIR
registered by CBI against the petitioner therein
under Sections 7 and 8 of the PC Act, 1988. In
this case, an FIR was registered on 18.02.2010
based on a complaint dated 16.02.2010. A raid
was conducted on 24.02.2010, during which the
petitioner therein was arrested and cash was
recovered from his car. In this case also the
issue is as to whether in the facts of the said
case, Section 6A(1) of DSPE Act would be
applicable or Section 6A(2) thereof would be
applicable.
ARGUMENTS:
A. For CBI:
Crl. Appeal No.377 of 2007 Page 13 of 106
10. Shri Tushar Mehta, learned Solicitor General
appearing for the appellant-CBI in Criminal
Appeal No.377 of 2007 made detailed
submissions which are briefly summarized
hereunder:
10.1. Section 6A of the DSPE Act is a mere
procedural provision and not a penal provision
as such would not attract Article 20(1) of the
Constitution. Article 20 of the Constitution
applies only to those provisions of law in force,
violation of which results in conviction and
resultantly awarding sentence. Procedural
issues like statutory protection during trial, a
provision providing for a particular Court to try
the offence would not have any bearing while
invoking Article 20 of the Constitution.
Crl. Appeal No.377 of 2007 Page 14 of 106
10.2. Article 20 of the Constitution would have no
applicability in determining whether the
declaration made in the case of Subramanian
Swamy (supra) would be prospective or
retrospective. The protection provided under
Article 20 of the Constitution against ex post
facto law extends and confines only to conviction
and sentence and would have no relevance for
procedural aspects and also would not have any
applicability to the powers exercised during the
course of the investigation. He enlisted the
following aspects in this respect:
(a) Article 20 is limited in application
wherein distinct offences are created
subsequently;
(b) The other aspect of Article 20 is
debarring infliction of greater penalty,
post commission of the offence;
(c) Section 6A did not decriminalise
PC Act offences and removal of the
said provision, therefore, does not
create a new offence;
Crl. Appeal No.377 of 2007 Page 15 of 106
(d) Section 6A did not provide any
blanket immunity against anticorruption
laws and therefore,
removal of the same does not create a
new offence;
(e) Section 6A did not create any
vested right which can be said to be
covered by Article 20;
(f) Declaration of Section 6A as
invalid and unconstitutional is
through a judicial order and not a
legislative measure.;
10.3. Reliance is placed upon the following
judgments in support of the above propositions:
(1) Rao Shiv Bahadur Singh and
another Vs. State of Vindhya
Pradesh5;
(2) State of West Bengal Vs. S.K.
Ghosh6;
(3) Sajjan Singh Vs. The State of
Punjab7;
(4) Rattan Lal Vs. State of Punjab8;
5 (1953) SCR 1188
6 (1963) 2 SCR 111
7 (1964) 4 SCR 630
8 (1964) 7 SCR 676
Crl. Appeal No.377 of 2007 Page 16 of 106
(5) Union of India Vs. Sukumar
Pyne9;
(6) G.P. Nayyar Vs. State (Delhi
Administration)10;
(7) Soni Devrajbhai Babubhai Vs.
State of Gujarat and Others11;
(8) Securities and Exchange Board of
India Vs. Ajay Agarwal12;
10.4.Referring to Section 6A of the DSPE Act, it was
submitted that the same is not a penal
provision and it does not create a new offence
nor does it increase the punishment for an
existing offence, which existed on the date of the
commission of offence.
9 (1966) 2 SCR 34
10 (1979) 2 SCC 593
11 (1991) 4 SCC 298
12 (2010) 3 SCC 765
Crl. Appeal No.377 of 2007 Page 17 of 106
10.5. Prior to insertion of Section 6A in the DSPE
Act, similar provision was existing in Single
Directive No.4.7(3) requiring prior sanction to
investigation. This Court in the case of Vineet
Narain and Others Vs. Union of India and
Another13, amongst other larger issues was also
testing the validity of the Single Directive
No.4.7(3). This Court held in the said case that
by administrative instructions the statutory
powers could not be intermeddled or impeded. It
accordingly declared Single Directive No.4.7(3)(i)
as invalid.
10.6.As a result of such declaration Section 6A was
introduced in the DSPE Act in the year 2003
vide Section 26(c) of the Central Vigilance
Commission Act, 2003 w.e.f. 11.09.2003.
13 (1998) 1 SCC 226
Crl. Appeal No.377 of 2007 Page 18 of 106
10.7. Section 6A of the DSPE Act, undeniably does
not create a new offence nor does it obliterate
the offence. The Constitution Bench in
Subramanian Swamy's case (supra) noted that
the classification made in Section 6A neither
eliminates public mischief nor achieves some
positive public good and, therefore, the
classification was held to be discriminatory and
violative of Article 14 of the Constitution as it
side-tracks the fundamental objects of the PC
Act, 1988 to deal with corruption.
10.8. Shri Mehta commenting upon Section 6A of
the DSPE Act enlisted the following short
conclusions:
(a) It is not a provision creating an offence or
providing immunity from an offence under
which anyone can be punished;
(b) The said provision did not exempt applicability of
anti-corruption laws to officers above the rank
of Joint Secretary;
(c) It was a mere executive safety mechanism; It was
a mere initial protective net of a particular kind
which this Hon'ble Court declared as
unconstitutional;
Crl. Appeal No.377 of 2007 Page 19 of 106
(d) The said provision did not seek to create
individual rights or immunities rather was, as
was the submission of the Union of India in
Subramanian Swamy (supra), a provision
which was aimed at protecting bona fide actions
for ensuring honest decisions/advice in
governmental functioning.
(e) It was not aimed as an immunity or substantive
exclusion from application of laws, rather was a
preliminary check provided in order to ensure
honest officials are not unnecessarily harassed.
(f) It cannot be termed as a substantive procedural
provision nor is it a substantive penal provision.
(g) At best, Section 6A of the DSPE Act was purely
technical, procedural precondition, which was
preliminary in nature and was to be exercised
prior to the stage of investigation.
Crl. Appeal No.377 of 2007 Page 20 of 106
10.9. It is settled proposition that declaration of
unconstitutionality renders a law to be non est,
void ab initio or unenforceable, as the case may
be, subject to the legislature to cure the basis of
the said unconstitutionality. Reliance was
placed upon the following judgments of this
Court in his context:
(1) Keshavan Madhava Menon Vs.
The State of Bombay14;
(2) Behram Khurshed Pesikaka Vs.
The State of Bombay15;
(3) M.P.V. Sundararamier and Co.
Vs. The State of Andhra Pradesh &
Another16;
(4) Deep Chand Vs. The State of
Uttar Pradesh and Others17;
(5) Mahendra Lal Jaini Vs. The
State of Uttar Pradesh and
Others18;
(6) Municipal Committee, Amritsar
14 1951 SCR 228
15 (1955) 1 SCR 613
16 1958 SCR 1422
17 1959 SCR Suppl. (2) 8
18 AIR 1963 SC 1019
Crl. Appeal No.377 of 2007 Page 21 of 106
and others Vs. State of Punjab and
Others19;
(7) The State of Manipur & Ors. Vs.
Surjakumar Okram & Ors.20;
10.10. The common opinion culled out from the
various opinions rendered in the above
judgments is that such declaration makes the
law unenforceable and such unenforceability
relates back. It was, thus, submitted that
judgment in the case of Subramanian Swamy
(supra) relates back to the point when Section
6A was inserted in the DSPE Act.
19 (1969) 1 SCC 475
20 2022 SCC Online SC 130
Crl. Appeal No.377 of 2007 Page 22 of 106
10.11. Further submission is that a decision of this
Court enunciating a principle of law is
applicable to all cases irrespective of its stage of
pendency as it is assumed that what is
enunciated by this Court is in fact the law from
inception. There can be no prospective
overruling unless expressly indicated in clear
and positive terms. If the Constitution Bench in
the case of Subramanian Swamy (supra) had
any intentions of declaring that the same would
be prospective in application, then the same
should have been specifically and discretely
stated therein. In absence of such declaration,
the natural assumption is that the same is
retrospective applying the Blackstonian theory
of precedence.
Crl. Appeal No.377 of 2007 Page 23 of 106
10.12. Reference was made by Shri Mehta to the
cases of I.C. Golaknath & Ors. Vs. State of
Punjab and Anr.21 and Managing Director,
ECIL, Hyderabad and Others Vs. B.
Karunakar and Others22 for the proposition
that prospective overruling is to be exercised as
an exception in rare circumstances and such
power should be seldom exercised. He has
further placed reliance upon a judgment of this
Court in the case of M.A. Murthy Vs. State of
Karnataka and others23 for the proposition that
if prospective overruling is not specifically
provided in the decision, it would not be open
for Courts in future to declare such a decision
to be prospective in nature. If prospective
applicability of a decision is not provided in the
said decision, then it is presumed that it will
have retrospective effect and declaration of any
law as invalid would be unenforceable and nonexistent
from the statute book from the time of
its inception. The judgment in the case of
Subramanian Swamy (supra) would, therefore,
21 (1967) 2 SCR 762
22 (1993) 4 SCC 727
23 (2003) 7 SCC 517
Crl. Appeal No.377 of 2007 Page 24 of 106
operate retrospectively and at least would be
unenforceable ab initio.
10.13. The next submission is that the judgment in
the case of Transmission Corporation of A.P.
Vs. C.H. Prabhakar and Others24 would also
not be of any help to the respondent as under
the American position of protection against 'ex
post facto' laws, removal of a provision similar to
Section 6A of the DSPE Act would not be hit.
