Striking Down of Section 6A DSPE Act Operates Retrospectively from 2003; Article 20(1) Not Attracted: Constitution Bench

In December 2004 the CBI registered an FIR under the Prevention of Corruption Act, 1988 and laid a trap in which the respondent allegedly accepted a bribe (para 2). The Delhi High Court held that the investigation needed prior approval under Section 6A(1) and left reinvestigation to that approval, and the CBI appealed in 2007 (para 2). During its pendency, Subramanian Swamy declared Section 6A(1) invalid under Article 14 without deciding whether the declaration was retrospective (paras 2-3). In 2016 this Court referred that question to a larger Bench in the context of Article 20 (paras 5-6). A connected appeal from the Bombay High Court's refusal to quash a 2010 FIR also turned on Section 6A (para 9).

Section 6A creates no offence and fixes no sentence; it is only a procedural protection for senior government servants (paras 23-24). Article 20(1) prohibits conviction or sentence under an ex post facto law, not a trial under a different procedure (para 27). Since Rao Shiv Bahadur Singh in 1953 a change in procedure after the offence has not attracted Article 20(1), and the marginal note cannot stretch the Article to procedure (para 35). Article 20(1) thus has no bearing on the validity or invalidity of Section 6A (para 36). Section 6 of the General Clauses Act does not apply because the case involves a judicial declaration of invalidity, not a repeal (para 32). Section 6A fell for its classification of officers under Article 14, not for want of legislative competence (para 37). A post-Constitution law that contravenes Part III is void under Article 13(2) (para 41). Drawing on Deep Chand, Mahendra Lal Jaini and State of Manipur, the Court treated such a law as void ab initio, still born and non est (paras 42-43). The other issues and the merits were left undecided (para 44).