Supreme Court of India

CBIversusR.R. KISHORE

Citation: 2023 INSC 817
Decided: 11 September 2023
Disposal: Matter referred to larger bench
Bench: SANJAY KISHAN KAUL

Holding

Section 6A is a procedural safeguard, Article 20(1) does not apply, and the declaration of its unconstitutionality is retrospective, rendering it void ab initio.

Summary

The CBI registered a case against Dr. R.R. Kishore for alleged bribery under the Prevention of Corruption Act, 1988, but conducted the investigation without the prior approval of the Central Government required by Section 6A(1) of the Delhi Special Police Establishment Act, 1946. The Delhi High Court allowed the trial to continue, prompting the CBI to appeal. While the appeal was pending, a Constitution Bench in Subramanian Swamy v. CBI declared Section 6A unconstitutional for violating Article 14. The Supreme Court was asked to determine (i) whether Section 6A creates a conviction or merely a procedural safeguard, (ii) whether Article 20(1) applies to its invalidation, and (iii) whether the declaration operates retrospectively. The Court held that Section 6A is purely procedural, does not affect conviction or sentence, and therefore Article 20(1) is inapplicable. It further held that a law declared unconstitutional under Article 13(2) is void ab initio and its invalidity has retrospective effect, rendering Section 6A non‑existent from its insertion on 11 September 2003. The matter was remanded to the appropriate bench for disposal on merits.

Issues considered

Whether Section 6A of the DSPE Act is a procedural provision or creates a conviction or sentence
Whether Article 20(1) of the Constitution applies to the declaration of Section 6A as unconstitutional
Whether the declaration of unconstitutionality of Section 6A operates retrospectively or prospectively

Legislation cited

Central Vigilance Commission Act, 2003s. 26(c)
Constitution of Indias. Art.13(1), s. Art.13(2), s. Art.14, s. Art.20(1)
Delhi Special Police Establishment Act, 1946s. 6A(1), s. 6A(2)
General Clauses Act, 1897s. 6
Prevention of Corruption Act, 1988

Subjects

Section 6ADSPE Actex post factoArticle 20Article 13retrospective effectprocedural lawconstitutional validityimmunitycorruption investigation

Judgment

[2023] 13 S.C.R. 1 : 2023 INSC 817

CASE DETAILS

CBI
v.
R.R. KISHORE
(Criminal Appeal No. 377 of 2007)
SEPTEMBER 11, 2023
[SANJAY KISHAN KAUL, SANJIV KHANNA,
ABHAY S. OKA, VIKRAM NATH AND
J.K. MAHESHWARI, JJ.]
HEADNOTES
Issues for consideration:
Section 6A(1) of the Delhi Special Police Establishment Act, 1946
(DSPE Act) required approval of the Central Government to conduct
inquiry or investigation into any oﬀence alleged to have been committed
by senior Government oﬃ cers under the Prevention of Corruption Act,
1988; and provided a kind of immunity to such oﬃcers. Whether there
could be a deprivation of such immunity by a retrospective operation of
a judgment of the Court, in the context of Article 20 of the Constitution
of India, was the moot question that arose for determination in the
present case.
The question was whether the declaration made by a Constitution
Bench of the Supreme Court, in the case of Subramanian Swamy vs.
Director, Central Bureau of Investigation and another, that Section 6A
of the DSPE Act being unconstitutional, can be applied retrospectively in
context with Article 20 of the Constitution. The following three corollary
questions also arose for consideration namely: Whether Section 6A of the
DSPE Act was part of procedure or it introduced a conviction or sentence;
Whether Article 20(1) of the Constitution had any bearing or relevance in the
context of declaration of Section 6A of the DSPE Act as unconstitutional and
Whether the declaration of Section 6A of the DSPE Act as unconstitutional
and violative of Article 14 of the Constitution would have a retrospective
eﬀect or would apply prospectively from the date of its declaration as
unconstitutional.
1
2 SUPREME COURT REPORTS [2023] 13 S.C.R.

Delhi Special Police Establishment Act, 1946 (DSPE Act) – s.6A –
Nature of – A part of procedure or introduced a conviction or sentence.
Held: Section 6A of the DSPE Act does not lay down or introduce
any conviction for any oﬀence – It is a procedural safeguard only which
is enumerated in Section 6A of the DSPE Act with regard to making of an
investigation or enquiry of an oﬀence under the Prevention of Corruption
Act, 1988 – Section 6A of the DSPE Act also does not lay down any
sentence nor does it alter any existing sentence for an oﬀence – s.6A of
the DSPE Act is a part of the procedure only in the form of a protection to
senior government servants – It does not introduce any new oﬀence nor it
enhances the punishment or sentence. [Paras 23 and 24]
Constitution of India – Art.20 – Applicability of, in context of s.6A
of the Delhi Special Police Establishment Act, 1946.
Held: Article 20(1) of the Constitution has no applicability either to
the validity or invalidity of Section 6A of the DSPE Act. [Para 36]
Delhi Special Police Establishment Act, 1946 – s.6A – Declaration
of s.6A as unconstitutional – Whether would have a retrospective
eﬀect or would apply prospectively from the date of its declaration as
unconstitutional – Constitution of India – Art. 13(2) and Part III.
Held: Once a law is declared to be unconstitutional, being violative
of Part-III of the Constitution, then it would be held to be void ab initio,
still born, unenforceable and non est in view of Article 13(2) of the
Constitution and its interpretation by authoritative pronouncements – Thus,
the declaration made by the Constitution Bench in the case of Subramanian
Swamy will have retrospective operation – Section 6A of the DSPE Act is
held to be not in force from the date of its insertion i.e. 11.09.2003. [Para 43]
Constitution of India – Art.20(1) – Protection from retrospective
Ex post facto law – Explained.
Held: Sub-article (1) of Article 20 of the Constitution consists of two
parts – The ﬁrst part prohibits any law that prescribes judicial punishment
for violation of law with retrospective eﬀect. Sub-article (1) to Article 20
of the Constitution does not apply to civil liability, as distinguished from
punishment for a criminal oﬀence – Further, what is prohibited is conviction
CBI v. R.R. KISHORE 3

or sentence for any oﬀence under an ex post facto law, albeit the trial itself is
not prohibited – Trial under a procedure diﬀerent from the one when at the
time of commission of an oﬀence, or by a court diﬀerent from the time when
the oﬀence was committed is not unconstitutional on account of violation of
sub-article (1) to Article 20 of the Constitution – It may be diﬀerent, if the
procedure or the trial is challengeable on account of discrimination under
Article 14 of the Constitution or violation of any other fundamental right –
The right under ﬁrst part of sub-article (1) to Article 20 of the Constitution
is a very valuable right, which must be safeguarded and protected by the
courts as it is a constitutional mandate.[Paras 27 and 28]
Constitution of India – Art.13 – Word “void” – Interpretation and
meaning of – Words and Phrases.
Held: Under Article 13(1) all existing laws prior to the commencement
of the Constitution, insofar as they are inconsistent with the provisions of
Part-III, would be void to the extent of inconsistency – Further, according
to Article 13(2), the State is prohibited from making any law which takes
away or abridges the rights conferred by Part-III and further that any
law made in contravention of this clause would be void to the extent of
contravention – Article 13(2) prohibits making of any law so it would be
relating to laws made post commencement of the Constitution, like the case
at hand – In the present case, as it has been held that Section 6A of DSPE
Act is violative of Article 14 of Part III of the Constitution, as such, the
same would be void – The word “void” has been interpreted in a number
of Supreme Court judgments beginning 1951 till recently and it has been
given diﬀerent nomenclature such as ‘non est’, ‘void ab initio’ ‘still born’
and ‘unenforceable’. [Para 41]

LIST OF CITATIONS AND OTHER REFERENCES

Subramanian Swamy v. Director, Central Bureau of Investigation and
another (2014) 8 SCC 682: [2014] 6 SCR 873 – clariﬁed.
Keshavan Madhava Menon v. The State of Bombay [1951] SCR 228;
Behram Khurshed Pesikaka v. The State of Bombay [1955] 1 SCR 613;
Rao Shiv Bahadur Singh and another v. State of Vindhya Pradesh [1953]
SCR 1188; The State of Manipur & Ors. v. Surjakumar Okram & Ors. 2022
4 SUPREME COURT REPORTS [2023] 13 S.C.R.

