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Striking down ‘Section 6A’ of DSPE Act is retrospective: SC

Published: 14th Sep, 2023

Context

The Supreme Court ruled that its 2014 judgment in Subramanian Swamyvs Director CBI, which struck down Section 6A of the 1946 Delhi Special Police Establishment Act (DSPE Act), would have a retrospective effect. 

Background

  • The clause in question- Section 6A of the DPSE Act prescribed that the CBI should obtain prior sanctions to investigate corruption cases against an officer of the rank of joint secretary and above.
  • This provision was struck down as ‘unconstitutional’ in the 2014 judgment in the case Subramanian Swamy v. Union of India.
  • The Court had held that there cannot be any distinction between public servants.
  • The 2014 ruling had, however, not clarified what would happen to existing cases being probed by the central agency.
  • A constitution bench was, therefore, constituted to examinewhether the 2014 decision would affect existing corruption cases.

Key-highlights of the present ruling

Retrospective effect:

The retrospective law is a law that has backdated effect or is effective since before the time it is passed. The retrospective law is also referred to as ex post facto law.

  • The Constitution Benchhas now answered this question in the affirmative and held that the 2014 judgment would have retrospective effect.
  • However, in a 2014 decision, in the case of Subramanian Swamyvs Director CBI, the apex court struck down Section 6A (1) on the ground that it was violative of Article 14 (right to equality) of the Constitution of India.
  • Once a law is declared unconstitutional, violative of Part-III of the Constitution, then it would be held to be void ab initio, stillborn, unenforceable, and honest in view of Article 13(2) of the Constitution and its interpretation by authoritative pronouncements.
  • The Court clarified that Section 6A will be considered as never having been in force.

What does it mean?

  • This means that the CBI no longer needs to seek prior permission from the government to investigate or prosecute cases filed before 2014, the date when the provision was declared unconstitutional by the Supreme Court.
  • This verdict is likely to have a significant impact on corruption and other criminal cases initiated against government servants between 2003 and 2018 when the provision of Section 17A of the Prevention of Corruption Act came into force.

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