The Supreme Court on Monday said that its 2014 ruling, removing the immunity to central government employees at the joint secretary level and above from probe in corruption cases, “will apply retrospectively” and that no such employee can demand a protection from coercive measures for the period between September 2003 – when the impugned law was framed, and May 2014 – when it was struck down.
A constitution bench, headed by justice Sanjay Kishan Kaul, declared that Section 6A of the Delhi Special Police Establishment (DSPE) Act “is held to be not in force from the date of its insertion – September 11, 2003”.
The bench, which also comprised justices Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari, further clarified that Section 6A was a procedural provision and that the 2014 decision on its validity had nothing to do with the applicability of Article 20(1), which lays down that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the alleged act.
The central question before the bench related to the applicability of Section 6A in DSPE Act, which required an investigating agency to go to the government to seek approval for the probe against public servants.
Section 6A of the DSPE Act mandated the government’s prior sanction to proceed in corruption cases against officers of the rank of joint secretary and above. However, an exception provided in Section 6A(2) states that no approval is necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept a bribe.
Section 6A of the DSPE Act was added in September 2003 through Section 26 of the Central Vigilance Commission Act (CVCA) when the NDA was in power. The then law minister, Arun Jaitley, had defended the provision in Parliament during a debate on the Central Vigilance Commission Bill. Jaitley said that those in decision-making positions, who must exercise discretion, and those who have to take vital decisions, needed to be protected against frivolous complaints.
In 2014, a five-judge constitution bench struck down Section 6A of the DSPE Act, ruling that “status or position” cannot shield an officer of the level of joint secretary and above from unconstrained probe by the CBI in cases of corruption. This bench termed Section 6A a “discriminatory” provision that “impedes tracking down the corrupt senior bureaucrats”. The court had at the time said that “the protection in Section 6A has propensity of shielding the corrupt”, adding the provision “suffers from the vice of classifying offenders differently for treatment thereunder for inquiry and investigation of offences, according to their status in life”.
The petitioner in the present case, Dr RR Kishore, was arrested by the CBI in 2004 for allegedly accepting a bribe. Kishore, at the time, was a chief district medical officer in Delhi and thus, holding the rank of a joint secretary-level officer. He had subsequently challenged the arrest in the Delhi high court, citing lack of sanction from the competent authority to arrest him. The high court, in 2006, held that the arrest was illegal since prior approval from the Union government was not obtained by CBI. At the same time, the high court allowed CBI to conduct a fresh investigation after seeking the government’s approval. In 2007, CBI challenged this order in an appeal.
While the matter remained pending in the top court, the 2014 ruling came that did away with the requirement of prior sanction for investigating charges against the central government employees at the joint secretary level or above.
When CBI’s appeal against Kishore came up before a two-judge bench in March 2016, it was noted that the 2014 judgment by the constitution bench did not mention if the ruling would apply retrospectively or prospectively. Therefore, the matter was again referred to a five-judge constitution bench to clarify whether the 2014 decision meant that officials with cases pending against them could be deprived of their immunity retrospectively.
Meanwhile, in 2018, the central government brought an amendment to the Prevention of Corruption Act, 1988, by adding Section 17A, extending the immunity from prosecution without prior sanction even to retired government officers.
Arguing in person before the constitution bench, Kishore contended that after Section 6A was struck down by the Supreme Court, the protection was reinstated by the legislature in 2018 and hence, the legal protection still continues.
CBI, on its part, opposed Kishore’s plea, arguing that Section 17A of the PC Act was not intended as a replica of Section 6A DSPE Act. Countering Kishore’s submission that the protection should be considered to be applicable in a way that it was never struck down in view of the 2018 amendment, the agency argued that such an interpretation could open floodgates of litigation.
The Constitution bench judgment on Monday means that there would be no protection to the public servants on the premise of a sanction under Section 6A in pre-2014 cases.
(Courtesy:- Hindustan Times, 11 September 2023)
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