NEW DELHI: India's top court on Monday ruled that its 2014 order striking down a provision in the Delhi Special Police Establishment (DSPE) Act that barred investigative agencies from probing corruption cases against senior government officers without approval will have a retrospective effect.
Section 6A of the DSPE Act had mandated probe agencies to seek the Centre’s nod to investigate graft cases against officers at the level of joint secretary and above. The section was inserted on September 11, 2003, and had in effect provided immunity to such officers. In 2014, the SC struck it down saying there can be no distinction between officials based on their rank.
On Monday, a five-judge bench headed by Justice Sanjay Kishan Kaul ruled unanimously that its 2014 order would be enforceable from the date the provision was inserted (September 11, 2003). SC said Section 6A will be considered as never having been in force.
“Once a law is declared to be unconstitutional... then it would be held to be void ab initio, stillborn, unenforceable and non-est in view of Article 13(2) of the Constitution and its interpretation by authoritative pronouncements,” it said.
The bench, also comprising judges Sanjiv Khanna, A S Oka, Vikram Nath, and J K Maheshwari, said Article 20(1) of the Constitution would not be applicable in this case because Section 6A is part of a legal procedure exclusively applicable to senior officials. Article 20(1) says that no person can be convicted of any offence except for violation of the law in force at the time of the commission of the act.
The top court held that section 6A of the Act is a part of the procedure only in the form of protection to senior government servants and it does not introduce any new offence nor it enhances the punishment or sentence.
The bench noted Parliament amended the law and inserted section 17A in the Prevention of Corruption Act, 1988 with effect from July 26, 2018, providing for the statutory need for sanction to prosecute but without any classification of government servants.