SCC Online SC 130; Mahendra Lal Jaini v. The State of Uttar Pradesh and
Others AIR 1963 SC 1019:[1963] 1 Suppl. SCR 912; Deep Chand v. The
State of Uttar Pradesh and Others [1959] 2 SCR Suppl. 8 and M.P.V.
Sundararamier and Co. v. The State of Andhra Pradesh & Another
[1958] SCR 1422 – relied on.
Sajjan Singh v. The State of Punjab [1964] 4 SCR 630; Union
of India v. Sukumar Pyne [1966] 2 SCR 34; Municipal Committee,
Amritsar and others v. State of Punjab and Others (1969) 1 SCC 475
: [1969] 3 SCR 447; I.C. Golaknath & Ors. v. State of Punjab and Anr.
[1967] 2 SCR 762; Managing Director, ECIL, Hyderabad and Others
v. B. Karunakar and Others (1993) 4 SCC 727 : [1993] 2 Suppl. SCR
576; M.A. Murthy v. State of Karnataka and Others (2003) 7 SCC
517 : [2003] 3 Suppl. SCR 327; Transmission Corporation of A.P. v.
C.H. Prabhakar and Others (2004) 5 SCC 551 : [2004] 2 Suppl. SCR
759; Hardeep Singh v. State of Punjab (2014) 3 SCC 92 : [2014] 2
SCR 1; H.N. Rishbud and Inder Singh v. The State of Delhi [1955] 1
SCR 1150; Fertico Marketing and Investment Private Limited and
Others v. Central Bureau of Investigation and Another (2021) 2 SCC
525 : [2020] 12 SCR 956; Rattiram and Others v. State of Madhya
Pradesh (2013) 12 SCC 316 : [2013] 2 SCR 1003; State of Karnataka
v. Kuppuswamy Gownder and Others AIR 1987 SC 1354 : [1987] 2
SCR 295; A.C. Sharma v. Delhi Administration (1973) 1 SCC 726 :
[1973] 3 SCR 477; Ashok Kumar Gupta and Another v. State of U.P.
and Others (1997) 5 SCC 201 : [1997] 3 SCR 269; Assistant Excise
Commissioner, Kottayam and Others v. Esthappan Cherian and Another
2021 (10) SCALE 308; Prabhu Dayal Deorah v. District Magistrate
(1994) 1 SCC 103; Mohan Lal v. State of Punjab (2018) 17 SCC 627
: [2018] 9 SCR 1006; Varinder Kumar v. State of Himachal Pradesh
(2020) 3 SCC 321 : [2019] 2 SCR 707; Rao Shiv Bahadur Singh v.
State of Vindhya Pradesh (1953) 2 SCC 111 : [1954] SCR 1098; T.
Barai v. Henry Ah Hoe, (1983) 1 SCC 177 : [1983] 1 SCR 905; Pratap
Singh v. State of Jharkhand (2005) 3 SCC 551 : [2005] 1 SCR 1019;
State of Bombay v. F.N. Balsara [1951] 1 SCR 682; Vineet Narain
and Others v. Union of India and Another (1998) 1 SCC 226 : [1997]
6 Suppl. SCR 595; State of West Bengal v. S.K. Ghosh [1963] 2 SCR
111; Rattan Lal v. State of Punjab [1964] 7 SCR 676; G.P. Nayyar v.
State (Delhi Administration) (1979) 2 SCC 593 : [1979] 2 SCR 816;
CBI v. R.R. KISHORE 5

Soni Devrajbhai Babubhai v. State of Gujarat and Others (1991) 4 SCC
298 : [1991] 3 SCR 812; and Securities and Exchange Board of India
v. Ajay Agarwal (2010) 3 SCC 765 : [2010] 3 SCR 70 - referred to.
Hopt v. People of the Territory of Utah 110 US 574 (1884); Duncan
v. State 152 US 377 (1894); Gibson v. Mississippi 162 US 565 (1896);
Thompson v. State of Missouri 171 US 380 (1898); John Mallett v. State
of North Carolina 181 US 589 (1901); John Rooney v. State of North
Dakota 196 US 319 (1905); Beazell v. State of Ohio Chatfield 269 US
167 (1925); Dobbert v. Florida 432 US 282 (1977); Smith et al v. Doe
et al 538 US 84 (2003); Kaiser Aluminium and Chemical Corporation
v. Bonjorno 494 US 827 (1990); Phillips v. Eyre (1870) LR 6 QB 1
and Calder v. Bull 1 L Ed 648 : 3 US (3 Dall) 386 (1798) – referred to.

OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
377 of 2007.
From the Judgment and Order dated 05.10.2006 of the High Court of
Delhi at New Delhi in CRLR No.366 of 2006.
With
Criminal Appeal No. 2763 of 2023.
Appearances:
Tushar Mehta, S.G., S.V. Raju, ASG, Arvind Datar, Amit Desai,
Arunabh Chowdhary, Sr. Advs., Ankur Talwar, Rajat Nair, Ashutosh
Ghade, Ms. Sairica S. Raju, Annam Venkatesh, Kanu Agrawal, Shreeyash
U. Lalit, Nakul Chengappa K.K., Shantnu Sharma, Madhav Sinhal, Pratyush
Srivastava, Bhuvan Kapoor, A.K. Sharma, Ankur Chawla, Bhanoo Sood,
Aamir Khan, Shivam Tandon, Rahul Unni Krishnan, Pranav Deish, Arush
Matlotia, Sarvesh Singh Baghel, Ms. Kalyani Lal, Jayant Mohan, Mohit
Gupta, Karan Kumar Gogna, Akshay Sahni, Ms. Pallavi Langar, Ms. Prerna
Mahajan, Ashish Jha, Himanshu Tyagi, Ashutosh Kumar Sharma, Ms. Harsh
Lata, Rahul Pratap, Advs. for the appearing parties.
Dr. R.R. Kishore, Respondent in Person.
6 SUPREME COURT REPORTS [2023] 13 S.C.R.

JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT
VIKRAM NATH, J.
Crl. Appeal No.377/2007.
1. This Constitution Bench has been constituted to consider whether
the declaration made by a Constitution Bench of this Court, in the case of
Subramanian Swamy vs. Director, Central Bureau of Investigation and
another1, that Section 6A of the Delhi Special Police Establishment Act,
19462 being unconstitutional, can be applied retrospectively in context with
Article 20 of the Constitution.
2. Necessary facts relevant for the purposes of this case are stated
hereunder:
2.1 The appellant-Central Bureau of Investigation3 after registering the
First Information Report at 02:00 pm on 16.12.2004 for oﬀences under the
Prevention of Corruption Act, 19884 laid a trap in the evening on the same
day wherein the respondent is said to have accepted bribe to set the things
right for the radiologist conducting Pre-Natal test to determine the sex of the
foetus in contravention of the Pre-natal Diagnostic Techniques (Regulation
and Prevention of Misuse) Act, 1994. The respondent applied for discharge,
inter alia, amongst others on the ground that the trap which was a part of
the enquiry/investigation had been laid without the previous approval of
the Central Government as provided under Section 6A of the DSPE Act.
2.2. The Special Judge, CBI, rejected the application for discharge
vide order dated 30.04.2006 which was carried in revision before the High
Court and was registered as Criminal Revision Petition No.366 of 2006.
Learned Single Judge of the High Court vide judgment dated 05.10.2006
framed three questions for consideration namely:

1 (2014) 8 SCC 682
2 In short ‘DSPE Act’
3 In short, “CBI”
4 In short “PC Act, 1988”
CBI v. R.R. KISHORE 7
[VIKRAM NATH, J.]

1. What is the background with regard to Section 6A of the DSPE Act?
2. Did the CBI acted in contravention of Section 6A(1)?
3. If yes, does it mean that the entire trial, consequent upon an illegal
investigation, is vitiated?
It answered question No.2 in favour of the respondent and further with
respect to question No.3 left it open for the competent authority to take the
decision and further proceed with reinvestigation and in case sanction is not
granted, to notify the Special Judge, CBI, to close the case. The operative
part of the order is in paragraph 29 of the judgment which is reproduced
hereunder:
“29. It follows that if, at the initial stage of trial, the illegality of
investigation is brought to the notice of the court and yet the Trial
Court continues with the trial then, such proceedings would be
liable to be set aside by the High Court in exercise of its revisional
jurisdiction. In this case, in view of the discussion above, it is clear
that the provisions of Section 6 A(1) of the Prevention of Corruption
Act, 1988 are mandatory and not merely directory. The investigation
carried out in contravention of such provisions is, therefore, clearly
illegal, in violation of a statutory requirement. The dismissal of the
discharge application moved on behalf of the petitioner means that
the trial would continue. This cannot be permitted in view of the
discussion above. Because, then the court would be turning a blind
eye and a deaf ear to the illegality in investigation which has been
brought to its notice at the earliest stage. However, it also does not
mean that the petitioner is entitled to a discharge and the closure of the
case against him. As pointed out in Rishbud’s case and Mubarak Ali’s
case, reinvestigation is to be ordered in the context of the provisions of
section 6A of the said Act. While the ﬁle is to be kept pending before
Special Judge, approval of the Central Government is to be sought
for investigation. If approval is accorded then the matter shall be
reinvestigated as per prescribed procedure and the material gathered
in such re-investigation shall be placed before the Special Judge for
further proceedings in accordance with law. If the approval is not
given by the Central Government, then the same shall be notiﬁed to
the Special Judge who shall then close the case.”
8 SUPREME COURT REPORTS [2023] 13 S.C.R.

