Keywords: Delhi Special Police Establishment Act (DPSE), Prevention of Corruption Act, Central Bureau of Investigation (CBI).
In the recent judgement of the Supreme Court it was held that the Section 6A of Delhi Special Police Establishment Act 1946 has retrospective effect which means it is void ab initio that is unenforceable from its insertion.
This section deals with the approval of the central government required to conduct inquiry in the offences mentioned in the Prevention of Corruption Act, 1988. This section was declared unconstitutional by the Supreme Court in its 2014 judgement of Subramanian Swamy v. Union of India.
In Central Bureau of Investigation v. Dr RR Kishore 2007, an arrest of an officer of the rank of joint secretary in a corruption case was made without prior government approval taken by the Central Bureau of Investigation (CBI) thereby inviting legal action in violation of Section 6A of DPSE Act 1946. Accordingly the High Court ordered for the establishment of approval of the central government for reinvestigation by CBI. The matter was challenged by the CBI in the Supreme Court in 2007 meanwhile Section 6A was declared unconstitutional in Subramanian Swamy v. Union of India 2014. The five judge bench reserved its verdict in November 2022 after oral hearing as the application to the ruling remained unclear.
Justice Nath orally pronounced the judgement on behalf of the bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath, and JK Maheshwari and gave the following conclusions:
1. The annulment of section 6A of Delhi Special Police Establishment Act was part of the procedure only and did not constitute any new offence or sentence.
2. Article 20(1) of the Indian Constitution has no effect on the validity or invalidity of the unconstitutionalised Section 6A.
3. The declaration made by the constitutional bench will have a retrospective effect and this section is held unenforceable from the date of its insertion that is 11.09.2003.
Written by Shubhi Yadav , College UILS, PU , As an intern under Legal Vidhiya.
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