Reference is made to the following judgments:
(1) Hopt Vs. People of the
Territory of Utah25;
(2) Duncan Vs. State26;
24 (2004) 5 SCC 551
25 110 US 574 (1884)
26 152 US 377 (1894)
Crl. Appeal No.377 of 2007 Page 25 of 106
(3) Gibson Vs. Mississippi27;
(4) Thompson Vs. State of
Missouri28; 171 US 380 (1898)
(5) John Mallett Vs. State of
North Carolina29;
(6) John Rooney Vs. State of
North Dakota30;
(7) Beazell Vs. State of Ohio
Chatfield31;
(8) Dobbert Vs. Florida32;
(9) Smith et al Vs. Doe et al33;
B: For Union of India:
11. Shri S.V. Raju, learned Additional Solicitor
General of India made submissions on behalf of
the Union of India. His submissions are briefly
summarized as follows:
27 162 US 565 (1896)
28 171 US 380 (1898)
29 181 US 589 (1901)
30 196 US 319 (1905)
31 269 US 167 (1925)
32 432 US 282 (1977)
33 538 US 84 (2003)
Crl. Appeal No.377 of 2007 Page 26 of 106
11.1.Merely because the Court takes time to decide
the matter or merely because the challenge to
statutory provisions is made subsequently, it
would not make an unconstitutional statutory
provision legal or constitutional even if such
provision has operated for some time till it is
struck down by the Court. Such a violation is
void ab initio, as settled by a large number of
decisions of this Court. It is only rarely that in
some cases in order to obviate the hardships
and on equitable grounds, this Court had
protected an action taken under an
unconstitutional statute. However, that does not
mean that the statute was not unconstitutional
or bad during the period it was on the statute
book.
Crl. Appeal No.377 of 2007 Page 27 of 106
11.2.Prohibition under Section 6A of the DSPE Act
is against conducting any enquiry or
investigation. Referring to the definition of
“enquiry” in Section 2(g) of the Code of Criminal
Procedure, 197334, it was submitted that the
enquiry commences after charge-sheet is filed
and is a forerunner to the trial. Reliance was
placed upon the case of Hardeep Singh Vs.
State of Punjab35,in particular, reference has
been made to paragraphs 27, 29 and 39 of the
report.
11.3.Further referring to the definition of the word
“investigation” in Section 2(h) of Cr.P.C., it was
submitted that the prohibition contained in
Section 6A of the DSPE Act relates to the
prohibition from collecting evidence in an
enquiry or during the investigation.
34 In short ‘Cr.P.C.’
35 (2014) 3 SCC 92
Crl. Appeal No.377 of 2007 Page 28 of 106
11.4.Referring to the case of Subramanian Swamy
(supra) it is submitted that there could be two
situations prior to the judgment in the aforesaid
case i.e. prior to May, 2014; (i) where evidence is
already gathered as part of investigation or (ii)
where evidence is not gathered because of the
prohibition contained in Section 6A of the DSPE
Act. Placing reliance upon a judgment of this
Court in H.N. Rishbud and Inder Singh Vs.
The State of Delhi36, wherein, while answering
the first question, this Court held that the
prohibition contained in Section 5(4) of the
Prevention of Corruption Act, 194737 was
mandatory in nature whereas while answering
the second question, this Court held that trial
following an investigation conducted in violation
of Section 5(4) of the PC Act, 1947 would not be
illegal. It was submitted that where a Magistrate
has already taken cognizance upon an
investigation, conducted without the approval
under Section 6A of the DSPE Act, the Court
can act on evidence collected during such
investigation and the proceedings would not be
vitiated in the absence of any prejudice both
36 (1955) 1 SCR 1150
37 In short, “PC Act, 1947”
Crl. Appeal No.377 of 2007 Page 29 of 106
actual and pleaded with respect to such
evidence. Reference has been made to the
following judgments:
(i) Fertico Marketing and
Investment Private Limited and
Others Vs. Central Bureau of
Investigation and Another38;
(ii) Rattiram and Others Vs. State
of Madhya Pradesh39 ;
(iii) State of Karnataka Vs.
Kuppuswamy Gownder and
Others40;
38 (2021) 2 SCC 525
39 (2013) 12 SCC 316
40 AIR 1987 SC 1354
Crl. Appeal No.377 of 2007 Page 30 of 106
11.5.It is further submitted that where investigation
was not conducted and where the Magistrate
has not taken cognizance, the Investigating
Agency can conduct further investigation and
collect evidence which earlier it was not able to
do due to the bar of Section 6A of the DSPE Act.
However, such further investigation would be
subject to Section 17(A) of the PC Act, 1988. It
was, thus, submitted that after judgment in the
case of Subramanian Swamy (supra), the
prohibition contained in Section 6A of the DSPE
Act having seized the CBI could investigate the
matter subject to Section 17(A) of the PC Act,
1988 wherever applicable. There would be no
requirement to obtain approval under Section
6A of the DSPE Act.
Crl. Appeal No.377 of 2007 Page 31 of 106
11.6.The provisions under Section 6A of the DSPE
Act do not confer any immunity from
prosecution. Assuming that Section 6A of the
DSPE Act was in operation prior to the
judgment in the case of Subramanian Swamy
(supra), it could not bar investigation by an
Agency other than those covered by the DSPE
Act. Reference was made to the judgment of this
Court in the case of A.C. Sharma Vs. Delhi
Administration41. Further submission is that a
trial on the basis of a private complaint relating
to corruption cases would be maintainable and
there would be no immunity in such cases by
virtue of Section 6A of the DSPE Act.
11.7.It was next submitted that Article 20(1) of the
Constitution would have no application in this
case as investigation is only part of the
procedure for collecting evidence and it neither
amounts to conviction nor to sentence. Reliance
was placed upon a judgment of this Court in the
case of Rao Shiv Bahadur Singh (supra).
C: Dr. R.R. Kishore – respondent in person in
Crl.A.No.377 of 2007:
41 (1973) 1 SCC 726
Crl. Appeal No.377 of 2007 Page 32 of 106
12. The respondent, Dr. R.R. Kishore has
throughout represented himself in person and
has argued the matter at length before us. His
submissions are summarized hereunder:
Crl. Appeal No.377 of 2007 Page 33 of 106
12.1. At the outset, it was submitted that CBI is
contesting this case against the stand of the
Union of India. Initially Union of India was not a
party to the proceedings, however, pursuant to
an order dated 27.04.2012 passed in this
appeal, the Union of India was made a party by
the Court suo moto. The affidavit filed by Union
of India, served upon the respondent on
25.02.2013 and which is part of the record,
categorically stated that CBI does not have
jurisdiction to initiate investigation against the
respondent without prior approval of the
Central Government. It further stated that the
view taken by the learned Single Judge of the
Delhi High Court in the impugned order dated
05.10.2006 is correct and effectively captures
the purpose of enactment of a provision. It
further took stand in paragraph 23 that purport
of Section 6A of the DSPE Act is to accord
meaningful protection to the persons imbued
with decision making powers from frivolous or
motivated investigation by providing a screening
mechanism. Reference was also made to the
directions issued by this Court in the case of
Vineet Narain (supra) to the effect that Central
Crl. Appeal No.377 of 2007 Page 34 of 106
Government shall remain answerable for the
CBI’s functioning and shall further take all
measures necessary to ensure that CBI
functions effectively, efficiently and is viewed as
a non-partisan agency. On such submissions, it
is the case of the respondent that nothing
survives in this appeal filed by the CBI and the
same deserves to be dismissed.
12.2. It was next submitted that CBI had not only
violated Section 6A of the DSPE Act but had
also violated Section 6 of the said Act and also
Sections 17 and 18 of the PC Act, 1988. Even
though the FIR was registered only under
Section 7 of the PC Act, 1988 against the
respondent alone, but still the CBI conducted
investigation regarding possessing assets
disproportionate to known sources of income
not only against the respondent but also his
wife, who was working as an employee of the
State of U.P.
Crl. Appeal No.377 of 2007 Page 35 of 106
12.3.Referring to the facts of the case, it was stated
that the case was registered under Section 7 of
the PC Act on 16.12.2004, the High Court
delivered the judgment impugned in the appeal
on 05.10.2006, the petition was preferred by the
CBI in January, 2007, leave was granted
thereafter and notice was issued to the Union of
India on 27.04.2012. The affidavit was filed by
the Union of India in February, 2013. The
provisions of Section 6A of the DSPE Act was
continuing on the statute book till 06.05.2014
when the judgment in the case of Subramanian
Swamy (supra) was delivered. On the basis of
above facts, it was submitted that the appeal
was liable to be dismissed as being meritless.
12.4. It was next submitted that at the time when
the appeal is being heard, there is already in
existence a similar provision protecting the
interest of the respondent by way of Section
17(A) of the PC Act, 1988.
Crl. Appeal No.377 of 2007 Page 36 of 106
12.5.An argument relating to discrimination has
also been raised by the respondent to the effect
that in case if the contention of the appellant is
accepted, the respondent would be
discriminated from those set of government
servants who have availed the protection of
Section 6A of the DSPE Act and the proceedings
against them have come to a closure in cases
where the competent authority declined to grant
sanction and also to another set of cases where
the Courts have quashed the proceedings in the
absence of sanction under Section 6A of the
DSPE Act.