2.3. The CBI, feeling aggrieved by the judgment of the Delhi High Court,
has preferred the present appeal substantially on the ground that Section 6A(2)
of DSPE Act would be applicable and not Section 6A(1) thereof. The High
Court erred in holding that Section 6A(1) was applicable.
2.4. The said appeal is pending since 2007. During the pendency
of the appeal Section 6A(1) of the DSPE Act was held to be invalid and
violative of Article 14 of the Constitution by a Constitution Bench vide
judgment dated 06.05.2014 in the case of Subramanian Swamy (supra).
Paragraph 99 of the said report which makes the above declaration is
reproduced hereunder:
“99. In view of our foregoing discussion, we hold that Section 6A(1),
which requires approval of the Central Government to conduct any
inquiry or investigation into any oﬀence alleged to have been committed
under the PC Act, 1988 where such allegation relates to: (a) the
employees of the Central Government of the level of Joint Secretary and
above, and (b) 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, is invalid and violative of Article 14 of the Constitution.
As a necessary corollary, the provision contained in Section 26(c) of
Act 45 of 2003 to that extent is also declared invalid.”
3. What the Constitution Bench did not decide was whether the
declaration of Section 6A(1) of the DSPE Act to be violative of Article 14 of the
Constitution would have retrospective eﬀect or it would apply prospectively.
4. The appeal was taken up on a number of occasions and argued from
both sides. Relying upon the judgments regarding retrospective or prospective
applicability of the said declaration, the appellant-CBI would submit that once
Section 6A(1) has been declared to be violative of Article 14, the judgment
of the High Court deserves to be set aside and the prosecution should be
allowed to continue with the proceedings from the stage of rejection of
discharge application. On the other hand, the respondent would submit that
the judgment in the case of Subramanian Swamy (supra) could not have
any retrospective operation and therefore, no fault could be found with the
judgment of the High Court and the appeal deserves to be dismissed.
CBI v. R.R. KISHORE 9
[VIKRAM NATH, J.]

5. At a particular stage, this Court felt that the Union of India should
be made a party and should be heard. It accordingly suo moto issued notices
vide order dated 27.04.2012 and the Union of India was required to ﬁle an
aﬃdavit. The Union of India ﬁled an aﬃdavit dated 05.10.2012. However,
the same was permitted to be withdrawn by order dated 29.01.2013.
Thereafter, the Union of India ﬁled another aﬃdavit in February, 2013.
The matter was thereafter taken up on 10.03.2016 when this Court, after
recording the submissions advanced by the rival parties and considering
the importance of the question and also the fact that the retrospectivity or
prospectivity of the judgment in the case of Subramanian Swamy (supra)
could only be dealt with by a Constitution Bench, directed that the matter
be placed before the Chief Justice of India on the administrative side for
constituting an appropriate Bench. Paragraph 7 of the order dated 10.03.2016
framed the question for determination and the same is reproduced hereunder:
“7. The provisions of Section 6A(1), extracted above, do indicate that
for oﬃcers of the level of Joint Secretary and above a kind of immunity
has been provided for. Whether there can be a deprivation of such
immunity by a retrospective operation of a judgment of the Court,
in the context of Article 20 of the Constitution of India, is the moot
question that arises for determination in the present case.”
6. As the order of reference also brieﬂy deals with the necessary facts
and also the reasons for referring the issue to the Constitution Bench, it would
be appropriate to reproduce the complete order dated 10.03.2016. It reads as
follows:
“1. A prosecution under the Prevention of Corruption Act, 1988 was
sought to be questioned by the respondent accused on the basis of
the provisions contained in Section 6A(1) of the Delhi Special Police
Establishment Act, 1946 which was brought in by an amendment in the
year 2003. Section 6A(1) of the Delhi Special Police Establishment Act,
1946 is in the following terms:
“6A. Approval of Central Government to conduct inquiry or
investigation.-(1) The Delhi Special Police Establishment shall
not conduct any inquiry or investigation into any oﬀence alleged
to have been committed under the Prevention of Corruption Act,
1988 (49 of 1988) except with the previous approval of the Central
10 SUPREME COURT REPORTS [2023] 13 S.C.R.

Government where such allegation relates to- (a) the employees
of the Central Government of the Level of Joint Secretary and
above; and (b) 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 that Government.”
2. The Delhi High Court before whom the challenge was brought
answered the question by holding that the respondent accused was
entitled to the beneﬁt of the said provision. Accordingly, the High Court
took the view that the matter required fresh consideration for grant
of previous approval under Section 6A(1) of the Delhi Special Police
Establishment Act, 1946. Aggrieved, the C.B.I. is in appeal before us.
3. We have heard the learned counsels for the parties as also the
respondent who appears in person.
4. The provisions of Section 6A(1) of the Delhi Special Police
Establishment Act, 1946 has been held to be unconstitutional being
violative of Article 14 of the Constitution of India by a Constitution
Bench of this Court in Subramanian Swamy versus Director, Central
Bureau of Investigation and another [(2014) 8 SCC 682]. The judgment
of the Constitution Bench is however silent as to whether its decision
would operate prospectively or would have retrospective eﬀect. Though
a large number of precedents have been cited at the Bar to persuade us
to take either of the above views, as would support the case of the rival
parties, we are of the considered view that this question should receive
the consideration of a Constitution Bench in view of the provisions of
Article 145(3) of the Constitution of India.
5. In fact, in Transmission Corporation of A.P. versus Ch. Prabhakar and
others [(2004) 5 SCC 551], the precise question that has arisen before
us had been referred to a Constitution Bench. Paragraphs 15 and 21
dealing with the said question read as follows:
“15. Whether constitutional guarantee enshrined in clause
(1) of Article 20 is conﬁned only to prohibition against conviction
for any oﬀence except for violation of law in force at the time of
commission of the act charged as an oﬀence and subjection to a
CBI v. R.R. KISHORE 11
[VIKRAM NATH, J.]

penalty greater than that which might have been inﬂicted under
the law in force at the time of commission of oﬀence or it also
prohibits legislation which aggravates the degree of crime or makes
it possible for him to receive the same punishment under the new
law as could have been imposed under the prior law or deprives
the accused of any substantial right or immunity possessed at the
time of the commission of the oﬀence charged is a moot point to
be debated.
(underlining is ours)
***
21. However, as the interpretation of Article 20 as to its
scope and ambit is involved in these proceedings, we refer the
question formulated in para 15 of this order to a larger Bench for
consideration.”
However, the Constitution Bench in Transmission Corporation of A.P.
versus Ch. Prabhakar and others [(2010) 15 SCC 200] declined to
answer the question as in the meantime there were certain amendments to
the statute in question and, therefore, the issues referred were understood
to have become academic. The very same issues have been cropped up
before us in the present proceedings.
6. We have considered it necessary to make the present reference for
the reason that in the case of Transmission Corporation of A.P. versus
Ch. Prabhakar and others [(2004) 5 SCC 551] one of the questions
referred is whether the scope and ambit of Article 20 of the Constitution
of India is to be understood to be protecting the substantial rights or
the immunity enjoyed by an accused at the time of commission of the
oﬀence for which he has been charged.
7. The provisions of Section 6A(1), extracted above, do indicate that for
oﬃcers of the level of Joint Secretary and above a kind of immunity has
been provided for. Whether there can be a deprivation of such immunity
by a retrospective operation of a judgment of the Court, in the context of
Article 20 of the Constitution of India, is the moot question that arises
for determination in the present case.
12 SUPREME COURT REPORTS [2023] 13 S.C.R.

8. For the aforesaid reasons and having regard to the provisions of Article
145(3) of the Constitution of India, we refer the aforesaid question to a
larger bench for which purpose the papers may now be laid before the
Hon’ble the Chief Justice of India on the administrative side.”
7. In the above backdrop, the matter has been placed before this Bench
and has been heard at length on the question referred.
SLP(Crl.) No.4364 of 2011
8. Leave granted.
9. This appeal has been ﬁled by the appellant assailing the correctness
of the judgment and order of the Bombay High Court passed in Criminal
Application No.1913 of 2010, titled Manjit Singh Bali vs. Central Bureau of
Investigation dated 29.11.2010. By the above order, the Bombay High Court
dismissed the petition praying for quashing of the FIR registered by CBI against
the petitioner therein under Sections 7 and 8 of the PC Act, 1988. In this case,
an FIR was registered on 18.02.2010 based on a complaint dated 16.02.2010.
A raid was conducted on 24.02.2010, during which the petitioner therein was
arrested and cash was recovered from his car. In this case also the issue is as
to whether in the facts of the said case, Section 6A(1) of DSPE Act would be
applicable or Section 6A(2) thereof would be applicable.
ARGUMENTS:
A. For CBI:
10. Shri Tushar Mehta, learned Solicitor General appearing for the
appellant-CBI in Criminal Appeal No.377 of 2007 made detailed submissions
which are brieﬂy summarized hereunder:
10.1. Section 6A of the DSPE Act is a mere procedural provision and not
a penal provision as such would not attract Article 20(1) of the Constitution.
Article 20 of the Constitution applies only to those provisions of law in force,
violation of which results in conviction and resultantly awarding sentence.
Procedural issues like statutory protection during trial, a provision providing for
a particular Court to try the oﬀence would not have any bearing while invoking
Article 20 of the Constitution.
10.2. Article 20 of the Constitution would have no applicability in
determining whether the declaration made in the case of Subramanian Swamy
CBI v. R.R. KISHORE 13
[VIKRAM NATH, J.]

