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2014 Verdict: Retroactive Impact on DSPE Act Immunity.

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• GS 2: Statutory, Regulatory, and various Quasi-judicial Bodies.
• Tags: #DPSEAct #CBI #SubramanianSwamy #UPSC #CurrentAffairs.

Why in the News?

The Supreme Court has ruled that its 2014 verdict, which struck down a provision in the Delhi Special Police Establishment (DSPE) Act requiring central government sanction to prosecute officers of the rank of Joint Secretary and above, will have retrospective effect from September 11, 2003.

Subramanian Swamy vs Union of India 2014

• In a significant ruling, a five-judge Constitution bench, led by Justice S K Kaul, has declared that its 2014 judgment in the Subramanian Swamy vs. Union of India case, which invalidated Section 6A (1) of the DSPE Act, will have a retrospective effect.
• The core question before the bench, was whether a constitutional court’s declaration of a law as unconstitutional should apply retroactively or prospectively.

Section 6A (1)

Section 6A (1), requires approval of the central government to conduct any inquiry or investigation into any offense alleged to have been committed under the Prevention of Corruption Act, 1988 Where such allegation relates to

• the employees of the central government at the level of Joint Secretary and above,
• such officers as are appointed by the central government in corporations established by or under any Central Act government companies, societies, and local authorities owned or controlled by the government.

In its 2014 judgment, the court said Section 6A (1) is invalid and violative of Article 14 of the Constitution.

Retroactive vs. Prospective Application of Unconstitutional Laws

The bench came to the conclusion that, in accordance with Article 13(2) of the Constitution and relevant authoritative judgments,

• When a statute is found to be unconstitutional for breaching Part III of the Constitution, it becomes immediately null and void, unenforceable, and nonexistent.
• Therefore, the declaration regarding Section 6A of the DSPE Act in the Subramanian Swamy case will have a retrospective impact, rendering the section ineffective from the date of its insertion, i.e., September 11, 2003.
• According to Article 13(2), “the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall be void to the extent of the contravention.”

Section 6A of DSPE Act and Article 20(1)

• The bench stated that Section 6A of the DSPE Act only functions as a safeguard for senior government employees.
• As a result, it won’t be in violation of Article 20(1) of the Constitution because it neither creates a new offense nor strengthens the punishment or term.
• According to Article 20 (1), no person shall be found guilty of an offense unless they violated a law that was in effect when the Act in question was committed, nor shall they face a penalty that is greater than what would have been allowed under the law that was in effect at the time the offense was committed.

History of Safeguards for Government Servants

Single Directive

• In 1969, the central government introduced the Single Directive, a set of guidelines given to the Central Bureau of Investigation (CBI) by various ministries and departments.
• This directive outlined the procedures for initiating inquiries or registering cases against specific categories of civil servants.
• It mandated prior sanction from a designated authority before launching investigations against government officers, public sector undertaking employees, and nationalized bank officials above a certain rank.

Invalidation of Single Directive

• However, the Supreme Court, in its December 18, 1997 judgment in the Vineet Narain case, declared Directive No.4.7(3) invalid.
• The court found fault with the requirement of prior sanction as per Single Directive No.4.7(3).

Temporary Reintroduction of Sanction Requirement

• Subsequently, the government introduced a similar requirement through an ordinance on August 25, 1998.
• This provision lasted until October 27, 1998, when it expired.

Introduction of Section 6A in the DSPE Act

• In 2003, Section 6A was added to the Delhi Special Police Establishment (DSPE) Act, resembling the provisions of the Single Directive.
• However, the validity of Section 6A was challenged and ultimately declared invalid by a Supreme Court judgment in 2014.

Introduction of Section 17A in the Prevention of Corruption Act

• Despite these setbacks, Parliament introduced Section 17A in the Prevention of Corruption Act, 1988, effective from July 26, 2018.
• This provision continued to require prior sanction before prosecuting government servants but without any classification or differentiation among government employees.
• All government servants, regardless of category, class, or rank, were provided protection under Section 17A of the PC Act, 1988.

Impacts of SC Judgment

Positive Impacts

• Easier Investigations: The Supreme Court’s 2014 judgment striking down Section 6A of the DSPE Act streamlines corruption investigations against senior government officials by removing the need for prior central government sanction.
• Message to Corrupt Officials: The ruling sends a powerful message that corrupt officials are not above the law, fostering a sense of accountability.
• Empowered Activists and Lawyers: Anti-corruption activists and lawyers are emboldened to challenge the immunity of senior officials, promoting transparency.
• Increased Investigations: More cases against senior government officials are likely to be investigated as bureaucratic obstacles are reduced.
• Higher Conviction Rates: A streamlined process and reduced political interference could result in higher conviction rates for corruption charges.
• Public Confidence: Improved investigation and prosecution processes may boost public confidence in the CBI’s anti-corruption efforts.
• CBI Independence: The CBI may gain greater independence from the central government in deciding which cases to pursue.

Negative Impacts

• Quality of Investigations: There is a concern that investigations might suffer in cases where the CBI lacks central government support, potentially compromising the quality of inquiries.
• Politicization of CBI: The central government’s newfound authority to choose which corruption cases the CBI will investigate may lead to the politicization of the agency.
• Rise in Frivolous Complaints: The Supreme Court’s judgment may encourage more frivolous complaints against senior government officials due to the easier investigative process.
• Resource Diversion: A surge in such complaints could potentially overwhelm the CBI, diverting its resources from more critical and substantial corruption cases.

Supreme Court’s 2014 judgment striking down Section 6A of the DSPE Act is a positive step forward in the fight against corruption in India. It empowers the CBI to investigate senior government officials and sends a strong message against corruption. However, addressing corruption comprehensively requires improvements in the judicial system and stronger anti-corruption laws. Continued efforts and reforms are essential for lasting change.

Source: Indian Express, The Hindu.

Mains Question

Explain the significance of the Supreme Court’s ruling on the retrospective effect of the DSPE Act provision in the context of government officials’ prosecution?