12.6.The next argument relates to Section 6 of the
General Causes Act, 189742 dealing with effect of
Repeal in view of its applicability under Article
367 of the Constitution.
12.7. It is also submitted that where a law has been
in force for a long time and is subsequently
repealed, the same would not affect the rights
which had accrued during the existence of such
law.
42 In short ‘the Act, 1897’
Crl. Appeal No.377 of 2007 Page 37 of 106
12.8. It is also his submission that if, while
declaring the statute to be invalid, the Court
does not expressly incorporate for its
retrospective application, it shall be deemed to
apply prospectively. Reliance was placed upon
the following judgments:
(1) Keshavan Madhava Menon
(supra);
(2) Ashok Kumar Gupta and
Another Vs. State of U.P. and
others43;
(3) Kaiser Aluminium and
Chemical Corporation Vs.
Bonjorno44;
(4) Assistant Excise Commissioner,
Kottayam and Others Vs.
Esthappan Cherian and another45
43 (1997) 5 SCC 201
44 494 US 827 (1990)
45 Civil Appeal No.5815 of 2009 by Supreme Court of India vide order dated 06.09.2021
Crl. Appeal No.377 of 2007 Page 38 of 106
12.9. It was next submitted that appeal of the CBI
has been filed primarily on two grounds; that
Section 6A(1) of the DSPE Act is not mandatory;
and that Section 6A(2) would apply. He also
submitted that no ground has been taken that
Section 6A(1) is unconstitutional or invalid, as
such, CBI cannot argue this point.
12.10. Lastly, it is submitted that not only Article
20, but also Article 21 of the Constitution,
should be read in favour of the respondent and
also in favour of the law existing at the time
when the offence is said to have taken place,
benefit should be extended of any protection
available at that time.
D: Shri Arvind Datar, Senior Advocate for
appellant-Manjit Singh Bali in Crl.Appeal @ SLP
(Crl.) No. 4364 of 2011:
13. Shri Arvind Datar, learned Senior Counsel
appearing for the appellant-Manjit Singh Bali in
Criminal Appeal arising out of SLP (Crl.)
No.4364 of 2011 made the following
submissions:
Crl. Appeal No.377 of 2007 Page 39 of 106
13.1. After referring to the question referred to the
Constitution Bench, Shri Datar, learned Senior
Advocate submitted that following three
corollary questions also arise for consideration
namely:
(i) Whether declaration of a law being violative of
Article 14 or any other Article contained in Part-
III is void ab initio under Article 13(2)?
(ii) What is the effect of such a judgment on actions
taken or omitted to be taken during the period
when the law remained operational? and
(iii) Whether there is a difference between: (I) a law
held as unconstitutional for lack of legislative
competence; and (II) a law held to be
unconstitutional for violation of Part-III or other
constitutional limitations?
Crl. Appeal No.377 of 2007 Page 40 of 106
13.2. Referring to Article 20(1) of the Constitution
vis-a-vis deprivation of immunity retrospectively
and analysing the said constitutional provision,
it is submitted that a conviction of an accused
can take place by following the prescribed
procedure starting from enquiry, investigation,
trial etc. According to him, if the first stages of
enquiry, investigation are not permitted unless
there is a specified prior approval as there is
immunity from prosecution, no conviction can
take place. According to him, this immunity
referring to Section 6A of the DSPE Act, is
entitled to protection under Article 20(1) of the
Constitution. According to him, the marginal
note refers to protection in respect of conviction
and the phrase ‘in respect of’ must be
interpreted to grant protection to all the existing
procedural safeguards at the time when the
offence was alleged to be committed. Reliance
was placed upon a judgment of this Court in the
case of Prabhu Dayal Deorah Vs. District
Magistrate46.
46 (1994) 1 SCC 103
Crl. Appeal No.377 of 2007 Page 41 of 106
13.3. 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.
13.4.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.
13.5 It was next submitted that a law which has
been declared to be unconstitutional could only
mean that such law becomes inoperative or
ineffective, once declared and not before that.
The submission is that a law declared
unconstitutional cannot be treated as void ab
initio for the following reasons:
Crl. Appeal No.377 of 2007 Page 42 of 106
(a) As there is a presumption of
constitutionality till a law is declared
to contravene the provisions of Part-
III or other constitutional limitations,
it remains valid;
(b) The expression "to the extent of
contravention" implies that there has
to be a judicial declaration of
contravention and the extent thereof.
Till such declaration is made, no law
can be treated as void;
(c) If there is no interim stay, the law
has to be implemented and all
actions taken pending final hearing
will not become unlawful;
(d) The word "void" is used 14 times
in the Constitution. The use of the
word "void" in the context of the
Constitution, unlike the Contract Act,
only means that a judicial declaration
renders a law inoperative or
unenforceable;
(e) The Oxford Dictionary defines the
word "void" in two ways:
Crl. Appeal No.377 of 2007 Page 43 of 106
(i) As an adjective, it means that
‘something is not valid or legally
binding’; and
(ii) As a verb, it means ‘to declare
that (something) is not valid or
legally binding’.
(f) A combined reading of Articles
249-251 read with Article 254 of the
Constitution shows that the word
"void" basically means ‘invalid’ or
‘inoperative’;
(g) The word "void" does not mean
"repeal"; a judgment does not amend
or alter the statue. It remains in the
statute-book but cannot be given
effect to.
(h) Part-III includes not only express
fundamental rights but several
derivative rights. Therefore, it will be
incorrect to treat an unconstitutional
law as void ab initio.
Crl. Appeal No.377 of 2007 Page 44 of 106
13.6.The next submission is that an administrative
act, unless declared invalid, will continue to
have legal effect and actions taken before the
law was declared invalid would still remain
protected.
13.7. A large number of judgments have been
referred for the proposition that declaration of
invalidity and consequences that follow are two
different aspects and this Court has repeatedly
granted relief by protecting the actions taken
during pendency of the litigation.
13.8. It is also submitted that a law declared as
invalid either on the ground of lack of legislative
competence or for violating Part-III of the
Constitution or other constitutional limitations
would have the same effect. No distinction can
be drawn in either of the cases.
Crl. Appeal No.377 of 2007 Page 45 of 106
13.9. It was next submitted that protection from
prosecution has continued from 1969 as it was
deemed necessary to ensure proper
administrative function by Government officials
except for brief periods when this Court had
struck down the validity of the relevant clause of
the Single Directive in the case of Vineet Narain
(supra) and, thereafter, Section 6A of the DSPE
Act in the case of Subramanian Swamy (supra).
Continuously, the legislature has been
incorporating provisions in different statutes to
continue to extend such protection to
Government officials from unnecessary and
frivolous criminal prosecutions.
13.10. It was lastly submitted that the doctrines of
prospective overruling and the Blackstonian
theory do not apply in the present case as no
previous decision has been overruled. This is a
case of declaring a law as unconstitutional
being violative of Part-III of the Constitution.
13.11. In the facts and circumstances, it was
submitted that the appeal of Manjit Singh Bali
deserves to be allowed.
Crl. Appeal No.377 of 2007 Page 46 of 106
13.12. Shri Amit Desai, learned Senior Counsel also
appearing for the same party made a few
submissions. He placed reliance upon two
judgments of this Court, namely (i) Mohan Lal
Vs. State of Punjab47 and, (ii) Varinder Kumar
Vs. State of Himachal Pradesh48.
47 (2018) 17 SCC 627
48 (2020) 3 SCC 321
Crl. Appeal No.377 of 2007 Page 47 of 106
14. Having considered the submissions advanced
on behalf of the parties, the following questions
require consideration:
(i) Whether Section 6A of the DSPE Act is part of
procedure or it introduces a conviction or
sentence?
(ii) Whether Article 20(1) of the Constitution will
have any bearing or relevance in the context of
declaration of Section 6A of the DSPE Act as
unconstitutional?
(iii) 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 apply prospectively from the date
of its declaration as unconstitutional?
Crl. Appeal No.377 of 2007 Page 48 of 106
15. At the outset, it may be noted that during the
course of arguments, it was made clear to the
counsels that this Bench would be answering
the specific question referred to it and would not
be enlarging the scope of the reference made.
Although learned counsels and the party in
person were allowed to make their submissions
and were not checked during the course of the
arguments from raising points beyond the scope
of the reference in order to enlarge its scope,
that would not mean that the Court would deal
with all such submissions. It was also made
clear that the Bench would not be dealing with
the merits of the individual cases and post
answering the questions, the matters would be
reverted to the regular Bench assigned of such
jurisdictions for hearing and disposal.
16. Before commencing to analyse the respective
arguments and legal position on the questions
so framed, a brief narration of the history of
obtaining sanction before launching prosecution
may be referred to.
Crl. Appeal No.377 of 2007 Page 49 of 106
16.1. In 1969, the Central Government issued
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. Directive No.4.7(3) contained
instructions regarding 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 &
Nationalized Banks above a certain level. The
same reads as follows:
"4.7(3)(i) In regard to any person who is or
has been a decision making level officer
(Joint Secretary or equivalent of above in
the Central government or such officers as
are or have been on deputation to a Public
Sector Undertaking; officers of the Reserve
Bank of India of the level equivalent to
Joint Secretary of above in the Central
Government, Executive Directors and above
of the SEBI and Chairman & Managing
Director and Executive Directors and such
of the Bank officers who are one level
below the Board of Nationalised Banks),
there should be prior sanction of the
Secretary of the Ministry/Department
concerned before SPE takes up any enquiry
(PE or RC), including ordering search in
respect of them. Without such sanction, no
enquiry shall be initiated by the SPE.
