Introduction
On 11.09.2023, the Hon'ble Supreme Court ('the SC') of India delivered a landmark judgment addressing the retrospective effect of declaring a law unconstitutional. This case[i] revolved around a constitutional challenge to s. 6A of the Delhi Special Police Establishment Act, 1946, (‘DSPE Act’). S. 6A mandated prior approval from the Central Government for the Central Bureau of Investigation (‘CBI’) to conduct inquiries or investigations into alleged offences committed by public servants of the Joint Secretary level and above, under the Prevention of Corruption Act, 1988 (‘PCA’).
The SC declared that the previous ruling by the Constitution Bench in Subramanian Swamy v. CBI[ii], which had declared s. 6A of the DSPE Act unconstitutional, would apply retrospectively rather than prospectively.
The SC emphasized that when a law is declared unconstitutional, it is void ab initio, unenforceable, and non est. This implies that the law is considered never to have existed and possesses no legal validity or binding authority. The SC also clarified that s. 6A of the DSPE Act was purely procedural, offering protection to senior government servants without introducing new offences or penalties. Consequently, its retrospective application would not infringe upon a. 20 of the Constitution, which prohibits double jeopardy and retrospective criminalisation.
Brief Facts
This case originated from two writ petitions filed by Dr. Subramanian Swamy and the Centre for Public Interest Litigation (‘CPIL’), challenging the constitutionality of s. 6A of the DSPE Act. These petitions were referred to a Constitution Bench by a three-judge bench following the judgment in Vineet Narain v. Union of India[iii], which had struck down an earlier version of s. 6A, known as the single directive[iv], deeming it without legal sanction and contrary to the rule of law.
The Constitution Bench in Subramanian Swamy (supra) declared s. 6A of the DSPE Act unconstitutional on the grounds that it violated a. 14 of the Constitution by creating an unreasonable classification among public servants based on their status and rank, without any rational nexus with the objectives of the PCA or the DSPE Act. The SC also noted that s. 6A impeded the independence and autonomy of the CBI and undermined its credibility and effectiveness in combating corruption.
However, the Constitution Bench did not decide whether its declaration would have retrospective or prospective effect, given the provisions of a. 20 of the Constitution, which stipulate that no person shall be convicted of any offence except for the violation of a law in force, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence.
The case under consideration involved the CBI registering an FIR on 16.12.2004 for offences under the PCA and setting a trap to catch the accused while accepting a bribe. The accused sought discharge, arguing that the trap was set without the prior approval of the Central Government, as mandated by s. 6A of the DSPE Act. However, the Special Judge, CBI, rejected the discharge application. Still, the High Court ruled in favour of the accused, permitting reinvestigation, subject to Central Government approval. The CBI appealed, and this matter remained pending until 2014 when s. 6A(1) of the DSPE Act was declared unconstitutional.
Decision
The Constitution Bench held that the term ‘void’ in a. 13(2) of the Constitution implies that when a law is declared unconstitutional, it is void from the outset, rendering it unenforceable and non-existent. Consequently, the declaration of unconstitutionality applied retrospectively to s. 6A of the DSPE Act, making it void from its insertion in 2003.
The SC made a clear distinction between pre-Constitution and post-Constitution laws, underscoring that pre-Constitution laws become void from the commencement of the Constitution, while post-Constitution laws are void from their inception. A law declared unconstitutional serves no purpose, unlike pre-Constitution laws that operated for a period before becoming void. The SC affirmed that the retrospective effect of declaring a law unconstitutional extends to all post-Constitution laws found in violation of the Constitution.
The ruling clarified that s. 6A was a procedural provision, conferring protection on certain public servants without creating substantive rights or liabilities under the PCA. A. 20(1) of the Constitution does not prohibit the retrospective nullification of a procedural provision, as it pertains only to substantive law, not procedural law.
Furthermore, the SC rejected the argument that the retrospective application of its declaration would affect the finality of judgments or orders passed by the courts or authorities based on s. 6A. It held that such judgments or orders could be reopened or reviewed in accordance with the law if challenged on the grounds of violation of a. 14 of the Constitution.
The SC also dismissed the argument that the retrospective application of its declaration would cause undue hardship or prejudice to the public servants who had already benefitted from s. 6A. It held that such public servants could not claim any vested rights or legitimate expectations in a provision that was unconstitutional and discriminatory. The SC emphasized that the public interest in ensuring a fair, impartial, and effective investigation into corruption cases outweighed individual hardships or prejudices.
Analysis
This recent SC judgment carries significant implications, clarifying that when a law is declared unconstitutional, it becomes void ab initio, retroactively invalidated from its enactment. This distinction is crucial: pre-Constitution laws are void from the Constitution’s commencement, while post-Constitution laws are void from their inception. The precedent set by the Subramanian Swamy case is instrumental, leading to the retroactive declaration of s. 6A of the DSPE Act as unconstitutional, impacting related cases. This underscores the necessity of upholding fundamental rights and ensuring legal conformity with the Constitution.
Moreover, the judgment underscores the indispensable role of judicial review in protecting constitutional values and principles. It emphasizes that judicial review is an integral part of democracy and constitutionalism, firmly asserting the SC’s authority to strike down any law that contravenes constitutional provisions or fundamental aspects of the Constitution. This ruling marks a substantial stride in fortifying constitutionalism and the rule of law, upholding the supremacy of fundamental rights, and facilitating the fight against corruption.
Finally, the judgment underscores the enduring supremacy of the Constitution and the rule of law, affirming principles like equality before the law and the separation of powers. It also highlights the judicial creativity and activism of the SC in interpreting the Constitution, applying various methods and tools of constitutional interpretation, and invoking multiple constitutional doctrines to substantiate its decision. The SC’s judicious restraint in dealing with complex constitutional issues is evident, as it meticulously examines the scope of a. 20(1) of the Constitution and weighs the implications of its decision on various parties’ rights and interests against the backdrop of public interest and constitutional values.
End Notes:
[i] 2023 SC OnLine SC 1146
[ii] (2014) 8 SCC 682
[iii] (1998) 1 SCC 226
[iv] Single Directive No. 4.7(3)
Authored by Srishty Jaura, Advocate at Metalegal Advocates. The views expressed are personal and do not constitute legal opinion.