Once A Law Is Declared Unconstitutional, It Becomes Inoperative From Its Inception; Void Ab Initio : Supreme Court

“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, stillborn, 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 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. September 11, 2003.”

This verdict was delivered on Monday 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.

This case stemmed from an arrest made under the Delhi Police Special Establishment Act, 1946 without prior sanction, prompting a legal challenge on grounds of violation of Section 6A which mandated the Central Bureau of Investigation to take sanction of the government before investigating an officer of the rank of joint secretary and above in corruption cases. The Delhi High Court ruled that since the Central Bureau of Investigation had initiated the investigation before the arrest, the exception contained in Sub-section (2) of Section 6A for spot arrests would not apply. Accordingly, the high court directed the agency to seek the central government's approval for reinvestigation. This decision was challenged by the CBI in the Supreme Court in 2007, but while the matter was being heard, Section 6A was declared unconstitutional in Subramanian Swamy (2014). However, the application of this ruling to pending cases remained unclear, which is why the issue was referred to a constitution bench in the current case. Answering the reference, the court has now ruled that its earlier decision will have a ‘retrospective operation’.

While considering whether 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 had to delve into the meaning of ‘void’ and the differences between clause (1) and (2) and Article 13 dealing with pre and post-Constitution laws respectively. The bench reiterated that while under the first clause, a pre-Constitution law would subsist except to the extent of its inconsistency with the provisions of Part III; any law made after the enactment of the Constitution that was found to be in contravention with the provisions of Part III would be a nullity from its very inception.

In support of this, the court relied on a catena of judgments including Mahendra Lal Jaini (1963), in which it was held that ‘voidness’ with respect to Article 13(1) supervened when the Constitution came into force and any pre-Constitution law found to be unconstitutional existed and operated for some time, unlike post-Constitution laws which are void from their inception and cannot continue to exist for any purpose. It also drew strength from a recent judgment delivered by a bench headed by former Supreme Court judge L Nageswara Rao holding that a post-Constitution statute declared unconstitutional either owing to a lack of legislative competence or a violation of any fundamental right, would be void ab initio(The State of Manipur & Ors. v. Surjakumar Okram & Ors). Therefore, once such a law is held to be unconstitutional, the Justice Kaul-led bench reiterated today, it would be held to be ‘void ab initio’, ‘still born’, ‘unenforceable’, and ‘non est’ and accordingly, the struck-down Section 6A of the Delhi Special Police Establishment Act would be considered to not be in force right from the date of the enactment of the provision.

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