Crl. Appeal No.377 of 2007 Page 50 of 106
(ii) All cases referred to the Administrative
Ministries/Departments by CBI for
obtaining necessary prior sanction as
aforesaid, except those pertaining to any
officer of the rank of Secretary or Principal
Secretary, should be disposed of by them
preferably within a period of two months of
the receipt of such a reference. In respect of
the officers of the rank of Secretary or
Principal Secretary to Government, such
references should be made by the Director,
CBI to the Cabinet Secretary for
consideration of a Committee consisting of
the Cabinet Secretary as its Chairman and
the Law Secretary and the Secretary
(Personnel) as its members. The Committee
should dispose of all such references
preferably within two months from the date
of receipt of such a reference by the Cabinet
Secretary.
(iii) When there is any difference of opinion
between the Director, CBI and the
Secretary of the Administrative
Ministry/Department in respect of an
officer up to the rank of Additional
Secretary or equivalent, the matters shall
be referred by CBI to Secretary (Personnel)
for placement before the Committee referred
to in Clause (ii) above. Such a matter
should be considered and disposed of by
the Committee preferably within two
months from the date of receipt of such a
reference by Secretary (Personnel).
(iv) In regard to any person who is or has
been Cabinet Secretary, before SPE takes
any step of the kind mentioned in (i) above
the case should be submitted to the Prime
Minister for orders."
The validity of the above Single Directive
No.4.7(3) was considered in the case of Vineet
Narain (supra).
Crl. Appeal No.377 of 2007 Page 51 of 106
16.2.After considering the material placed on
record, the three Judge Bench in the case of
Vineet Narain (supra) came to the conclusion
that such directive could not be held to be valid
and, accordingly, struck it down. The judgment
in the case of Vineet Narain (supra) was
delivered on 18.12.1997.
16.3.The requirement of sanction similar to Single
Directive No.4.7(3) was introduced by way of an
Ordinance w.e.f. 25.08.1998 and the same
lasted till 27.10.1998 when it lapsed. Thereafter,
in 2003, Section 6A, akin to Single Directive
No.4.7(3), was inserted in the DSPE Act w.e.f.
11.09.2003 vide Section 26(c) of Central
Vigilance Commission Act, 2003 (Act No. 45 of
2003)49. The said provision is reproduced
hereunder:
“Section 6A of the DSPE Act
6A. Approval of Central Government to
conduct inquiry or investigation.-
49 In short, “Act No. 45 of 2003”
Crl. Appeal No.377 of 2007 Page 52 of 106
(1) The Delhi Special Police Establishment
shall not conduct any inquiry or
investigation into any offence alleged to
have been committed under the Prevention
of Corruption Act, 1988 (49 of 1988) except
with the previous approval of the Central
Government where such allegation relates
to-
(a) the 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 Act,
Government companies, societies and local
authorities owned or controlled by that
Government.
(2) Notwithstanding anything contained in
sub-section (1), no such approval shall be
necessary for cases involving arrest of a
person on the spot on the charge of
accepting or attempting to accept any
gratification other than legal remuneration
referred to in clause (c) of the Explanation
to section 7 of the Prevention of Corruption
Act, 1988 (49 of 1988).]”
17. This Section remained on the statute book for a
period of more than ten years till the judgment
in the case of Subramanian Swamy (supra) was
delivered on 06.05.2014, which held it to be
unconstitutional as being violative of Article 14
of Part-III of the Constitution.
Crl. Appeal No.377 of 2007 Page 53 of 106
18. The Parliament again inserted Section 17A in
the PC Act, 1988 w.e.f. 26.07.2018. This
provision has continued to remain in the statute
book. It also provided for sanction before
prosecution but without any classification of
Government servants. All Government servants
of whatever category, class, or level, are provided
protection under Section 17A of the PC Act,
1988. The said provision is reproduced
hereunder:
17A. Enquiry or Inquiry or investigation of
offences relatable to recommendations
made or decision taken by public servant
in discharge of official functions or duties.--
No police officer shall conduct any enquiry
or inquiry or investigation into any offence
alleged to have been committed by a public
servant under this Act, where the alleged
offence is relatable to any recommendation
made or decision taken by such public
servant in discharge of his official
functions or duties, without the previous
approval--
(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
that 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
that Government;
Crl. Appeal No.377 of 2007 Page 54 of 106
(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:
Provided that no such approval shall be
necessary for cases involving 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:
Provided further that the concerned
authority shall convey its decision under
this section within a period of three
months, which may, for reasons to be
recorded in writing by such authority, be
extended by a further period of one month.
19. From the above, we notice that there are small
windows of couple of years on two occasions
when there was no such protection available,
otherwise, right from 1969 the protection
regarding sanction before prosecution has
remained in force and continues as such even
now.
Article 20(1) of the Constitution and its
applicability in the context of Section 6A of the
DSPE Act (Question No.:1 & 2).
Crl. Appeal No.377 of 2007 Page 55 of 106
20. The Constitution Bench in the case of
Subramanian Swamy (supra) was testing
constitutional validity of Section 6A of DSPE
Act. Section 6A has two sub-Sections (1) and
(2). Sub-Section (1) provides of a protection from
any enquiry or investigation into any offence
under the PC Act, 1988 without the previous
approval of the Central Government where the
allegation relates to employees of the Central
Government of the level of Joint Secretary and
above (Clause a) and also 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. Sub-Section (2) begins with a nonobstante
clause stating that no such approval
would be necessary for cases involving arrest of
a person on the spot on the charge of accepting
or attempting to accept any gratification other
than legal remuneration referred to in clause (c)
of the Explanation to Section 7 of the PC Act,
1988. Sub-Section (2) takes away the protection
to the Government servant of the category
defined in sub-Section (1) where arrest of a
Crl. Appeal No.377 of 2007 Page 56 of 106
person is to be made on the spot on the charge
of accepting or attempting to accept any
gratification.
21. The Constitution Bench held that Section 6A(1)
which required approval of the Central
Government to conduct any enquiry or
investigation into any offence alleged to have
been committed under the PC Act, 1988 to be
invalid and unconstitutional and in violation of
Article 14 of the Constitution. As a necessary
corollary, it was further declared that the
provision contained in Section 26(c) of Act No.
45 of 2003 introducing the above provision was
also invalid.
22. The reference order dated 10.03.2016 required
the retrospective application of the declaration
by the Constitution Bench in Subramanian
Swamy (supra) to be determined in the context
of Article 20 of the Constitution. It would,
therefore, be necessary to briefly discuss the
scope of Article 20 and whether or not it would
have any applicability in the context of Section
6A of the DSPE Act.
Crl. Appeal No.377 of 2007 Page 57 of 106
23. Before proceeding to do that, it would be
appropriate to examine whether Section 6A of
the DSPE Act providing protection to certain
categories of Government servants would, in any
manner, amount to a conviction or sentence or
it would be a purely procedural aspect. Section
6A of the DSPE Act does not lay down or
introduce any conviction for any offence. It is a
procedural safeguard only which is enumerated
in Section 6A of the DSPE Act 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 an offence.
Crl. Appeal No.377 of 2007 Page 58 of 106
24. There is no attempt on the part of the
respondent or by Mr. Datar to canvass that
Section 6A of the DSPE Act is not part of
procedural law and that it in any manner
introduces any conviction or enhances any
sentence post the commission of offence. It is,
therefore, held that 6A of the DSPE Act is a
part of the procedure only in the form of a
protection to senior government servants. It
does not introduce any new offence nor it
enhances the punishment or sentence.
25. It would be useful to reproduce Article 20 of the
Constitution at this stage itself for its proper
analysis and appreciation of the arguments of
the respective counsels. It reads as follows:
“20. Protection in respect of conviction for offences.
(1) 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
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.
(2) No person shall be prosecuted and
punished for the same offence more than
once.
Crl. Appeal No.377 of 2007 Page 59 of 106
(3) No person accused of any offence shall
be compelled to be a witness against
himself.”
26. In the present case we are only concerned with
sub-article (1) to Article 20 of the Constitution.
Hence, we need not examine sub-article (2) and
(3).
Crl. Appeal No.377 of 2007 Page 60 of 106
27. Sub-article (1) of Article 20 of the Constitution
consists of two parts. The first part prohibits
any law that prescribes judicial punishment for
violation of law with retrospective effect. Subarticle
(1) to Article 20 of the Constitution does
not apply to civil liability, as distinguished from
punishment for a criminal offence. Further,
what is prohibited is conviction or sentence for
any offence under an ex post facto law, albeit the
trial itself is not prohibited. Trial under a
procedure different from the one when at the
time of commission of an offence, or by a court
different from the time when the offence was
committed is not unconstitutional on account of
violation of sub-article (1) to Article 20 of the
Constitution. It may be different, if the
procedure or the trial is challengeable on
account of discrimination under Article 14 of
the Constitution or violation of any other
fundamental right.
Crl. Appeal No.377 of 2007 Page 61 of 106
28. The right under first part of sub-article (1) to
Article 20 of the Constitution is a very valuable
right, which must be safeguarded and protected
by the courts as it is a constitutional mandate.
