Whether A Judgment Striking Down A Provision Granting Immunity From Arrest Has Retrospective Application? Supreme Court Reserves Judgment

The Supreme Court on Wednesday reserved its judgment 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 heard SG Tushar Mehta, for the UOI, and ASG S. V. Raju, for the CBI. Earlier, the SG 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…"Court room exchangeSG Tushar Mehta: "The reference is on the ground that whether the deletion of the provision would affect article 20 or not. Article 20 says that if conviction is resulted from the law in force, it cannot be changed- whatever was the position at the time of commission of the offence should be the position, not any subsequent change in the penal provision. But that would not apply to procedural provisions. There is a binding precedent of a five-judge bench of this court which holds two things- that article 20 does not apply to procedural provisions, and secondly, for deciding the contours of article 20, US judgments are of no value"On Tuesday, Senior Advocate Arvind Datar had urged that the bench read section 6A of the DSPE Act as an immunity not just from conviction but also investigation, and that such procedural safeguards are a part of Article 20(1)Justice Kaul: "There being synergy on most of the issues on both sides, what is your apprehension"SG: "There are two apprehensions, I will not even attempt to be diplomatic about it. Section 6A was brought in force by the government to protect the officers of the level of joint secretary and up. Now that is set aside on the ground of discrimination, of classification within the class. Section 17A (the new provision) is couched in a different way and my apprehension is that 17A is again under challenge in a PIL on the ground that 17A is contrary to Subramanian Swamy. My request to your lordships is to accept my submission that 17A is different"Justice Kaul: "If a petition is pending challenging 17A, do we to foreclose all issues here? As a constitution bench, we have to be on the caution side. Otherwise, any stray observations, any going here and there creates a problem in the Constitution bench, because three-judges bench is bound"SG: "The country runs through the bureaucracy. Bureaucracy is not dead always, they give inputs, ideas and that the country progresses. The threat hanging, of a potential prosecution, resulted in a policy paralysis. Nobody was writing notes, accepting new ideas, they would go by the conventional thing that we may do this"Justice Kaul: "Yes, nobody will take decisions so long as (unclear)...where some decisions may go wrong, that is not the issue, but it should not be for malafide reasons or collateral considerations"SG: "17A is not a new avatar of 6A. We take risks at times in the decision-making process, take new ideas, give new ideas, advise the government…"Justice Kaul: "In a scenario where various issues are going on, stagnation is not the solution"SG: "So limited protection is given"Bench: "This is for the higher class of officers...

Whether A Judgment Striking Down A Provision Granting Immunity From Arrest Has Retrospective Application? Supreme Court Reserves Judgment

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