Article 20(1) Of Constitution Doesn't Bar Retrospective Application Of Procedural Changes In Criminal Trial : Supreme Court

While holding that its 2014 judgment declaring Section 6A of the Delhi Special Police Establishment Act 1946 to be unconstitutional, will have a retrospective effect, the court analysed the contours of Section 6A, especially in the context of the protections safeguarded under Article 20(1) of the Indian Constitution. This verdict was delivered by a constitution bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath, and JK Maheshwari. The court had reserved its judgment in November last year after hearing arguments over the pivotal issue, i.e., whether its 2014 judgment in Subramanian Swamy v. Union of India striking down Section 6A(1) of the Delhi Police Special Establishment Act, 1946, which mandated central government sanction for investigations involving certain government officials, would retrospectively apply to pending cases. Answering the reference, the constitution bench has now ruled that its earlier decision will have a ‘retrospective operation’.

Other than holding that a person could be deprived of the immunity conferred statutorily owing to the retrospective operation of the 2014 judgment striking down the immunity-granting provision, the court also concluded that the struck-down Section 6A of the Delhi Special Police Establishment Act providing protection to certain categories of government servants was a part of the procedure only and did not introduce any new offence or enhance any punishment or sentence. Justice Nath, on behalf of the bench, writes –

“Section 6A of the Delhi Special Police Establishment 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 an investigation or enquiry of an offence under the Prevention of Corruption 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. There is no attempt on the part of the respondent or by Senior Advocate Arvind Datar to canvass that Section 6A is not part of procedural law and that it in any manner introduces any conviction or enhances any sentence post the commission of an offence. It is, therefore, held that 6A of the DSPE Act is a part of the procedure only in the form of protection for senior government servants. It does not introduce any new offence nor does it enhance the punishment or sentence.”

After making this observation, the court proceeded to examine the relevance of Article 20(1) of the Constitution on the declaration of Section 6A as unconstitutional. This article bars an individual from being convicted or sentenced under an ex post facto law. In other words, no punishment would lie for an act that is not an offence at the time of its commission, although trial under a procedure different from the one in force at the time of the 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 Clause (1) of Article 20. The second part of the clause states that a person can only be subjected to penalties prescribed under the law at the time when the offence was committed. Any additional or higher penalty prescribed by any law after the offence was committed cannot be imposed or inflicted, although the substitution of a penalty or sentence that is not higher or greater than the previous one or a modification of the rigours of criminal law are not prohibited. The court then observes –

“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 Article 20(1) of the Constitution.”

In this connection, the court rejected the argument proposed by Senior Advocate Arvind Datar, who relied on the marginal note to argue that Section 6A offered immunity not just from conviction but also from inquiry, investigation, and trial and that such procedural safeguards formed a part of Article 20(1) –

“Although, Mr Datar 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 maybe a prerequisite for conviction should stand covered by Article 20(1) of the Constitution. The inquiry, investigation, and trial being prerequisites 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 inquiry, investigation, and trial stand vitiated for any reason, the conviction itself cannot be sustained. This submission is too far-fetched and gives a very wide and open-ended expanse to Article 20(1) of the Constitution stretching it even to procedural aspects merely on account of the marginal note.”

Ultimately, the bench concluded that Article 20(1) would have no bearing on either the validity or invalidity of Section 6A of the DSPE Act since it was merely procedural in nature –

“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. 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.

Other reports about the judgment can be read here.

Case Title : Central Bureau of Investigation v. Dr RR Kishore | Criminal Appeal No. 377 of 2007 and other connected matters

Citation : 2023 LiveLaw (SC) 770

Click here to read the judgment