Whether One Can Be Deprived Of Immunity From Arrest By Retrospective Operation Of Judgment? Supreme Court Constitution Bench To Hear From Nov 1

The 5-Judge Bench comprising Justice S.K. Kaul, Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari noted that the Counsels for the parties would take two half day sessions to complete their submissions.

"List from 1st Nov, 2022. In two half day sessions the matter should be completed. In case of a spillover, we will take it on Thursday, i.e. 3rd Nov, 2022."

Senior Advocate, Mr. Arvind Datar apprised the Bench of the crux of the issue involved in the matter -

"Now the main question is what is the effect of law being struck down as void…"

Solicitor General, Mr. Tushar Mehta stated that once a provision is struck down it would be considered as if the provision never existed -

"Once your lordship says that it was not constitutional then it would be as if it never existed."

Mr. Datar refuted Mr. Mehta's submission, and stated that the issue needs to be considered.

Section 6A(1) of the Delhi Police Special Establishment Act, 1946 contemplates that before conducting investigation or inquiry under the Prevention of Corruption Act, the Central Bureau of Investigation (CBI) ought to seek sanction 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.

Section 6A(2) provided exception from such approval in cases of spot arrest.

In 2014, the Apex Court in Subramanian Swamy v. Director CBI had struck down Section 6A(1).

In the present matter, the accused was arrested while accepting a bribe. As the arrest was without sanction, he challenged the same. CBI argued that his case falls under the exception in Section 6A(2). The Delhi High Court noted that the SBI had already proceeded with investigation prior to the arrest and therefore, the present case would not fall under the ambit of Section 6A(2). It asked CBI to seek Central Government's approval and reinvestigate. In 2007, CBI assailed the order of the High Court before the Supreme Court. While the matter was pending adjudication, Section 6A(1) was struck down, but applicability of the same on pending cases was not clarified by the Apex Court.

The Division Bench, while referring the matter to the Constitution Bench, by its order dated 10.03.2016, formulated the issue as under -

"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…"