The Constitution bench of this Court in Rao
Shiv Bahadur Singh v. State of Vindhya
Pradesh50, highlighted the principle underlying
the prohibition by relying upon judgment of
Willes, J. in Phillips v. Eyre51 and of the United
States Supreme Court in Calder v. Bull52, to
hold that it would be highly unjust, unfair and
in violation of human rights to punish a person
under the ex post facto law for acts or omissions
that were not an offence when committed. In the
English system of jurisprudence, in the absence
of a written Constitution, the repugnance of
such laws is justified on universal notions of
fairness and justice, not on the ground of
invalidating the law itself, but as compelling the
beneficial construction thereof where the
language of the statute by any means permits it.
Under the American law, ex post facto laws are
50 (1953) 2 SCC 111
51 (1870) LR 6 QB 1 at pp. 23 and 25
52 1 L Ed 648 at p. 649 : 3 US (3 Dall) 386 (1798)
Crl. Appeal No.377 of 2007 Page 62 of 106
rendered invalid by virtue of Article 1, Sections
9 and 10.53
53 It may be noted that the provisions of the American Constitution are differently
worded. We must keep in view the language of sub-article (1) of Article 20.
Crl. Appeal No.377 of 2007 Page 63 of 106
29. Rao Shiv Bahadur Singh (supra) observes that
the language of sub-article (1) of Article 20 of
the Constitution is much wider in terms as the
prohibition under the Article is not confined to
the passing of validity of the law, and that
fullest effect must be given to the actual words
used and what they convey. Accordingly, the
decision had struck down Vidhya Pradesh
Ordinance 48 of 1949, which though enacted on
11.09.1949, had postulated that the provisions
would deemed to have come into force in Vidhya
Pradesh on 09.04.1948, a date prior to the date
of commission of offences. Interpreting the term
‘law in force’, it was held that the ordinance
giving retrospective effect would not fall within
the meaning of the phrase ‘law in force’ as used
in sub-article (1) of Article 20 of the
Constitution. The ‘law in force’ must be taken to
relate not to a law deemed to be in force, but
factually in force, and then only it will fall
within the meaning of ‘existing law’. Artifice or
fiction will fall foul, when they are with the
intent to defeat the salutary object and purpose
Crl. Appeal No.377 of 2007 Page 64 of 106
behind sub-article (1) of Article 20 of the
Constitution.54
30. The aforesaid rationale and principles of
interpretation equally apply to the second part
of sub-article (1) to Article 20, which states that
a person can only be subjected to penalties
prescribed under the law at the time when the
offence for which he is charged was committed.
Any additional or higher penalty prescribed by
any law after the offence was committed cannot
be imposed or inflicted on him. The sub-article
does not prohibit substitution of the penalty or
sentence which is not higher or greater than the
previous one or modification of rigours of
criminal law.55
54 In the present case, we need not examine-when an offence is a continuous
offence, an aspect and matter of considerable debate.
55 See T. Barai Vs. Henry Ah Hoe, (1983) 1 SCC 177 and Pratap Singh Vs. State of
Jharkhand, (2005) 3 SCC 551. The latter judgment refers to several judgments.
Crl. Appeal No.377 of 2007 Page 65 of 106
31. In view of the limited scope of the present
controversy, we need not examine in greater
detail sub-article (1) of Article 20. The reason
why we have referred to the constitutional
guarantee, which protects the citizens and
persons from retrospective ex post facto laws, is
to affirm that our decision in no way dilutes the
constitutional mandate. The issue involved in
the present reference relates to a matter of
procedure, and not the two aspects covered by
sub-article (1) of Article 20 of the Constitution.
32. Learned counsel for the parties have also briefly
referred to Section 6 of the General Clauses Act,
1897. It would be appropriate to reproduce the
said provision hereunder:
“Where this Act, or any Central
Act or Regulation made after the
commencement of this Act, repeals any
enactment hitherto made or hereafter to be
made, then, unless a different intention
appears, the repeal shall not-
(a) revive anything not in force or existing at
the time at which the repeal takes effect; or
(b) affect the previous operation of any
enactment so repealed or anything duly
done or suffered thereunder; or
(c) affect any right, privilege, obligation or
liability acquired, accrued or incurred
under any enactment so repealed; or
Crl. Appeal No.377 of 2007 Page 66 of 106
(d) affect any penalty, forfeiture or
punishment incurred in respect of any
offence committed against any enactment
so repealed; or
(e) affect any investigation, legal
proceeding or remedy in respect of any
such right, privilege, obligation, liability,
penalty, forfeiture or punishment as
aforesaid;
and any such investigation, legal
proceeding or remedy may be instituted,
continued or enforced, and any such
penalty, forfeiture or punishment may be
imposed as if the repealing Act or
Regulation had not been passed.”
A plain reading of the above provision
indicates that the repeal of an enactment shall
not affect previous operation, unless a different
intention appears. 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.
Crl. Appeal No.377 of 2007 Page 67 of 106
33. At this stage, it would be appropriate to briefly
refer to the case law on the above point
regarding applicability of Article 20 of the
Constitution.
(i) In the case of Rao Shiv Bahadur Singh (supra),
the Constitution Bench, as far back as 1953,
was dealing with the effect of Article 20(1) of the
Constitution raised under two separate
circumstances. The first being that the Court
which recorded the conviction had been
conferred jurisdiction much after the offence
had taken place and at the time of the offence
the forum was different. The other issue raised
with regard to Article 20(1) of the Constitution
was that although the offence had been
committed in the month of March and April
1949 but by way of an ordinance which came
into force in September 1949, the laws were
adopted which covered the offences for which
the appellants were charged and as such Article
20(1) would protect them and they could not be
tried for such offence which had been
introduced later on.
Crl. Appeal No.377 of 2007 Page 68 of 106
(ii) The Constitution Bench rejected the plea on
both the counts. Although in the present case,
the concern is only with the first aspect relating
to the issue regarding competent court to try the
offence which is a part of the procedure and had
nothing to do with conviction or sentence being
introduced subsequent to the offence. The
Constitution Bench held as follows with regard
to the above issue:
“9. In this context it is necessary to
notice that what is prohibited under
Article 20 is only conviction or
sentence under an ex post facto law
and not the trial thereof. Such trial
under a procedure different from what
obtained at the time of the commission of
the offence or by a court different from that
which had competence at the time cannot
ipso facto be held to be unconstitutional. A
person accused of the commission of
an offence has no fundamental right
to trial by a particular court or by a
particular procedure, except insofar as
any constitutional objection by way of
discrimination or the violation of any
other fundamental right may be
involved.
(emphasis supplied)”
Crl. Appeal No.377 of 2007 Page 69 of 106
(iii) With respect to the second aspect also, the
Constitution Bench did not find favour with the
appellant and held that the State of Vindhya
Pradesh had the power to frame laws being
applied retrospectively and also for the reason
that the said offence was already in existence
and in force in the said state in 1948 itself.
(iv) The Constitution Bench in the case of S.K.
Ghosh (supra) was dealing with an appeal filed
by the State of West Bengal assailing the
correctness of the judgment of the High Court
by which two Hon’ble Judges had allowed the
appeal of the respondent S.K. Ghosh but for
different reasons. Mitter J. had not dealt with
the applicability of Article 20(1) of the
Constitution for setting aside the forfeiture
proceedings. The same was set aside for the
reason that there was no determination under
Section 12 of the Criminal Law, 1944
Amendment vide 1944 Ordinance, whereas
Bhattacharya J. set aside the forfeiture on the
ground that the 1944 Ordinance had come into
force on 23.08.1944 whereas the effective period
for committing the offence had ended in July
1944.
Crl. Appeal No.377 of 2007 Page 70 of 106
(v) The Constitution Bench allowed the appeal of
the State of West Bengal by holding that both
the views taken by the respective judges were
not correct.
(vi) The Constitution Bench once again relied upon
the earlier Constitution bench judgment in the
case of Rao Shiv Bahadur Singh (supra) and
laid down that forfeiture in the said case would
have nothing to do with conviction or
punishment and therefore there could be no
application of Article 20(1). The relevant extract
from the aforesaid judgment is reproduced
hereunder:
Crl. Appeal No.377 of 2007 Page 71 of 106
“16. We may in this connection refer to Rao
Shiv Bahadur Singh v. State of Vindhya
Pradesh where Article 20(1) came to be
considered. In that case it was held that
“the prohibition contained in Article 20(1) of
the Constitution against conviction and
subjections to penalty under ex post facto
laws is not confined in its operation to post-
Constitution laws but applied also to ex
post facto laws passed before the
Constitution in their application to pending
proceedings”. This Court further held
that Article 20 prohibits only
conviction or sentence under an ex
post facto law, and not the trial
thereof. Such trial under a procedure
different from what obtained at the
time of the offence or by a court
different from that which had
competence at that time cannot ipso
facto be held to be unconstitutional.
Therefore, this case shows that it is
only conviction and punishment as
defined in Section 53 of the Indian
Penal Code which are included within
Article 20(1) and a conviction under an
ex post facto law or a punishment
under an ex post facto law would be
hit by Article 20(1); but the provisions
of Section 13(3) with which we are
concerned in the present appeal have
nothing to do with conviction or
punishment and therefore Article 20(1)
in our opinion can have no application
to the orders passed under Section
13(3).
(emphasis supplied)”
Crl. Appeal No.377 of 2007 Page 72 of 106
(vii) In the case of Rattan Lal (supra), a three-Judge
Bench of this Court by a majority of 2:1 was of
the view that a law made post the offence which
neither creates an offence nor enhances the
sentence but was a beneficial legislation for
reformation of first-time offenders, the benefit
could be extended to such an accused convicted
for the first time, i.e., under the Probation of
Offenders Act 1958, and that Article 20(1) of the
Constitution will have no application.