(supra) would be prospective or retrospective. The protection provided under
Article 20 of the Constitution against ex post facto law extends and conﬁnes
only to conviction and sentence and would have no relevance for procedural
aspects and also would not have any applicability to the powers exercised during
the course of the investigation. He enlisted the following aspects in this respect:
(a) Article 20 is limited in application wherein distinct oﬀences
are created subsequently;
(b) The other aspect of Article 20 is debarring inﬂiction of greater
penalty, post commission of the oﬀence;
(c) Section 6A did not decriminalise PC Act oﬀences and removal
of the said provision, therefore, does not create a new oﬀence;
(d) Section 6A did not provide any blanket immunity against
anti-corruption laws and therefore, removal of the same does not
create a new oﬀence;
(e) Section 6A did not create any vested right which can be said
to be covered by Article 20;
(f) Declaration of Section 6A as invalid and unconstitutional is
through a judicial order and not a legislative measure.;
10.3. Reliance is placed upon the following judgments in support of the
above propositions:
(1) Rao Shiv Bahadur Singh and another Vs. State of Vindhya
Pradesh5;
(2) State of West Bengal Vs. S.K. Ghosh6;
(3) Sajjan Singh Vs. The State of Punjab7;
(4) Rattan Lal Vs. State of Punjab8;
(5) Union of India Vs. Sukumar Pyne9;

5 (1953) SCR 1188
6 (1963) 2 SCR 111
7 (1964) 4 SCR 630
8 (1964) 7 SCR 676
9 (1966) 2 SCR 34
14 SUPREME COURT REPORTS [2023] 13 S.C.R.

(6) G.P. Nayyar Vs. State (Delhi Administration)10;
(7) Soni Devrajbhai Babubhai Vs. State of Gujarat and Others11;
(8) Securities and Exchange Board of India Vs. Ajay Agarwal12;
10.4. Referring to Section 6A of the DSPE Act, it was submitted that the
same is not a penal provision and it does not create a new oﬀence nor does it
increase the punishment for an existing oﬀence, which existed on the date of
the commission of oﬀence.
10.5. Prior to insertion of Section 6A in the DSPE Act, similar provision
was existing in Single Directive No.4.7(3) requiring prior sanction to
investigation. This Court in the case of Vineet Narain and Others Vs. Union
of India and Another13, amongst other larger issues was also testing the
validity of the Single Directive No.4.7(3). This Court held in the said case that
by administrative instructions the statutory powers could not be intermeddled
or impeded. It accordingly declared Single Directive No.4.7(3)(i) as invalid.
10.6. As a result of such declaration Section 6A was introduced in
the DSPE Act in the year 2003 vide Section 26(c) of the Central Vigilance
Commission Act, 2003 w.e.f. 11.09.2003.
10.7. Section 6A of the DSPE Act, undeniably does not create a
new oﬀence nor does it obliterate the oﬀence. The Constitution Bench in
Subramanian Swamy’s case (supra) noted that the classiﬁcation made in
Section 6A neither eliminates public mischief nor achieves some positive
public good and, therefore, the classiﬁcation was held to be discriminatory
and violative of Article 14 of the Constitution as it side-tracks the fundamental
objects of the PC Act, 1988 to deal with corruption.
10.8. Shri Mehta commenting upon Section 6A of the DSPE Act enlisted
the following short conclusions:
(a) It is not a provision creating an oﬀence or providing immunity
from an oﬀence under which anyone can be punished;

10 (1979) 2 SCC 593
11 (1991) 4 SCC 298
12 (2010) 3 SCC 765
13 (1998) 1 SCC 226
CBI v. R.R. KISHORE 15
[VIKRAM NATH, J.]

(b) The said provision did not exempt applicability of anti-corruption
laws to oﬃcers above the rank of Joint Secretary;
(c) It was a mere executive safety mechanism; It was a mere initial
protective net of a particular kind which this Hon’ble Court
declared as unconstitutional;
(d) The said provision did not seek to create individual rights or
immunities rather was, as was the submission of the Union of India
in Subramanian Swamy (supra), a provision which was aimed at
protecting bona ﬁde actions for ensuring honest decisions/advice
in governmental functioning.
(e) It was not aimed as an immunity or substantive exclusion from
application of laws, rather was a preliminary check provided in
order to ensure honest oﬃcials are not unnecessarily harassed.
(f) It cannot be termed as a substantive procedural provision nor is it
a substantive penal provision.
(g) At best, Section 6A of the DSPE Act was purely technical,
procedural precondition, which was preliminary in nature and was
to be exercised prior to the stage of investigation.
10.9. It is settled proposition that declaration of unconstitutionality
renders a law to be non est, void ab initio or unenforceable, as the case may
be, subject to the legislature to cure the basis of the said unconstitutionality.
Reliance was placed upon the following judgments of this Court in his context:
(1) Keshavan Madhava Menon Vs. The State of Bombay14;
(2) Behram Khurshed Pesikaka Vs. The State of Bombay15;
(3) M.P.V. Sundararamier and Co. Vs. The State of Andhra Pradesh
& Another16;
(4) Deep Chand Vs. The State of Uttar Pradesh and Others17;

14 1951 SCR 228
15 (1955) 1 SCR 613
16 1958 SCR 1422
17 1959 SCR Suppl. (2) 8
16 SUPREME COURT REPORTS [2023] 13 S.C.R.

(5) Mahendra Lal Jaini Vs. The State of Uttar Pradesh and Others18;
(6) Municipal Committee, Amritsar and others Vs. State of Punjab
and Others19;
(7) The State of Manipur & Ors. Vs. Surjakumar Okram & Ors.20;
10.10. The common opinion culled out from the various opinions
rendered in the above judgments is that such declaration makes the law
unenforceable and such unenforceability relates back. It was, thus, submitted
that judgment in the case of Subramanian Swamy (supra) relates back to
the point when Section 6A was inserted in the DSPE Act.
10.11. Further submission is that a decision of this Court enunciating a
principle of law is applicable to all cases irrespective of its stage of pendency
as it is assumed that what is enunciated by this Court is in fact the law
from inception. There can be no prospective overruling unless expressly
indicated in clear and positive terms. If the Constitution Bench in the case
of Subramanian Swamy (supra) had any intentions of declaring that the
same would be prospective in application, then the same should have been
speciﬁcally and discretely stated therein. In absence of such declaration, the
natural assumption is that the same is retrospective applying the Blackstonian
theory of precedence.
10.12. Reference was made by Shri Mehta to the cases of I.C.
Golaknath & Ors. Vs. State of Punjab21 and Anr. and Managing Director,
ECIL, Hyderabad and Others Vs. B. Karunakar and Others22 for the
proposition that prospective overruling is to be exercised as an exception in
rare circumstances and such power should be seldom exercised. He has further
placed reliance upon a judgment of this Court in the case of M.A. Murthy
Vs. State of Karnataka and others23 for the proposition that if prospective
overruling is not speciﬁcally provided in the decision, it would not be open
for Courts in future to declare such a decision to be prospective in nature. If

18 AIR 1963 SC 1019
19 (1969) 1 SCC 475
20 2022 SCC Online SC 130
21 (1967) 2 SCR 762
22 (1993) 4 SCC 727
23 (2003) 7 SCC 517
CBI v. R.R. KISHORE 17
[VIKRAM NATH, J.]

prospective applicability of a decision is not provided in the said decision,
then it is presumed that it will have retrospective eﬀect and declaration of any
law as invalid would be unenforceable and non-existent from the statute book
from the time of its inception. The judgment in the case of Subramanian
Swamy (supra) would, therefore, operate retrospectively and at least would
be unenforceable ab initio.
10.13. The next submission is that the judgment in the case of
Transmission Corporation of A.P. Vs. C.H. Prabhakar and Others24 would
also not be of any help to the respondent as under the American position
of protection against ‘ex post facto’ laws, removal of a provision similar
to Section 6A of the DSPE Act would not be hit. Reference is made to the
following judgments:
(1) Hopt Vs. People of the Territory of Utah25;
(2) Duncan Vs. State26;
(3) Gibson Vs. Mississippi27;
(4) Thompson Vs. State of Missouri28; 171 US 380 (1898)
(5) John Mallett Vs. State of North Carolina29;
(6) John Rooney Vs. State of North Dakota30;
(7) Beazell Vs. State of Ohio Chatﬁeld31;
(8) Dobbert Vs. Florida32;
(9) Smith et al Vs. Doe et al33;
B: For Union of India:

24 (2004) 5 SCC 551
25 110 US 574 (1884
26 152 US 377 (1894)
27 162 US 565 (1896)
28 171 US 380 (1898)
29 181 US 589 (1901)
30 196 US 319 (1905)
31 269 US 167 (1925)
32 432 US 282 (1977)
33 538 US 84 (2003)
18 SUPREME COURT REPORTS [2023] 13 S.C.R.

