2014 verdict will have retrospective effect, senior officers to lose immunity in corruption cases: SC

New Delhi: Central government officers of the level of joint secretary and above can be probed and prosecuted without prior nod of the authorities in corruption cases with retrospective effect from September 11, 2003, the Supreme Court held on Monday.

A five-judge Constitution bench headed by Justice Sanjay Kishan Kaul, in a unanimous verdict, ruled that its 2014 verdict, which had struck down a provision of the Delhi Special Police Establishment (DSPE) Act, 1946 providing immunity to such officers in graft cases, will have retrospective effect.

The top court said the 2014 judgement will come into effect from September 11, 2003 when section 6(A) of the DSPE Act, which pertained to approval of the central government to conduct inquiry or investigation, was inserted into the DSPE Act.

In its May 2014 judgement, the apex court had held as invalid the section 6A(1) of the Act and observed that protection in section 6A has "propensity of shielding the corrupt".

On Monday, the top court delivered its verdict on the issue of whether the striking down of the provision granting immunity would have a retrospective effect in view of rights protected under Article 20 of the Constitution.

Article 20 of the Constitution provides for protection in respect of conviction for offences.

"Declaration made by the constitution bench (in May 2014) in the case of Subramanian Swamy will have retrospective operation. Section 6(A) of the DSPE Act is held to be not in force from the date of its insertion, that is September 11, 2003," said the bench, which also comprised Justices Sanjiv Khanna, A S Oka, Vikram Nath and J K Maheshwari.

While pronouncing the verdict, Justice Nath said the bench has framed three questions to decide.

"Whether section 6 (A) of the DSPE Act is part of procedure or it introduces a conviction or a sentence? Whether Article 20 (1) of the Constitution will have any bearing or relevance in the context of declaration of section 6 (A) of the DSPE Act as unconstitutional?," Justice Nath said.

"The declaration of section 6 (A) of the DSPE Act as unconstitutional and violative of Article 14 of the Constitution would have a retrospective effect or would apply prospectively from the date of its declaration as unconstitutional?" he said while reading out the third question.

Answering the questions, Justice Nath said section 6(A) of the DSPE Act is a part of the procedure only in the form of a protection to senior government servants and does not constitute any new offence or sentence.

"Article 20 (1) of the Constitution has no applicability either to the validity or invalidity of section 6 (A) of the DSPE Act," he said.

The bench had reserved its verdict on the issue on November 2 last year.

In March 2016, a two-judge bench of the apex court had referred the issue to a larger bench.

"The provisions of section 6A(1) do indicate that for officers of the level of joint secretary and above a kind of immunity has been provided for. 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, is the moot question that arises for determination in the present case," the top court had said while referring the matter to a larger bench.

The question had cropped up when the top court was dealing with an appeal filed against an order of the Delhi High Court.

The high court had passed the order while hearing a plea by a man, who was the chief district medical officer, and was accused of demanding a bribe. The CBI had arrested him while allegedly accepting bribe.

He had challenged his arrest on grounds that it was meticulously pre-planned, and did not enjoy the exception under section 6A(2) of the DSPE Act.

Section 6A(2) of the Act states that prior approval is not required if an arrest is made on the spot while accepting or attempting to receive a bribe.

The high court had asked the CBI to seek the Union government's approval to conduct fresh investigation in the case.