(viii) The Constitution Bench in the case of
Sukumar Pyne (supra), relying upon the earlier
Constitution Bench in Rao Shiv Bahadur Singh
(supra), further laid down that there is no
principle underlying Article 20(1) of the
Constitution which makes a right to any course
of procedure a vested right. The relevant extract
from the judgment is reproduced hereunder:
Crl. Appeal No.377 of 2007 Page 73 of 106
“20. …As observed by this Court in Rao
Shiv Bahadur Singh v. State of Vindhya
Pradesh a person accused of the
commission of an offence has no vested
right to be tried by a particular court or a
particular procedure except insofar as there
is any constitutional objection by way of
discrimination or the violation of any other
fundamental right is involved. It is well
recognized that “no person has a vested
right in any course of procedure” (vide
Maxwell 11th Edn., p.216), and we see no
reason why this ordinary rule should not
prevail in the present case. There is no
principle underlying Article 20 of the
Constitution which makes a right to
any course of procedure a vested
right…
(emphasis supplied)”
Crl. Appeal No.377 of 2007 Page 74 of 106
(ix) In the case of G.P. Nayyar (supra), a two-judge
Bench of this Court, while dealing with the
effect of repeal and revival of Section 5(3) of the
Prevention of Corruption Act, 1947, was of the
view that Section 5(3) did not by itself lay down
or introduce any offence. It was only a rule of
evidence whereas the offence was provided
under Section 5(1) or 5(2) of the 1947 Act. As
such, the claim of the appellant therein that
revival of Section 5(3) by the Anti-Corruption
Laws (Amendment) Bill, 1967 retrospectively hit
by Article 20(1) of the Constitution was without
any merit. Reliance was placed upon the earlier
Constitution Bench judgment in Rao Shiv
Bahadur Singh (supra) that it was only
conviction or sentence under an ex post facto
law that was prohibited under Article 20(1) of
the Constitution and would not affect the trial.
What this Court said was that the appellant
cannot object to a procedure different from what
existed at the time of the commission of the
offence by applying Article 20(1) of the
Constitution. It may be noticed that this was a
judgment relating to law being amended by the
Parliament and not law being declared
Crl. Appeal No.377 of 2007 Page 75 of 106
unconstitutional by a Court. The relevant
extract from the said judgment reads as follows:
“There can be no objection in law to the
revival of the procedure which was in force
at the time when the offence was
committed. The effect of the amendment is
that sub-section (3) of Section 5 as it stood
before the commencement of the 1964 Act
shall apply and shall be deemed to have
always applied in relation to trial of
offences. It may be if by this deeming
provision a new offence was created, then
the prohibition under Article 20(1) may
come into operation. But in this case, as
already pointed out, what is done is no
more than reiterating the effect of Section
6(1) of the General Clauses Act. Mr. Garg,
the learned Counsel, submitted that by
amending procedure drastically and giving
it retrospective effect, a new offence may
be created retrospectively. It was
contended that by shifting the burden of
proof as provided for in Section 5(3) of the
Prevention of Corruption Act, 1947, a new
offence is created. It is unnecessary for us
to consider the larger question as to
whether in certain circumstances giving
retrospective effect to the procedure may
amount to creation of an offence
retrospectively. In the present case the
old procedure is revived and no new
procedure is given retrospective effect.
The procedure given effect to is not of
such a nature as to result in the
creation of a new offence.
(emphasis supplied)”
Crl. Appeal No.377 of 2007 Page 76 of 106
(x) In the case of Soni Devrajbhai Babubhai
(supra), the facts were that on 13.08.1986, the
daughter of the appellant therein had died.
Subsequently, Section 304-B of the IPC was
introduced in the Indian Penal Code through
Amending Act No. 43 of 1986, which came into
effect on November 19, 1986. The accused
(respondent in the appeal therein) raised a plea
that he could not be charged or tried under
Section 304-B of the IPC as, at the time of the
offence, such provision was not in existence. It
had been introduced much later. The Trial
Court rejected the said application. However, the
High Court agreed with the contention of the
accused-respondent therein and hold that he
could not be tried under Section 304-B as it was
a new offence created subsequent to the
commission of the offence. The Supreme Court
upheld the view of the High Court and rejected
the contention of the complainant-appellant.
Crl. Appeal No.377 of 2007 Page 77 of 106
(xi) In the case of Ajay Agarwal (supra), a two-judge
Bench of this Court while dealing with the
provisions of Section 11B of the Securities and
Exchange Board of India Act, 199256, which was
inserted in 1995 held that this provision was
procedural in nature and could be applied
retrospectively. It was of the view that for any
law which affects matters of procedure, the
same would apply to all actions, pending as well
as future and no procedural amendment could
be said to be creating an offence; and,
accordingly, disagreed with the view of the
Appellate Tribunal, and upheld the order passed
by the Chairman, SEBI that retrospective
insertion of Section 11B of the SEBI Act cannot
be hit by Article 20(1) of the Constitution. The
Court once again relied on the judgment of the
Constitution Bench in the case of Rao Shiv
Bahadur Singh (supra).
56 The SEBI Act
Crl. Appeal No.377 of 2007 Page 78 of 106
34. Although, Mr. Datar, learned counsel has
sought to canvass that the marginal note along
with Article 20 of the Constitution refers to
protection in respect of conviction and,
therefore, anything which may relate to or may
be a pre-requisite for conviction should stand
covered by Article 20(1) of the Constitution. The
enquiry, investigation and trial being prerequisite
are an essential part on the basis of
which, the Court may ultimately arrive at a
conviction for an offence. It was thus submitted
that if the enquiry, investigation and trial stand
vitiated for any reason, the conviction itself
cannot be sustained.
Crl. Appeal No.377 of 2007 Page 79 of 106
35. The submission of Mr. Datar, learned counsel is
too far-fetched and gives a very wide and openended
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 (supra).
36. For the reasons recorded above, 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.
Crl. Appeal No.377 of 2007 Page 80 of 106
Retrospective or Prospective application of the
judgment in the case of Subramanian Swamy
(supra) (Question No.3).
37. 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.
38. The question for determination is whether
declaration of any law as unconstitutional by a
Constitutional Court would have retrospective
effect or would apply prospectively.
Crl. Appeal No.377 of 2007 Page 81 of 106
39. Much emphasis has been laid on the
interpretation of the word ‘void’ used in Article
13(2) of the Constitution. The same word ‘void’
is used in Article 13(1) of the Constitution also.
The judgements relied upon by the parties
which will be shortly discussed hereinafter
relate to the interpretation of the said word
‘void’ by various Constitution Benches and a
seven-judge Bench and other regular Benches.
In the Oxford dictionary, the word ‘void’ is
defined to mean something is not legally valid or
binding, when used as an adjective and further
when used as a verb, it means to declare that
something is not valid or legally binding.
40. Article 13 of the Constitution has two sub-
Articles (1) and (2). It reads as follows:
“13(1). All laws in force in the territory of
India immediately before the
commencement of this Constitution, in so
far as they are inconsistent with the
provisions of this Part, shall, to the extent
of such inconsistency, be void
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.”
Crl. Appeal No.377 of 2007 Page 82 of 106
41. 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'.
Crl. Appeal No.377 of 2007 Page 83 of 106
42. A brief reference to the case law on the point
would be necessary at this stage. It may be
worthwhile to mention that the earlier sevenjudge
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).
Crl. Appeal No.377 of 2007 Page 84 of 106
(i) The facts in the case of Keshavan Madhava
Menon (supra), was that a prosecution was
launched against the appellant therein under
the provision of the Indian Press (Emergency
Powers) Act, 193157 for a publication issued
without the necessary authority under Section
15(1) of the said Act, and as such, became an
offence punishable under Section 18 (1) of the
same Act. This prosecution had been launched
in 1949 itself and registered as Case No. 1102/P
of 1949. During the pendency of the said
proceedings, the Constitution of India came into
force on 26.01.1950. The appellant therein took
an objection that provisions of 1931 Act were
ultra vires of Article 19(1)(a) read with Article
13(1) of the Constitution and would, therefore,
be void and inoperative as such he may be
acquitted. The High Court was of the view that
the proceedings pending on the date of
commencement of the Constitution would not
be affected even if the 1931 Act was inconsistent
with the Fundamental Rights conferred by Part
III of the Constitution. However, the same would
become void under Article 13(1) of the
Constitution only after 26.01.1950.
57 In short, “1931 Act”
Crl. Appeal No.377 of 2007 Page 85 of 106
(ii) The seven-judge Bench of this Court gave rise to
three separate opinions: Justice Sudhi Ranjan
Das authored the majority judgement with Chief
Justice Kania, Justice M. Patanjali Sastri and
Justice N. Chandrasekhara Aiyar concurring;
Justice Mehar Chand Mahajan authored a
separate opinion concurring with the majority
view; Justice Fazal Ali wrote a dissenting
judgment with Justice B.K. Mukherjea agreeing
with him. The majority agreed with the view
taken by the High Court. They accordingly
dismissed the appeal. Para 16 of the report
which contains the dictum is reproduced
hereunder:
Crl. Appeal No.377 of 2007 Page 86 of 106
“16. As already explained above, Article
13(1) is entirely prospective in its operation
and as it was not intended to have any
retrospective effect there was no necessity
at all for inserting in that article any such
saving clause. The effect of Article 13(1) is
quite different from the effect of the expiry
of a temporary statute or the repeal of a
statute by a subsequent statute. As already
explained, Article 13 (1) only has the effect
of nullifying or rendering all inconsistent
existing laws ineffectual or nugatory and
devoid of any legal force or binding effect
only with respect to the exercise of
fundamental rights on and after the date of
the commencement of the Constitution. It
has no retrospective effect and if, therefore,
an act was done before the commencement
of the Constitution in contravention of the
provisions of any law which, after the
Constitution, becomes void with respect to
the exercise of any of the fundamental
rights, the inconsistent law is not wiped
out so far as the past act is concerned, for,
to say that it is, will be to give the law
retrospective effect. There is no.
fundamental right that a person shall not
be prosecuted and punished for an offence
committed before the Constitution came into
force. So far as the past acts are concerned
the law exists, notwithstanding that it does
not exist with respect to the future exercise
of fundamental rights.”