11. Shri S.V. Raju, learned Additional Solicitor General of India made
submissions on behalf of the Union of India. His submissions are brieﬂy
summarized as follows:
11.1. Merely because the Court takes time to decide the matter or merely
because the challenge to statutory provisions is made subsequently, it would
not make an unconstitutional statutory provision legal or constitutional even if
such provision has operated for some time till it is struck down by the Court.
Such a violation is void ab initio, as settled by a large number of decisions of
this Court. It is only rarely that in some cases in order to obviate the hardships
and on equitable grounds, this Court had protected an action taken under an
unconstitutional statute. However, that does not mean that the statute was not
unconstitutional or bad during the period it was on the statute book.
11.2. Prohibition under Section 6A of the DSPE Act is against conducting
any enquiry or investigation. Referring to the deﬁnition of “enquiry” in Section
2(g) of the Code of Criminal Procedure, 197334, it was submitted that the
enquiry commences after charge-sheet is ﬁled and is a forerunner to the trial.
Reliance was placed upon the case of Hardeep Singh Vs. State of Punjab35,
in particular, reference has been made to paragraphs 27, 29 and 39 of the report.
11.3. Further referring to the deﬁnition of the word “investigation” in
Section 2(h) of Cr.P.C., it was submitted that the prohibition contained in
Section 6A of the DSPE Act relates to the prohibition from collecting evidence
in an enquiry or during the investigation.
11.4. Referring to the case of Subramanian Swamy (supra) it is
submitted that there could be two situations prior to the judgment in the
aforesaid case i.e. prior to May, 2014; (i) where evidence is already gathered
as part of investigation or (ii) where evidence is not gathered because of the
prohibition contained in Section 6A of the DSPE Act. Placing reliance upon
a judgment of this Court in H.N. Rishbud and Inder Singh Vs. The State
of Delhi36, wherein, while answering the ﬁrst question, this Court held that
the prohibition contained in Section 5(4) of the Prevention of Corruption

34 In short ‘Cr.P.C.’
35 (2014) 3 SCC 92
36 (1955) 1 SCR 1150
CBI v. R.R. KISHORE 19
[VIKRAM NATH, J.]

Act, 194737 was mandatory in nature whereas while answering the second
question, this Court held that trial following an investigation conducted in
violation of Section 5(4) of the PC Act, 1947 would not be illegal. It was
submitted that where a Magistrate has already taken cognizance upon an
investigation, conducted without the approval under Section 6A of the DSPE
Act, the Court can act on evidence collected during such investigation and
the proceedings would not be vitiated in the absence of any prejudice both
actual and pleaded with respect to such evidence. Reference has been made
to the following judgments:
(i) Fertico Marketing and Investment Private Limited and Others
Vs. Central Bureau of Investigation and Another38;
(ii) Rattiram and Others Vs. State of Madhya Pradesh39;
(iii) State of Karnataka Vs. Kuppuswamy Gownder and Others40;
11.5. It is further submitted that where investigation was not conducted
and where the Magistrate has not taken cognizance, the Investigating Agency
can conduct further investigation and collect evidence which earlier it was
not able to do due to the bar of Section 6A of the DSPE Act. However, such
further investigation would be subject to Section 17(A) of the PC Act, 1988. It
was, thus, submitted that after judgment in the case of Subramanian Swamy
(supra), the prohibition contained in Section 6A of the DSPE Act having
seized the CBI could investigate the matter subject to Section 17(A) of the
PC Act, 1988 wherever applicable. There would be no requirement to obtain
approval under Section 6A of the DSPE Act.
11.6. The provisions under Section 6A of the DSPE Act do not confer
any immunity from prosecution. Assuming that Section 6A of the DSPE Act
was in operation prior to the judgment in the case of Subramanian Swamy
(supra), it could not bar investigation by an Agency other than those covered
by the DSPE Act. Reference was made to the judgment of this Court in the
case of A.C. Sharma Vs. Delhi Administration41. Further submission is that

37 In short, “PC Act, 1947”
38 (2021) 2 SCC 525
39 (2013) 12 SCC 316
40 AIR 1987 SC 1354
41 (1973) 1 SCC 726
20 SUPREME COURT REPORTS [2023] 13 S.C.R.

a trial on the basis of a private complaint relating to corruption cases would be
maintainable and there would be no immunity in such cases by virtue of Section
6A of the DSPE Act.
11.7. It was next submitted that Article 20(1) of the Constitution would
have no application in this case as investigation is only part of the procedure
for collecting evidence and it neither amounts to conviction nor to sentence.
Reliance was placed upon a judgment of this Court in the case of Rao Shiv
Bahadur Singh (supra).
C: Dr. R.R. Kishore – respondent in person in Crl.A.No.377 of 2007:
12. The respondent, Dr. R.R. Kishore has throughout represented himself
in person and has argued the matter at length before us. His submissions are
summarized hereunder:
12.1. At the outset, it was submitted that CBI is contesting this case
against the stand of the Union of India. Initially Union of India was not a party
to the proceedings, however, pursuant to an order dated 27.04.2012 passed in
this appeal, the Union of India was made a party by the Court suo moto. The
aﬃdavit ﬁled by Union of India, served upon the respondent on 25.02.2013
and which is part of the record, categorically stated that CBI does not have
jurisdiction to initiate investigation against the respondent without prior approval
of the Central Government. It further stated that the view taken by the learned
Single Judge of the Delhi High Court in the impugned order dated 05.10.2006
is correct and eﬀectively captures the purpose of enactment of a provision. It
further took stand in paragraph 23 that purport of Section 6A of the DSPE Act
is to accord meaningful protection to the persons imbued with decision making
powers from frivolous or motivated investigation by providing a screening
mechanism. Reference was also made to the directions issued by this Court in
the case of Vineet Narain (supra) to the eﬀect that Central Government shall
remain answerable for the CBI’s functioning and shall further take all measures
necessary to ensure that CBI functions eﬀectively, eﬃciently and is viewed as
a non-partisan agency. On such submissions, it is the case of the respondent
that nothing survives in this appeal ﬁled by the CBI and the same deserves to
be dismissed.
12.2. It was next submitted that CBI had not only violated Section 6A of
the DSPE Act but had also violated Section 6 of the said Act and also Sections
CBI v. R.R. KISHORE 21
[VIKRAM NATH, J.]

17 and 18 of the PC Act, 1988. Even though the FIR was registered only under
Section 7 of the PC Act, 1988 against the respondent alone, but still the CBI
conducted investigation regarding possessing assets disproportionate to known
sources of income not only against the respondent but also his wife, who was
working as an employee of the State of U.P.
12.3. Referring to the facts of the case, it was stated that the case was
registered under Section 7 of the PC Act on 16.12.2004, the High Court
delivered the judgment impugned in the appeal on 05.10.2006, the petition
was preferred by the CBI in January, 2007, leave was granted thereafter and
notice was issued to the Union of India on 27.04.2012. The aﬃdavit was
ﬁled by the Union of India in February, 2013. The provisions of Section 6A
of the DSPE Act was continuing on the statute book till 06.05.2014 when
the judgment in the case of Subramanian Swamy (supra) was delivered.
On the basis of above facts, it was submitted that the appeal was liable to be
dismissed as being meritless.
12.4. It was next submitted that at the time when the appeal is being
heard, there is already in existence a similar provision protecting the interest
of the respondent by way of Section 17(A) of the PC Act, 1988.
12.5. An argument relating to discrimination has also been raised by
the respondent to the eﬀect that in case if the contention of the appellant is
accepted, the respondent would be discriminated from those set of government
servants who have availed the protection of Section 6A of the DSPE Act
and the proceedings against them have come to a closure in cases where the
competent authority declined to grant sanction and also to another set of cases
where the Courts have quashed the proceedings in the absence of sanction
under Section 6A of the DSPE Act.
12.6. The next argument relates to Section 6 of the General Causes Act,
42
1897 dealing with eﬀect of Repeal in view of its applicability under Article
367 of the Constitution.
12.7. It is also submitted that where a law has been in force for a long
time and is subsequently repealed, the same would not aﬀect the rights which
had accrued during the existence of such law.

