12 Sep 2023 4:43 AM GMT
A Supreme Court constitution bench on Monday(September 11) reiterated that any change in procedure after an offence is committed would not be unconstitutional on grounds of the bar on the retrospective application of ex post facto laws contained in Article 20(1) of the Constitution, since procedural matters were not covered by the said clause.
While holding that its 2014 judgment declaring Section 6A of the Delhi Special Police Establishment Act 1946 to be unconstitutional, will have a retrospective effect, the court analysed the contours of Section 6A, especially in the context of the protections safeguarded under Article 20(1) of the Indian Constitution. This verdict was delivered by a constitution bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath, and JK Maheshwari. The court had reserved its judgment in November last year after hearing arguments over the pivotal issue, i.e., whether its 2014 judgment in Subramanian Swamy v. Union of India striking down Section 6A(1) of the Delhi Police Special Establishment Act, 1946, which mandated central government sanction for investigations involving certain government officials, would retrospectively apply to pending cases. Answering the reference, the constitution bench has now ruled that its earlier decision will have a ‘retrospective operation’.
Other than holding that a person could be deprived of the immunity conferred statutorily owing to the retrospective operation of the 2014 judgment striking down the immunity-granting provision, the court also concluded that the struck-down Section 6A of the Delhi Special Police Establishment Act providing protection to certain categories of government servants was a part of the procedure only and did not introduce any new offence or enhance any punishment or sentence. Justice Nath, on behalf of the bench, writes –
After making this observation, the court proceeded to examine the relevance of Article 20(1) of the Constitution on the declaration of Section 6A as unconstitutional. This article bars an individual from being convicted or sentenced under an ex post facto law. In other words, no punishment would lie for an act that is not an offence at the time of its commission, although trial under a procedure different from the one in force at the time of the commission of an offence, or by a court different from the time when the offence was committed is not unconstitutional on account of violation of Clause (1) of Article 20. The second part of the clause states that a person can only be subjected to penalties prescribed under the law at the time when the offence was committed. Any additional or higher penalty prescribed by any law after the offence was committed cannot be imposed or inflicted, although the substitution of a penalty or sentence that is not higher or greater than the previous one or a modification of the rigours of criminal law are not prohibited. The court then observes –
In this connection, the court rejected the argument proposed by Senior Advocate Arvind Datar, who relied on the marginal note to argue that Section 6A offered immunity not just from conviction but also from inquiry, investigation, and trial and that such procedural safeguards formed a part of Article 20(1) –
Ultimately, the bench concluded that Article 20(1) would have no bearing on either the validity or invalidity of Section 6A of the DSPE Act since it was merely procedural in nature –
Other reports about the judgment can be read here.
Case Title : Central Bureau of Investigation v. Dr RR Kishore | Criminal Appeal No. 377 of 2007 and other connected matters
Citation : 2023 LiveLaw (SC) 770
Click here to read the judgment