Crl. Appeal No.377 of 2007 Page 87 of 106
However, Justice Fazal Ali was of the view
that though there can be no doubt that Article
13(1) will have no retrospective operation and
transactions which are past and closed, and
rights which have already vested will remain
untouched. However, with regard to inchoate
matters which were still not determined when
the Constitution came into force, and as
regards proceedings not begun, or pending at
the time of enforcement of the Constitution
and not yet prosecuted to a final judgment, the
answer to this question would be that the law
which has been declared by the Constitution to
be completely ineffectual, can no longer be
applied. To be precise, paragraph no. 63 of the
report from SCC Online referred has been
reproduced hereunder:
Crl. Appeal No.377 of 2007 Page 88 of 106
“There can be no doubt that Article 13(1)
will have no retrospective operation, and
transactions which are past and closed,
and rights which have already vested, will
remain untouched. But with regard to
inchoate matters which were still not
determined when the Constitution came
into force, and as regards proceedings
whether not yet begun, or pending at the
time of the enforcement of the Constitution
and not yet prosecuted to a final judgment,
the very serious question arises as to
whether a law which has been declared by
the Constitution to be completely ineffectual
can yet be applied.”
(iii) In the case of Behram Khurshed Pesikaka
(supra), a seven-judge Bench of this Court was
considering the legal effect of the declaration
made in the case of State of Bombay Vs. F.N.
Balsara58, whereby part of Section 13 clause (b)
of the Bombay Prohibition Act (Act 25 of 1949)
was declared unconstitutional. It was held by
the majority opinion that declaration of such
provision as invalid and unconstitutional will
only mean that it is inoperative and ineffective
and thus unenforceable.
58 (1951) 1 SCR 682
Crl. Appeal No.377 of 2007 Page 89 of 106
(iv) The Constitution Bench in the case of M.P.V.
Sundararamier and Co. (supra) was dealing
with the validity of Sales Tax Laws Violation Act,
1956. In paragraph 41, while dealing with
difference between law being unconstitutional
on account of it being not within the
competence of the legislature or because it was
offending some constitutional restrictions
differentiated between the two. Relevant extract
is reproduced here under:
Crl. Appeal No.377 of 2007 Page 90 of 106
“41. Now, in considering the question
as to the effect of unconstitutionality of a
statute, it is necessary to remember that
unconstitutionality might arise either
because the law is in respect of a matter
not within the competence of the
legislature, or because the matter itself
being within its competence, its provisions
offend some constitutional restrictions. In a
Federal Constitution where legislative
powers are distributed between different
bodies, the competence of the legislature to
enact a particular law must depend upon
whether the topic of that legislation has
been assigned by the Constitution Act to
that legislature. Thus, a law of the State on
an Entry in List 1, Schedule VII of the
Constitution would be wholly incompetent
and void. But the law may be on a topic
within its competence, as for example, an
Entry in List II, but it might infringe
restrictions imposed by the Constitution on
the character of the law to be passed, as
for example, limitations enacted in Part III
of the Constitution. Here also, the law to
the extent of the repugnancy will be void.
Thus, a legislation on a topic not
within the competence of the
legislature and a legislation within its
competence but violative of
constitutional limitations have both
the same reckoning in a court of law;
they are both of them unenforceable.
But does it follow from this that both the
laws are of the same quality and character,
and stand on the same footing for all
purposes? This question has been the
subject of consideration in numerous
decisions in the American Courts, and the
preponderance of authority is in favour of
the view that while a law on a matter not
within the competence of the legislature is
a nullity, a law on a topic within its
competence but repugnant to the
Crl. Appeal No.377 of 2007 Page 91 of 106
constitutional prohibitions is only
unenforceable. This distinction has a
material bearing on the present discussion.
If a law is on a field not within the domain
of the legislature, it is absolutely null and
void, and a subsequent cession of that field
to the legislature will not have the effect of
breathing life into what was a still-born
piece of legislation and a fresh legislation
on the subject would be requisite. But if the
law is in respect of a matter assigned to
the legislature but its provisions disregard
constitutional prohibitions, though the law
would be unenforceable by reason of those
prohibitions, when once they are removed,
the law will become effective without reenactment.
(emphasis supplied)”
The distinction drawn was that where a
law is not within the domain of the legislature,
it is absolutely null and void. But where a law
is declared to be unconstitutional, then it
would be unenforceable and to that extent void,
as per Article 13(2) of the Constitution.
Crl. Appeal No.377 of 2007 Page 92 of 106
(v) The challenge in the case of Deep Chand
(supra) was with respect to the validity of the
Uttar Pradesh Transport Service (Development)
Act, 1955. The Constitution Bench, after
discussing merit of Article 13(2) of the
Constitution, was of the firm view that a plain
reading of the Clause indicates, without any
reasonable doubt, that the prohibition goes to
the root of the matter and limits the State’s
power to make law; the law made in spite of the
prohibition is a still born law. The relevant
extract which is part of the paragraph 13 (from
the AIR reference), is reproduced hereunder:
Crl. Appeal No.377 of 2007 Page 93 of 106
“13. …A Legislature, therefore, has no
power to make any law in derogation of the
injunction contained in Art. 13. Article 13(1)
deals with laws in force in the territory of
India before the commencement of the
Constitution and such laws in so far as
they are inconsistent with the provisions of
Part III shall, to the extent of such
inconsistency be void. The clause,
therefore, recognizes the validity of, the pre-
Constitution laws and only declares that
the said laws would be void thereafter to
the extent of their inconsistency with Part
III; whereas cl. (2) of that article imposes a
prohibition on the State making laws
taking away or abridging the rights
conferred by Part III and declares that laws
made in contravention of this clause shall,
to the extent of the contravention, be void.
There is a clear distinction between the two
clauses. Under cl. (1), a pre-Constitution
law subsists except to the extent of its
inconsistency with the provisions of Part III;
whereas, no post-Constitution law can
be made contravening the provisions of
Part III, and therefore the law, to that
extent, though made, is a nullity from
its inception. If this clear distinction is
borne in mind, much of the cloud raised is
dispelled. When cl. (2) of Art. 13 says in
clear and unambiguous terms that no State
shall make any law which takes away or
abridges the rights conferred by Part III, it
will not avail the State to contend either
that the clause does not embody a
curtailment of the power to legislate or that
it imposes only a check but not a
prohibition. A constitutional prohibition
against a State making certain laws
cannot be whittled down by analogy or
by drawing inspiration from decisions
on the provisions of other
Constitutions; nor can we appreciate the
argument that the words " any law " in the
Crl. Appeal No.377 of 2007 Page 94 of 106
second line of Art. 13(2) posits the survival
of the law made in the teeth of such
prohibition. It is said that a law can come
into existence only when it is made and
therefore any law made in contravention of
that clause presupposes that the law made
is not a nullity. This argument may be
subtle but is not sound. The words " any
law " in that clause can only mean an Act
passed or made factually, notwithstanding
the prohibition. The result of such
contravention is stated in that clause. A
plain reading of the clause indicates,
without any reasonable doubt, that the
prohibition goes to the root of the
matter and limits the State's power to
make law; the law made in spite of the
prohibition is a still- born law.
(emphasis supplied)”
Crl. Appeal No.377 of 2007 Page 95 of 106
(vi) In the case of Mahendra Lal Jaini (supra),
again a Constitution Bench dealing with validity
of the U.P. Land Tenures (Regulation of
Transfers) Act, 1952 as also the amendment of
1956 in the Forests Act, 1957 had the occasion
to analyse the difference between Article 13(1)
and 13(2). Paragraph nos. 23 and 24 of the
report contains the relevant discussion. In
paragraph No. 23, it was laid down that the
distinction between the voidness in one case
arises from the circumstance that it was a pre-
Constitutional law and the other is post-
Constitutional law. However, the meaning of the
word void is used in both the sub-Articles
clearly making the law ineffectual and nugatory,
devoid of any legal force or binding effect in both
the cases. Further in paragraph no. 24 of the
report, the Bench proceeds to deal with the
effect of an amendment in the Constitution,
with respect to the pre-Constitutional laws,
holding that removing the inconsistency would
result in revival of such laws by virtue of
doctrine of eclipse as the pre-existing laws were
not still born. However, in the case of the post-
Constitutional laws, the same would be still
Crl. Appeal No.377 of 2007 Page 96 of 106
born, and as such doctrine of eclipse would not
be applicable to the post-Constitutional laws.
Doctrine of eclipse does not apply in the present
case, for Section 6A of the DSPE Act has been
struck down as unconstitutional. There is no
attempt to re-legislate this provision by
removing the illegality resulting in
unconstitutionality. We may beneficially
reproduce paragraph nos. 23 and 24 of the said
report hereunder:
Crl. Appeal No.377 of 2007 Page 97 of 106
“23. It is however urged on behalf of the
respondents that this would give a
different meaning to the word 'void" in Art.