42 In short ‘the Act, 1897’
22 SUPREME COURT REPORTS [2023] 13 S.C.R.

12.8. It is also his submission that if, while declaring the statute to be
invalid, the Court does not expressly incorporate for its retrospective application,
it shall be deemed to apply prospectively. Reliance was placed upon the
following judgments:
(1) Keshavan Madhava Menon (supra);
(2) Ashok Kumar Gupta and Another Vs. State of U.P. and others43;
(3) Kaiser Aluminium and Chemical Corporation Vs. Bonjorno44;
(4) Assistant Excise Commissioner, Kottayam and Others Vs.
Esthappan Cherian and another45
12.9. It was next submitted that appeal of the CBI has been ﬁled primarily
on two grounds; that Section 6A(1) of the DSPE Act is not mandatory; and that
Section 6A(2) would apply. He also submitted that no ground has been taken that
Section 6A(1) is unconstitutional or invalid, as such, CBI cannot argue this point.
12.10. Lastly, it is submitted that not only Article 20, but also Article 21 of
the Constitution, should be read in favour of the respondent and also in favour of
the law existing at the time when the oﬀence is said to have taken place, beneﬁt
should be extended of any protection available at that time.
D: Shri Arvind Datar, Senior Advocate for appellant-Manjit Singh
Bali in Crl.Appeal @ SLP (Crl.) No. 4364 of 2011:
13. Shri Arvind Datar, learned Senior Counsel appearing for the appellant-
Manjit Singh Bali in Criminal Appeal arising out of SLP (Crl.) No.4364 of 2011
made the following submissions:
13.1. After referring to the question referred to the Constitution Bench,
Shri Datar, learned Senior Advocate submitted that following three corollary
questions also arise for consideration namely:
(i) Whether declaration of a law being violative of Article 14 or any
other Article contained in Part-III is void ab initio under Article
13(2)?

43 (1997) 5 SCC 201
44 494 US 827 (1990)
45 Civil Appeal No.5815 of 2009 by Supreme Court of India vide order dated 06.09.2021
CBI v. R.R. KISHORE 23
[VIKRAM NATH, J.]

(ii) What is the eﬀect of such a judgment on actions taken or omitted to
be taken during the period when the law remained operational? and
(iii) Whether there is a difference between: (I) a law held as
unconstitutional for lack of legislative competence; and (II) a law held
to be unconstitutional for violation of Part-III or other constitutional
limitations?
13.2. Referring to Article 20(1) of the Constitution vis-a-vis deprivation
of immunity retrospectively and analysing the said constitutional provision, it
is submitted that a conviction of an accused can take place by following the
prescribed procedure starting from enquiry, investigation, trial etc. According to
him, if the ﬁrst stages of enquiry, investigation are not permitted unless there is a
speciﬁed prior approval as there is immunity from prosecution, no conviction can
take place. According to him, this immunity referring to Section 6A of the DSPE
Act, is entitled to protection under Article 20(1) of the Constitution. According to
him, the marginal note refers to protection in respect of conviction and the phrase
‘in respect of’ must be interpreted to grant protection to all the existing procedural
safeguards at the time when the oﬀence was alleged to be committed. Reliance
was placed upon a judgment of this Court in the case of Prabhu Dayal Deorah
Vs. District Magistrate46.
13.3. Section 6A(1) of the DSPE Act creates an immunity and grants
a protection. It cannot be taken away retrospectively, either by retrospective
amendment or by a judgment declaring such immunity invalid.
13.4. Section 6A was declared ultra vires Article 14 of the Constitution
and, as such, under Article 13(2) of the Constitution it is void to the extent of
the contravention. The argument further proceeds to elaborate the meaning and
scope of the word “void” which came up for consideration in a number of cases
right from 1951 to 1963. Dr. Datar has very fairly submitted that this Court has
held that a provision which is held to be ‘void’ would be a “nullity”, “still born”
or “dead” as if it was never in existence at all.
13.5 It was next submitted that a law which has been declared to be
unconstitutional could only mean that such law becomes inoperative or

46 (1994) 1 SCC 103
24 SUPREME COURT REPORTS [2023] 13 S.C.R.

ineﬀective, once declared and not before that. The submission is that a law
declared unconstitutional cannot be treated as void ab initio for the following
reasons:
(a) As there is a presumption of constitutionality till a law is declared to
contravene the provisions of Part-III or other constitutional limitations,
it remains valid;
(b) The expression “to the extent of contravention” implies that there
has to be a judicial declaration of contravention and the extent thereof.
Till such declaration is made, no law can be treated as void;
(c) If there is no interim stay, the law has to be implemented and all
actions taken pending ﬁnal hearing will not become unlawful;
(d) The word “void” is used 14 times in the Constitution. The use of
the word “void” in the context of the Constitution, unlike the Contract
Act, only means that a judicial declaration renders a law inoperative or
unenforceable;
(e) The Oxford Dictionary deﬁnes the word “void” in two ways:
(i) As an adjective, it means that ‘something is not valid or legally
binding’; and
(ii) As a verb, it means ‘to declare that (something) is not valid or
legally binding’.
(f) A combined reading of Articles 249-251 read with Article 254 of
the Constitution shows that the word “void” basically means ‘invalid’
or ‘inoperative’;
(g) The word “void” does not mean “repeal”; a judgment does not
amend or alter the statue. It remains in the statute-book but cannot be
given eﬀect to.
(h) Part-III includes not only express fundamental rights but several
derivative rights. Therefore, it will be incorrect to treat an unconstitutional
law as void ab initio.
13.6. The next submission is that an administrative act, unless declared
invalid, will continue to have legal eﬀect and actions taken before the law
was declared invalid would still remain protected.
CBI v. R.R. KISHORE 25
[VIKRAM NATH, J.]

13.7. A large number of judgments have been referred for the proposition
that declaration of invalidity and consequences that follow are two diﬀerent aspects
and this Court has repeatedly granted relief by protecting the actions taken during
pendency of the litigation.
13.8. It is also submitted that a law declared as invalid either on the ground
of lack of legislative competence or for violating Part-III of the Constitution or
other constitutional limitations would have the same eﬀect. No distinction can
be drawn in either of the cases.
13.9. It was next submitted that protection from prosecution has continued
from 1969 as it was deemed necessary to ensure proper administrative function by
Government oﬃcials except for brief periods when this Court had struck down the
validity of the relevant clause of the Single Directive in the case of Vineet Narain
(supra) and, thereafter, Section 6A of the DSPE Act in the case of Subramanian
Swamy (supra). Continuously, the legislature has been incorporating provisions
in diﬀerent statutes to continue to extend such protection to Government oﬃcials
from unnecessary and frivolous criminal prosecutions.
13.10. It was lastly submitted that the doctrines of prospective overruling and
the Blackstonian theory do not apply in the present case as no previous decision
has been overruled. This is a case of declaring a law as unconstitutional being
violative of Part-III of the Constitution.
13.11. In the facts and circumstances, it was submitted that the appeal of
Manjit Singh Bali deserves to be allowed.
13.12. Shri Amit Desai, learned Senior Counsel also appearing for the same
party made a few submissions. He placed reliance upon two judgments of this
Court, namely (i) Mohan Lal Vs. State of Punjab47 and, (ii) Varinder Kumar
Vs. State of Himachal Pradesh48.
14. Having considered the submissions advanced on behalf of the parties,
the following questions require consideration:
(i) Whether Section 6A of the DSPE Act is part of procedure or it
introduces a conviction or sentence?

47 (2018) 17 SCC 627
48 (2020) 3 SCC 321
26 SUPREME COURT REPORTS [2023] 13 S.C.R.

(ii) Whether Article 20(1) of the Constitution will have any bearing or
relevance in the context of declaration of Section 6A of the DSPE
Act as unconstitutional?
(iii) The declaration of Section 6A of the DSPE Act as unconstitutional
and violative of Article 14 of the Constitution would have a
retrospective eﬀect or would apply prospectively from the date of
its declaration as unconstitutional?
15. At the outset, it may be noted that during the course of arguments,
it was made clear to the counsels that this Bench would be answering the
speciﬁc question referred to it and would not be enlarging the scope of the
reference made. Although learned counsels and the party in person were
allowed to make their submissions and were not checked during the course of
the arguments from raising points beyond the scope of the reference in order
to enlarge its scope, that would not mean that the Court would deal with all
such submissions. It was also made clear that the Bench would not be dealing
with the merits of the individual cases and post answering the questions, the
matters would be reverted to the regular Bench assigned of such jurisdictions
for hearing and disposal.
16. Before commencing to analyse the respective arguments and legal
position on the questions so framed, a brief narration of the history of obtaining
sanction before launching prosecution may be referred to.
16.1. In 1969, the Central Government issued Single Directive which
is a consolidated set of instructions issued to the CBI by various Ministries/
Departments and has been amended from time to time. Directive No.4.7(3)
contained instructions regarding modalities of initiating an enquiry or
registering a case against certain categories of civil servants and provided for
a prior sanction of the Designated Authority to initiate investigation against
oﬃcers of the Government and public sector undertakings & Nationalized
Banks above a certain level. The same reads as follows:
“4.7(3)(i) In regard to any person who is or has been a decision making
level oﬃcer (Joint Secretary or equivalent of above in the Central
government or such oﬃcers as are or have been on deputation to a
Public Sector Undertaking; oﬃcers of the Reserve Bank of India of the
level equivalent to Joint Secretary of above in the Central Government,
CBI v. R.R. KISHORE 27
[VIKRAM NATH, J.]

