Retrospective Effect of Judgement on Section 6A of the DSPE Act

The Delhi Special Police Establishment (DSPE) Act, 1946 is an Act of the Parliament of India that provides for the establishment of the Delhi Special Police Establishment (DSPE), which is a specialized federal agency responsible for investigating corruption and other serious crimes committed by public servants. Section 6A of the DSPE Act, as it originally stood, mandated that the CBI could not investigate any public servant from the Joint Secretary level or above without prior sanction from the central government.

This provision was challenged in the Supreme Court in the case of Subramanian Swamy v. Union of India.  The Supreme Court, in its judgment, held that Section 6A of the DSPE Act was unconstitutional as it violated the fundamental right to equality guaranteed under Article 14 of the Constitution of India. The Court also held that the declaration of unconstitutionality would have retrospective effect, meaning that it would apply to cases pending before the Court and those already decided. This decision of the 2014 judgment was a landmark decision by the Supreme Court of India that struck down Section 6A of the Delhi Special Police Establishment (DSPE) Act, 1946. Section 6A of the DSPE Act mandated that the CBI could not investigate any public servant from the Joint Secretary level or above without prior sanction from the central government.

The 2014 judgment was a major victory for anti-corruption activists, who had long argued that the government was using Section 6A of the DSPE Act to protect corrupt officials from the investigation. The judgment also gave the CBI a much-needed boost in its fight against corruption. Here are some of the key points of the 2014 judgment:

• Section 6A of the DSPE Act violated the fundamental right to equality guaranteed under Article 14 of the Constitution of India.
• The declaration of unconstitutionality would have a retrospective effect, meaning it would apply to cases pending before the Court and those already decided.
• The CBI is now free to investigate any public servant, regardless of rank, without the need for prior sanction from the government.
• The Supreme Court has significantly impacted public servants who were investigated under Section 6A of the DSPE Act before the 2014 judgment. These public servants are now free from the requirement of prior sanction for CBI investigations, and they can be investigated without any fear of being prejudiced by the government.

The central Government reintroduced the concept of a single directive through the Central Vigilance Commission (CVC) Act in 2003. It provided the CVC’s legal status to carry out the previous provision through which the central Government could exercise its antecedent permission given to the CBI.

In this case, the petitioners challenged the constitutional validity of section 6A and section 26(c) of the CVC Act. They filed these two together because the latter led to the insertion of section 6A of the previous act in September 2003. The then law minister, Arun Jaitley, had supported the people in the decision-making position. He said that the people for whom the CBI needed special permission were essential, and protecting them from frivolous complaints was necessary. The contention was that the mentioned provision could be deemed responsible for breaching the rule of law by affording specific privileges to particular groups of dignitaries, thus creating discrimination against others. The court ruled in the affirmative; it stated that the provision violated the constitutional provisions envisaged under Article 14.

In 2014, the Supreme Court ruled that all public servants, regardless of rank, should be equally subject to investigation by the Central Bureau of Investigation (CBI). However, the Court did not specify whether this ruling would apply to cases under investigation.

A constitution bench was subsequently constituted to address this question. The bench has now ruled that the 2014 judgment will have retrospective effect, meaning that it will apply to cases pending before the Court and those already decided. The Court clarified that Section 6A of the Delhi Special Police Establishment (DSPE) Act, which required the CBI to obtain prior sanction from the government before investigating public servants of the Joint Secretary level or above, will be considered as never having been in force. The bench also noted that it has not decided on any case or appeal on merits. This means that the CBI will still need to prove the accused’s guilt before they can be convicted.

“The judgment in Subramanian Swamy will have retrospective effect. We have not decided the other issues or heard the appeals on merits which respective benches will hear,” the Court said.

