CBI versus R.R. KISHORE

Summary

The Constitution Bench held that invalidation of Section 6A of the DSPE Act operates retrospectively from its insertion on 11 September 2003. Its prior-approval protection was procedural: removing it neither created an offence nor enhanced punishment, so Article 20(1) did not apply. As a post-Constitution provision violating fundamental rights, it was void from inception under Article 13(2). The Bench answered the reference and returned the individual appeals for merits adjudication without deciding their other issues.

Issues

1. Whether Section 6A’s approval requirement attracted Article 20(1) protection.
2. Whether the 2014 declaration of unconstitutionality operated retrospectively.
3. Whether repeal savings preserved the approval protection.

Provisions considered

• Section 6A, Delhi Special Police Establishment Act, 1946The prior-approval requirement was a procedural safeguard, not a provision creating offences or punishment. Its invalidation operates from the provision’s insertion on 11 September 2003. (¶¶ 6, 16.3, 20, 21, 23, 24, 36, 43)
• Article 20(1), Constitution of IndiaThe guarantee prohibits retrospective criminalisation and increased punishment, not the procedural change involved here. Section 6A neither defined a new offence nor enhanced a sentence. (¶¶ 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 36)
• Article 13(2), read with Article 14, Constitution of IndiaSection 6A was a post-Constitution law invalidated for violating Article 14. The declaration rendered it void from inception, rather than only from the date of judgment. (¶¶ 21, 37, 38, 39, 40, 41, 42, 43)
• Section 6, General Clauses Act, 1897Savings consequent on legislative repeal did not apply to judicial invalidation of an unconstitutional provision. (¶ 32)

Held

• Section 6A only restricted inquiry and investigation against specified senior public servants pending approval. It did not decriminalise corruption, create an offence or alter punishment, and was therefore procedural for the question referred. (¶¶ 16.3, 20, 23, 24)
• Article 20(1) protects against conviction for conduct not criminal when committed and against a greater later penalty. A different trial procedure or forum is not by itself prohibited, without prejudice to objections based on other fundamental rights. The approval safeguard here did not attract that protection. (¶¶ 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 36)
• The General Clauses Act’s repeal savings did not preserve Section 6A: the case concerned a constitutional declaration of invalidity rather than repeal or revival by legislation. (¶ 32)
• The post-Constitution provision’s invalidity under Part III rendered it void ab initio under Article 13(2). The Subramanian Swamy declaration accordingly operated retrospectively, and Section 6A was not in force from 11 September 2003. (¶¶ 37, 38, 39, 40, 41, 42, 43)
• The Constitution Bench confined itself to the reference. It did not adjudicate the individual appeals’ merits or collateral issues raised by the parties; those matters were to return to an appropriate Bench. (¶¶ 15, 44, 45)

Result

Reference answered: Section 6A invalid from its insertion on 11 September 2003; Article 20(1) does not prevent that result. Individual matters directed to be placed before the appropriate Bench for merits adjudication.