Whether Striking Down of a Provision Granting Immunity from Arrest Would Have Retrospective Application? Supreme Court CB Commences Hearing

The Supreme Court on Tuesday commenced hearing on the issue of whether striking down of a provision granting immunity from arrest would have retrospective application, especially in view of rights protected under Article 20 of the Constitution.The 5-Judge Bench of Justices S.K. Kaul, Sanjiv Khanna, A. S. Oka, Vikram Nath and J. K. Maheshwari was hearing the matter. Earlier, SG Tushar Mehta, for the UOI, had stated that once a provision is struck down, it would be considered as if the provision never existed. Senior Advocate Arvind Datar had refuted that submission. 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 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 CBI 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 of 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…"Advocate R. R. Kishore, appearing as party-in-person: "The Union of India filed a very detailed affidavit in a very unusual manner against the CBI. That affidavit was not filed by them themselves- the division bench of this hon'ble court gave suo motu notice to the Union of India, taking into account the fact that the Union of India is answerable for the functioning of the CBI as per Vinod Narain's case. On 27th of April, 2012, this hon'ble court issued suo motu notice to the Union of India which was replied to by them, where it has been categorically stated that the CBI does not have jurisdiction to initiate investigation against the respondent without the prior approval of the central government. The Union of India, after a detailed analysis, has stated that the CBI action was illegal and the judgment of the Delhi High Court is fully consistent with law"Dr. Kishore: "I have read the position across jurisdictions- civil law and common law. For a brief period in the 19th century, William Blackstone, who wrote commentaries on the laws of England, implanted a doctrine of retrospectivity and retroactivity. He said that a judge never makes a law but just finds it, so where is the question of retrospectivity; that the law was there, it was just to be found. This remained the position for about half a century. From 1902 onwards, there are over 50 judgments till date in which all the courts have unanimously accepted that when a court finds a statute is unconstitutional, that will take effect from the date of judgment, it cannot be accorded retrospective implication. Because what has been done in the past cannot be wiped out. The US Supreme Court has said that a legislation is not a piece of waste paper, it is a law which has been passed by the legislature and the citizens are bound to obey it, that it cannot be said that tomorrow it may be declared unconstitutional. So that means that if that unconstitutionality takes effect retrospectively, then the citizens are following the law at their own peril. So that theory of Blackstone was totally discarded throughout the world"Justice Kaul: "That is a rather expanded interpretation of it. Suppose the law is declared unconstitutional, the court can say the judgment will apply prospectively. If that law is not supposed to exist in the statute books and is obliterated, can one say that the protection, or prosecution, of that law, till it is obliterated, will survive?Dr. Kishore: "Many persons who were alleged to be corrupt or alleged to be taking a bribe, were not investigated because the approval was not given. So how can the law become retrospective? How will they be prosecuted? The General Clauses Act is very clear that...

Whether Striking Down of a Provision Granting Immunity from Arrest Would Have Retrospective Application? Supreme Court CB Commences Hearing

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