The Supreme Court Constitution Bench considers whether a person can be deprived of any immunity conferred by law if a court retroactively strikes that immunity. This issue was referred to a five-judge bench of the Supreme Court in 2016. The case stems from an arrest made under the Delhi Special Police Establishment Act, 1946, without prior sanction, which violated Section 6A of the Act. Section 6A mandated that the Central Bureau of Investigation (CBI) obtain prior sanction from the government before investigating an officer of the rank of Joint Secretary and above in corruption cases.

The Delhi High Court ruled that since the CBI had initiated the investigation before the arrest, the exception contained in Sub-section (2) of Section 6A for spot arrests would not apply. Accordingly, the high court directed the CBI to seek central government approval for reinvestigation. The CBI challenged this decision in the Supreme Court in 2007. However, while the matter was being heard, Section 6A was declared unconstitutional in Subramanian Swamy (2014). This meant that the CBI could now investigate officers of the Joint Secretary level and above without prior sanction from the government. However, the application of this ruling to pending cases remained unclear. This is why the issue was referred to a constitutional bench in the current case. Here are some of the implications of the Supreme Court’s decision:

• It will make it easier for the CBI to investigate corruption cases involving senior government officials.
• It will convey that no one is above the law, regardless of rank or position.
• It could deter corrupt officials from engaging in wrongdoing.
• It could restore public trust in the government.

The retrospective application of the struck-down Section 6A of the Delhi Special Police Establishment (DSPE) Act, with its prior approval requirement for investigating high-profile bureaucrats, can be seen as beneficial for several reasons:

• Accountability and Transparency: Retrospectively applying this provision allows for a review of past corruption cases that may have been hindered by the requirement for prior approval. It ensures that those who may have escaped investigation due to this provision can now be held accountable for their actions.
• Equal Treatment: The retrospective effect ensures that all individuals, regardless of the timing of their alleged corrupt activities, are subject to the same legal standards. This promotes fairness and consistency in the application of the law.
• Deterrence Against Corruption: The prospect of retrospective application serves as a strong deterrent against corruption among high-ranking officials. Knowing that past actions may still be subject to investigation can discourage corrupt practices.
• Public Trust: Retroactively addressing corruption cases involving senior bureaucrats enhances public trust in the justice system. It demonstrates a commitment to combating corruption at all levels of Government.

However, ensuring that the retrospective application is carried out judiciously is essential; respecting due process and protecting individuals’ rights is essential. Balancing accountability with fairness is crucial to maintaining the integrity of the legal system.

After hearing the oral arguments, the five-judge bench reserved its verdict in November 2022. The Supreme Court’s decision on this issue will significantly impact the fight against corruption in India. If the Court rules that a person can be deprived of immunity retroactively, it will make it easier for the CBI to investigate corruption cases involving senior government officials. This could deter corrupt officials from engaging in wrongdoing and help to restore public trust in the government. However, if the Court rules that a person cannot be deprived of immunity retroactively, it could make it more difficult for the CBI to investigate corruption cases. This could lead to impunity for corrupt officials and undermine the fight against corruption.

The Supreme Court’s decision on the retrospective effect of its judgment striking down Section 6A of the DSPE Act is a complex and important issue with far-reaching implications for the fight against corruption in India. The Court’s decision could make it easier for the CBI to investigate corruption cases involving senior government officials. Still, it could also lead to impunity for corrupt officials if it is ruled that a person cannot be deprived of immunity retroactively. The Court’s decision will be announced in the coming months, and legal experts and anti-corruption activists will closely watch it.

In the meantime, the thread has raised important questions about the balance between the need to protect the rights of individuals and the need to hold corrupt officials accountable. It has also highlighted the challenges of fighting corruption in India, where powerful vested interests often try to protect themselves from investigation and prosecution. The above statements have also shown the importance of independent and impartial institutions like the Supreme Court in upholding the rule of law and ensuring that everyone is equal before the law, regardless of their rank or position. The Supreme Court’s decision on this issue will be a significant milestone in the fight against corruption in India. It is a decision that will have a lasting impact on the country’s legal and political landscape.