Executive Directors and above of the SEBI and Chairman & Managing
Director and Executive Directors and such of the Bank oﬃcers who
are one level below the Board of Nationalised Banks), there should be
prior sanction of the Secretary of the Ministry/Department concerned
before SPE takes up any enquiry (PE or RC), including ordering search
in respect of them. Without such sanction, no enquiry shall be initiated
by the SPE.
(ii) All cases referred to the Administrative Ministries/Departments by
CBI for obtaining necessary prior sanction as aforesaid, except those
pertaining to any oﬃcer of the rank of Secretary or Principal Secretary,
should be disposed of by them preferably within a period of two months
of the receipt of such a reference. In respect of the oﬃcers of the rank of
Secretary or Principal Secretary to Government, such references should
be made by the Director, CBI to the Cabinet Secretary for consideration
of a Committee consisting of the Cabinet Secretary as its Chairman
and the Law Secretary and the Secretary (Personnel) as its members.
The Committee should dispose of all such references preferably within
two months from the date of receipt of such a reference by the Cabinet
Secretary.
(iii) When there is any diﬀerence of opinion between the Director, CBI
and the Secretary of the Administrative Ministry/Department in respect
of an oﬃcer up to the rank of Additional Secretary or equivalent, the
matters shall be referred by CBI to Secretary (Personnel) for placement
before the Committee referred to in Clause (ii) above. Such a matter
should be considered and disposed of by the Committee preferably within
two months from the date of receipt of such a reference by Secretary
(Personnel).
(iv) In regard to any person who is or has been Cabinet Secretary, before
SPE takes any step of the kind mentioned in (i) above the case should
be submitted to the Prime Minister for orders.”
The validity of the above Single Directive No.4.7(3) was considered in
the case of Vineet Narain (supra).
16.2. After considering the material placed on record, the three Judge
Bench in the case of Vineet Narain (supra) came to the conclusion that such
28 SUPREME COURT REPORTS [2023] 13 S.C.R.

directive could not be held to be valid and, accordingly, struck it down. The
judgment in the case of Vineet Narain (supra) was delivered on 18.12.1997.
16.3. The requirement of sanction similar to Single Directive No.4.7(3)
was introduced by way of an Ordinance w.e.f. 25.08.1998 and the same lasted
till 27.10.1998 when it lapsed. Thereafter, in 2003, Section 6A, akin to Single
Directive No.4.7(3), was inserted in the DSPE Act w.e.f. 11.09.2003 vide
Section 26(c) of Central Vigilance Commission Act, 2003 (Act No. 45 of
2003)49. The said provision is reproduced hereunder:
“Section 6A of the DSPE Act
6A. Approval of Central Government to conduct inquiry or investigation.-
(1) The Delhi Special Police Establishment shall not conduct any inquiry
or investigation into any oﬀence alleged to have been committed under
the Prevention of Corruption Act, 1988 (49 of 1988) except with the
previous approval of the Central Government where such allegation
relates to-
(a) the employees of the Central Government of the Level of Joint
Secretary and above; and
(b) 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 that
Government.
(2) Notwithstanding anything contained in sub-section (1), no such
approval shall be necessary for cases involving arrest of a person on the
spot on the charge of accepting or attempting to accept any gratiﬁcation
other than legal remuneration referred to in clause (c) of the Explanation
to section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).]”
17. This Section remained on the statute book for a period of more than
ten years till the judgment in the case of Subramanian Swamy (supra) was
delivered on 06.05.2014, which held it to be unconstitutional as being violative
of Article 14 of Part-III of the Constitution.

49 In short, “Act No. 45 of 2003”
CBI v. R.R. KISHORE 29
[VIKRAM NATH, J.]

18. The Parliament again inserted Section 17A in the PC Act, 1988 w.e.f.
26.07.2018. This provision has continued to remain in the statute book. It also
provided for sanction before prosecution but without any classiﬁcation of
Government servants. All Government servants of whatever category, class,
or level, are provided protection under Section 17A of the PC Act, 1988. The
said provision is reproduced hereunder:
17A. Enquiry or Inquiry or investigation of offences relatable to
recommendations made or decision taken by public servant in discharge
of oﬃcial functions or duties.-- No police oﬃcer shall conduct any enquiry
or inquiry or investigation into any oﬀence alleged to have been committed
by a public servant under this Act, where the alleged oﬀence is relatable
to any recommendation made or decision taken by such public servant in
discharge of his oﬃcial functions or duties, without the previous approval--
(a) in the case of a person who is or was employed, at the time when the
oﬀence was alleged to have been committed, in connection with the aﬀairs
of the Union, of that Government;
(b) in the case of a person who is or was employed, at the time when the
oﬀence was alleged to have been committed, in connection with the aﬀairs
of a State, of that Government;
(c) in the case of any other person, of the authority competent to remove
him from his oﬃce, at the time when the oﬀence was alleged to have been
committed:
Provided that no such approval shall be necessary for cases involving
arrest of a person on the spot on the charge of accepting or attempting to
accept any undue advantage for himself or for any other person:
Provided further that the concerned authority shall convey its decision
under this section within a period of three months, which may, for reasons
to be recorded in writing by such authority, be extended by a further
period of one month.
19. From the above, we notice that there are small windows of couple of
years on two occasions when there was no such protection available, otherwise,
right from 1969 the protection regarding sanction before prosecution has
remained in force and continues as such even now.
30 SUPREME COURT REPORTS [2023] 13 S.C.R.

Article 20(1) of the Constitution and its applicability in the
context of Section 6A of the DSPE Act (Question No.:1 & 2).
20. The Constitution Bench in the case of Subramanian Swamy (supra)
was testing constitutional validity of Section 6A of DSPE Act. Section 6A has
two sub-Sections (1) and (2). Sub-Section (1) provides of a protection from any
enquiry or investigation into any oﬀence under the PC Act, 1988 without the
previous approval of the Central Government where the allegation relates to
employees of the Central Government of the level of Joint Secretary and above
(Clause a) and also 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. Sub-
Section (2) begins with a non-obstante clause stating that no such approval
would be necessary for cases involving arrest of a person on the spot on the
charge of accepting or attempting to accept any gratiﬁcation other than legal
remuneration referred to in clause (c) of the Explanation to Section 7 of the
PC Act, 1988. Sub-Section (2) takes away the protection to the Government
servant of the category deﬁned in sub-Section (1) where arrest of a person
is to be made on the spot on the charge of accepting or attempting to accept
any gratiﬁcation.
21. The Constitution Bench held that Section 6A(1) which required
approval of the Central Government to conduct any enquiry or investigation
into any oﬀence alleged to have been committed under the PC Act, 1988 to be
invalid and unconstitutional and in violation of Article 14 of the Constitution.
As a necessary corollary, it was further declared that the provision contained
in Section 26(c) of Act No. 45 of 2003 introducing the above provision was
also invalid.
22. The reference order dated 10.03.2016 required the retrospective
application of the declaration by the Constitution Bench in Subramanian
Swamy (supra) to be determined in the context of Article 20 of the
Constitution. It would, therefore, be necessary to brieﬂy discuss the scope of
Article 20 and whether or not it would have any applicability in the context
of Section 6A of the DSPE Act.
23. Before proceeding to do that, it would be appropriate to examine
whether Section 6A of the DSPE Act providing protection to certain categories
of Government servants would, in any manner, amount to a conviction or
CBI v. R.R. KISHORE 31
[VIKRAM NATH, J.]

sentence or it would be a purely procedural aspect. Section 6A of the DSPE
Act does not lay down or introduce any conviction for any oﬀence. It is a
procedural safeguard only which is enumerated in Section 6A of the DSPE
Act with regard to making of an investigation or enquiry of an oﬀence under
the PC Act, 1988. Section 6A of the DSPE Act also does not lay down any
sentence nor does it alter any existing sentence for an oﬀence.
24. There is no attempt on the part of the respondent or by Mr. Datar to
canvass that Section 6A of the DSPE Act is not part of procedural law and
that it in any manner introduces any conviction or enhances any sentence
post the commission of oﬀence. It is, therefore, held that 6A of the DSPE
Act is a part of the procedure only in the form of a protection to senior
government servants. It does not introduce any new oﬀence nor it enhances
the punishment or sentence.
25. It would be useful to reproduce Article 20 of the Constitution at this
stage itself for its proper analysis and appreciation of the arguments of the
respective counsels. It reads as follows:
“20. Protection in respect of conviction for oﬀences.
(1) No person shall be convicted of any oﬀence except for violation of
a law in force at the time of the commission of the Act charged as an
oﬀence, nor be subjected to a penalty greater than that which might
have been inﬂicted under the law in force at the time of the commission
of the oﬀence.
(2) No person shall be prosecuted and punished for the same oﬀence
more than once.
(3) No person accused of any oﬀence shall be compelled to be a witness
against himself.”
26. In the present case we are only concerned with sub-article (1) to
Article 20 of the Constitution. Hence, we need not examine sub-article (2)
and (3).
27. Sub-article (1) of Article 20 of the Constitution consists of two parts.
The ﬁrst part prohibits any law that prescribes judicial punishment for violation
of law with retrospective eﬀect. Sub-article (1) to Article 20 of the Constitution
does not apply to civil liability, as distinguished from punishment for a criminal
32 SUPREME COURT REPORTS [2023] 13 S.C.R.