13 (1). as compared to Art. 13 (2). We do
not think so. The meaning of the word
"void" in Art. 13 (1) was considered in
Keshava Madhava Menon's caseand again
in Behram Khurshed Pesikaka's caseIn the
later case, Mahajan, C. J., pointed out
thatthe majority in Keshava Madhava
Menon's case (3) clearly held that the word
"void" in Art. 13(1) did not mean that the
statute stood repealed and therefore
obliterated from the statute book; nor did it
mean that the said statute was void ab
initio. This, in our opinion if we may say so
with respect, follows clearly from the
language of Art. 13(1), which presupposes
that the existing laws are good except to
the extent of the inconsistency with the
fundamental rights. Besides there could
not be any question of an existing law
being void ab initio on account of the
inconsistency with Art. 13(1), as they were
passed by competent legislatures at the
time when they were enacted. Therefore, it
was pointed out that the effect of Art. 13(1)
with respect to existing laws insofar as
they were unconstitutional was only that it
nullified them, and made them "'ineffectual
and nugatory and devoid of any legal force
or binding effect". The meaning of the
word "void" for all practical purposes
is the same in Art. 13(1) as in Art.
13(2), namely, that the laws which
were void were ineffectual and
nugatory and devoid of any legal force
or binding effect. But the pre-
Constitution laws could not become
void from their inception on account of
the application of Art. 13(1) The
meaning of the word ','void" in Art. 13
(2) is also the same viz., that the laws
are ineffectual and nugatory and
Crl. Appeal No.377 of 2007 Page 98 of 106
devoid of any legal force on binding
effect, if they contravene Art. 13(2).
But there is one vital difference
between pre-Constitution and post-
Constitution laws in this matter. The
voidness of the pre-Constitution laws
is. not from inception. Such voidness
supervened when the Constitution
came into force; and so, they existed
and operated for some time and for
certain purposes; the voidness of post-
Constitution laws is from their very
inception and they cannot therefore
continue to exist for any purpose. This
distinction between the voidness in one
case and the voidness in the other arises
from the circumstance that one is a pre-
Constitution law and the other is a post-
Constitution law; but the meaning of the
word void" is the same in either case,
namely, that the law is ineffectual and
nugatory and devoid of any legal force or
binding effect.
24. Then comes the question as to what is
the effect of an amendment of the
Constitution in the two types of cases. So
far 'as pre-Constitution laws are concerned
the amendment of the Constitution which
removes the inconsistency will result in the
revival of such laws by virtue of the
doctrine of eclipse, as laid down in Bhikaji
Narain's case (1) for the pre-existing laws
were not still-born and would still exist
though eclipsed on account of the
inconsistency to govern_ pre-existing
matters. But in the case of post-
Constitution laws, they would be still
born to the extent of the contravention.
And it is this distinction which results
in the impossibility of applying the
doctrine of eclipse to post-Constitution
laws, for nothing can be revived which
never had any valid existence. We are
therefore of opinion that the meaning of the
word "void" is the same both in Art 13 (1)
and Art. 13 (2), and that the application of
the doctrine of eclipse in one case and not
in the other case does not depend upon
giving a different meaning to the word
"void' in the two parts of Art. 13; it arises
from the inherent difference between Art.
13 (1) and Art. 13 (2) arising from the fact
that one is dealing with pre-Constitution
laws, and the other is dealing with post-
Constitution laws, with the result that in
one case the laws being not still-born the
doctrine of eclipse will apply while in the
other case the laws being still born-there
will be no scope for the application of the
doctrine of eclipse. Though the, two clauses
form part of the same Article, there is a
vital difference in the language employed
in them as also in their content and scope.
By the first clause the Constitution
recognises the existence of certain
operating laws and they are declared void,
to the extent of their inconsistency with
Crl. Appeal No.377 of 2007 Page 100 of 106
fundamental rights. Had there been no
such declaration, these laws would have
continued to operate. Therefore, in the case
of pre- Constitution laws what an
amendment to the Constitution does is to
remove the shadow cast on it by this
declaration. The law thus revives.
However, in the case of the second
clause, applicable to post Constitution
laws, the Constitution does not
recognise their existence, having been
made in defiance of a prohibition to
make them. Such defiance makes the
law enacted void. In their case
therefore there can be no revival by an
amendment of the Constitution, MO
though the bar to make the law is
removed, so far as the period after the
amendment is concerned. In the case
of post- Constitution laws, it would be
hardly appropriate to distinguish
between laws which are wholly void-as
for instance, those which contravene
Art. 31-and those which are
substantially void but partly valid, as
for instance, laws contravening Art.
19. Theoretically, the laws falling
under the latter category may be valid
qua non-citizens; but that is a wholly
unrealistic consideration and it seems
to us that such nationally partial
valid existence of the said laws on the
strength of hypothetical and pedantic
considerations cannot justify the
application of the doctrine of eclipse
to them. All post Constitution laws
which contravene the mandatory
injunction contained in the first part
of Art. 13 (2) are void, as void as are
the laws passed without legislative
competence, and the doctrine of
eclipse does not apply to them. We are
therefore of opinion that the Constitution
(Fourth Amendment) Act cannot be applied
to the Transfer Act in this case by virtue of
the doctrine of eclipse It follows therefore
that the Transfer Act is unconstitutional
because it did not comply with Art. 31 (2),
as it stood at the time it was passed. It will
therefore have to be struck down, and the
petitioner given a declaration in his favour
accordingly.
(emphasis supplied)”
(vii) In the case of State of Manipur (supra),
recently a three-judge Bench of this Court, was
dealing with an appeal against the judgement of
the Manipur High Court which had declared the
Manipur Parliamentary Secretary (Appointment,
Salary and Allowances and Miscellaneous
Provisions) Act, 2012 (Manipur Act No. 10 of
2012) as also the Repealing Act, 2018, as
unconstitutional. Justice L. Nageswara Rao,
speaking for the Bench, observed that where a
statute is adjudged to be unconstitutional, it is
as if it had never been and any law held to be
unconstitutional for whatever reason, whether
due to lack of legislative competence or in
violation of fundamental rights, would be void
ab initio. Paragraph Nos. 22 and 23 of the said
judgment are reproduced hereunder:
“22. Where a statute is adjudged to be
unconstitutional, it is as if it had
never been. Rights cannot be built up
under it; contracts which depend upon it
for their consideration are void; it
constitutes a protection to no one who has
acted under it and no one can be punished
for having refused obedience to it before the
decision was made. Field, J. in Norton v.
Shelby County, observed that “an
unconstitutional act is not law, it
confers no rights, it imposes no duties,
it affords no protection, it creates no
office; it is, in legal contemplation, as
inoperative as though it had never
been passed”.
23. An unconstitutional law, be it
either due to lack of legislative
competence or in violation of
fundamental rights guaranteed under
Part III of the Constitution of India, is
void” ab initio. In Behram Khurshid
Pesikaka v. State of Bombay, it was held
by a constitution bench of this Court that
the law-making power of the State is
restricted by a written fundamental law
and any law enacted and opposed to the
fundamental law is in excess of the
legislative authority and is thus, a nullity.
A declaration of unconstitutionality
brought about by lack of legislative
power as well as a declaration of
unconstitutionality brought about by
reason of abridgement of fundamental
rights goes to the root of the power
itself, making the law void in its
inception. This Court in Deep Chand v.
State of Uttar Pradesh & Ors. summarised
the following propositions:
“(a) Whether the Constitution
affirmatively confers power on the
legislature to make laws subject-wise or
negatively prohibits it from infringing any
fundamental right, they represent only
two aspects of want of legislative power;
(b) The Constitution in express terms
makes the power of a legislature to make
laws in regard to the entries in the Lists
of the Seventh Schedule subject to the
other provisions of the Constitution and
thereby circumscribes or reduces the said
power by the limitations laid down in
Part III of the Constitution;
(c) It follows from the premises that a
law made in derogation or in excess
of that power would be ab initio
void…
(emphasis supplied)”
Further after discussing the law laid
down by the previous pronouncements, the
principles were deduced in paragraph no. 28 to
state that a statute declared unconstitutional
by a court of law would be still born and non
est for all purposes. Paragraph 28 of the report
is reproduced hereunder:
“28. The principles that can be deduced
from the law laid down by this Court, as
referred to above, are:
I. A statute which is made by a
competent legislature is valid till it is
declared unconstitutional by a court of law.
II. After declaration of a statute as
unconstitutional by a court of law, it is
non est for all purposes.
III. In declaration of the law, the
doctrine of prospective overruling can be
applied by this Court to save past
transactions under earlier decisions
superseded or statutes held
unconstitutional.
IV. Relief can be moulded by this Court
in exercise of its power under Article 142 of
the Constitution, notwithstanding the
declaration of a statute as
unconstitutional.
(emphasis supplied)”
43. 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.
44. 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.
45. Accordingly, the matters may be placed before
the appropriate Bench to be heard and decided
on merits.
………………………………………………J.
(SANJAY KISHAN KAUL)
………………………………………………J.
(SANJIV KHANNA)
………………………………………………J.
(ABHAY S. OKA)
………………………………………………J.
(VIKRAM NATH)
………………………………………………J.
(J.K. MAHESHWARI)
NEW DELHI
SEPTEMBER 11, 2023
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