Probe staff over joint secretary rank sans approval: SC

NEW DELHI: The Supreme Court ruled on Monday that Central government officers at the rank of joint secretary and above can be investigated and prosecuted in corruption cases without requiring prior approval from authorities, and this rule applies retrospectively from September 11, 2003. A five-judge Constitution bench, led by Justice Sanjay Kishan Kaul, unanimously held that its 2014 verdict, which had invalidated a provision of the Delhi Special Police Establishment (DSPE) Act, 1946 that provided immunity to such officers in corruption cases, would have a retrospective effect.

The top court clarified that the 2014 judgment would take effect from September 11, 2003, the date when section 6(A) of the DSPE Act, which pertained to the Central government's approval for conducting inquiries or investigations, was inserted into the DSPE Act. In its May 2014 judgment, the Supreme Court had declared Section 6A(1) of the Act invalid and noted that the protection in Section 6A had the potential to shield corrupt officials.

On Monday, the Supreme Court delivered its verdict on whether striking down the immunity-granting provision would apply retroactively, considering the rights protected under Article 20 of the Constitution, which provides protection regarding convictions for offences.

"The declaration made by the Constitution bench (in May 2014) in the case of Subramanian Swamy will have retrospective operation. Section 6(A) of the DSPE Act is held to be not in force from the date of its insertion, that is September 11, 2003," said the bench, which also included Justices Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari.

Justice Nath, while pronouncing the verdict, outlined three key questions considered by the bench: whether Section 6 (A) of the DSPE Act forms part of the procedure or introduces a conviction or sentence; whether Article 20 (1) of the Constitution is relevant in the context of declaring Section 6 (A) of the DSPE Act unconstitutional; and whether the declaration of Section 6 (A) of the DSPE Act as unconstitutional and violative of Article 14 of the Constitution would apply retroactively or prospectively.

Justice Nath concluded that Section 6(A) of the DSPE Act only constitutes a procedural protection for senior government servants and does not establish a new offence or sentence. He clarified that Article 20 (1) of the Constitution has no applicability to the validity or invalidity of Section 6 (A) of the DSPE Act.

The Supreme Court had reserved its verdict on this issue on November 2 of the previous year. In March 2016, a two-judge bench of the apex court had referred the matter to a larger bench.

The issue arose during the Supreme Court's consideration of an appeal against a Delhi High Court order. The High Court had issued the order while hearing a plea by a man, the chief district medical officer, who was accused of demanding a bribe and was arrested by the CBI. The individual had challenged his arrest on the grounds that it was pre-planned and did not fall under the exception provided in Section 6A(2) of the DSPE Act, which states that prior approval is not required if an arrest is made on the spot while accepting or attempting to receive a bribe. The High Court had directed the CBI to seek the Union government's approval for a fresh investigation in the case.