oﬀence. Further, what is prohibited is conviction or sentence for any oﬀence
under an ex post facto law, albeit the trial itself is not prohibited. Trial under a
procedure diﬀerent from the one when at the time of commission of an oﬀence,
or by a court diﬀerent from the time when the oﬀence was committed is not
unconstitutional on account of violation of sub-article (1) to Article 20 of the
Constitution. It may be diﬀerent, if the procedure or the trial is challengeable
on account of discrimination under Article 14 of the Constitution or violation
of any other fundamental right.
28. The right under ﬁrst part of sub-article (1) to Article 20 of the
Constitution is a very valuable right, which must be safeguarded and protected
by the courts as it is a constitutional mandate. The Constitution bench of this
Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh50, highlighted
the principle underlying the prohibition by relying upon judgment of Willes,
J. in Phillips v. Eyre51 and of the United States Supreme Court in Calder v.
Bull52, to hold that it would be highly unjust, unfair and in violation of human
rights to punish a person under the ex post facto law for acts or omissions that
were not an oﬀence when committed. In the English system of jurisprudence,
in the absence of a written Constitution, the repugnance of such laws is justiﬁed
on universal notions of fairness and justice, not on the ground of invalidating
the law itself, but as compelling the beneﬁcial construction thereof where the
language of the statute by any means permits it. Under the American law, ex
post facto laws are rendered invalid by virtue of Article 1, Sections 9 and 1053.
29. Rao Shiv Bahadur Singh (supra) observes that the language of
sub-article (1) of Article 20 of the Constitution is much wider in terms as the
prohibition under the Article is not conﬁned to the passing of validity of the
law, and that fullest eﬀect must be given to the actual words used and what
they convey. Accordingly, the decision had struck down Vidhya Pradesh
Ordinance 48 of 1949, which though enacted on 11.09.1949, had postulated
that the provisions would deemed to have come into force in Vidhya Pradesh
on 09.04.1948, a date prior to the date of commission of oﬀences. Interpreting

50 (1953) 2 SCC 111
51 1 (1870) LR 6 QB 1 at pp. 23 and 25
52 1 L Ed 648 at p. 649 : 3 US (3 Dall) 386 (1798)
53 It may be noted that the provisions of the American Constitution are diﬀerently
worded. We must keep in view the language of sub-article (1) of Article 20.
CBI v. R.R. KISHORE 33
[VIKRAM NATH, J.]

the term ‘law in force’, it was held that the ordinance giving retrospective
eﬀect would not fall within the meaning of the phrase ‘law in force’ as used
in sub-article (1) of Article 20 of the Constitution. The ‘law in force’ must be
taken to relate not to a law deemed to be in force, but factually in force, and
then only it will fall within the meaning of ‘existing law’. Artiﬁce or ﬁction
will fall foul, when they are with the intent to defeat the salutary object and
purpose behind sub-article (1) of Article 20 of the Constitution54.
30. The aforesaid rationale and principles of interpretation equally apply
to the second part of sub-article (1) to Article 20, which states that a person
can only be subjected to penalties prescribed under the law at the time when
the oﬀence for which he is charged was committed. Any additional or higher
penalty prescribed by any law after the oﬀence was committed cannot be
imposed or inﬂicted on him. The sub-article does not prohibit substitution of
the penalty or sentence which is not higher or greater than the previous one
or modiﬁcation of rigours of criminal law55.
31. In view of the limited scope of the present controversy, we need not
examine in greater detail sub-article (1) of Article 20. The reason why we
have referred to the constitutional guarantee, which protects the citizens and
persons from retrospective ex post facto laws, is to aﬃrm that our decision in
no way dilutes the constitutional mandate. The issue involved in the present
reference relates to a matter of procedure, and not the two aspects covered by
sub-article (1) of Article 20 of the Constitution.
32. Learned counsel for the parties have also brieﬂy referred to Section
6 of the General Clauses Act, 1897. It would be appropriate to reproduce the
said provision hereunder:
“Where this Act, or any Central Act or Regulation made after
the commencement of this Act, repeals any enactment hitherto made
or hereafter to be made, then, unless a diﬀerent intention appears, the
repeal shall not-

54 In the present case, we need not examine-when an oﬀence is a continuous oﬀence, an
aspect and matter of considerable debate.
55 See T. Barai Vs. Henry Ah Hoe, (1983) 1 SCC 177 and Pratap Singh Vs. State of
Jharkhand, (2005) 3 SCC 551. The latter judgment refers to several judgments.
34 SUPREME COURT REPORTS [2023] 13 S.C.R.

(a) revive anything not in force or existing at the time at which the repeal
takes eﬀect; or
(b) aﬀect the previous operation of any enactment so repealed or
anything duly done or suﬀered thereunder; or
(c) aﬀect any right, privilege, obligation or liability acquired, accrued
or incurred under any enactment so repealed; or
(d) aﬀect any penalty, forfeiture or punishment incurred in respect of
any oﬀence committed against any enactment so repealed; or
(e) aﬀect any investigation, legal proceeding or remedy in respect of
any such right, privilege, obligation, liability, penalty, forfeiture or
punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted,
continued or enforced, and any such penalty, forfeiture or punishment
may be imposed as if the repealing Act or Regulation had not been
passed.”
A plain reading of the above provision indicates that the repeal of an
enactment shall not aﬀect previous operation, unless a diﬀerent intention
appears. It may be appropriately noted here that the present case does not
involve repeal or revival of any enactment but is a case where a Constitution
Bench of this Court has declared a statutory provision as invalid and
unconstitutional being hit by Article 14 of the Constitution. As such Section
6 of the 1897 Act will have no application.
33. At this stage, it would be appropriate to brieﬂy refer to the case law
on the above point regarding applicability of Article 20 of the Constitution.
(i) In the case of Rao Shiv Bahadur Singh (supra), the Constitution
Bench, as far back as 1953, was dealing with the eﬀect of Article
20(1) of the Constitution raised under two separate circumstances.
The ﬁrst being that the Court which recorded the conviction had
been conferred jurisdiction much after the oﬀence had taken place
and at the time of the oﬀence the forum was diﬀerent. The other
issue raised with regard to Article 20(1) of the Constitution was that
although the oﬀence had been committed in the month of March
and April 1949 but by way of an ordinance which came into force in
CBI v. R.R. KISHORE 35
[VIKRAM NATH, J.]

September 1949, the laws were adopted which covered the oﬀences
for which the appellants were charged and as such Article 20(1)
would protect them and they could not be tried for such oﬀence
which had been introduced later on.
(ii) The Constitution Bench rejected the plea on both the counts.
Although in the present case, the concern is only with the ﬁrst
aspect relating to the issue regarding competent court to try the
oﬀence which is a part of the procedure and had nothing to do with
conviction or sentence being introduced subsequent to the oﬀence.
The Constitution Bench held as follows with regard to the above
issue:
“9. In this context it is necessary to notice that what is prohibited under
Article 20 is only conviction or sentence under an ex post facto law
and not the trial thereof. Such trial under a procedure diﬀerent from
what obtained at the time of the commission of the oﬀence or by a court
diﬀerent from that which had competence at the time cannot ipso facto
be held to be unconstitutional. A person accused of the commission of
an oﬀence has no fundamental right to trial by a particular court or by
a particular procedure, except insofar as any constitutional objection
by way of discrimination or the violation of any other fundamental
right may be involved.
(emphasis supplied)”
(iii) With respect to the second aspect also, the Constitution Bench did
not ﬁnd favour with the appellant and held that the State of Vindhya
Pradesh had the power to frame laws being applied retrospectively
and also for the reason that the said oﬀence was already in existence
and in force in the said state in 1948 itself.
(iv) The Constitution Bench in the case of S.K. Ghosh (supra) was
dealing with an appeal ﬁled by the State of West Bengal assailing
the correctness of the judgment of the High Court by which two
Hon’ble Judges had allowed the appeal of the respondent S.K.
Ghosh but for diﬀerent reasons. Mitter J. had not dealt with the
applicability of Article 20(1) of the Constitution for setting aside
the forfeiture proceedings. The same was set aside for the reason
36 SUPREME COURT REPORTS [2023] 13 S.C.R.

that there was no determination under Section 12 of the Criminal Law,
1944 Amendment vide 1944 Ordinance, whereas Bhattacharya J. set
aside the forfeiture on the ground that the 1944 Ordinance had come
into force on 23.08.1944 whereas the eﬀective period for committing
the oﬀence had ended in July 1944.
(v) The Constitution Bench allowed the appeal of the State of West Bengal
by holding that both the views taken by the respective judges were not
correct.
(vi) The Constitution Bench once again relied upon the earlier Constitution
bench judgment in the case of Rao Shiv Bahadur Singh (supra) and
laid down that forfeiture in the said case would have nothing to do with
conviction or punishment and therefore there could be no application
of Article 20(1). The relevant extract from the aforesaid judgment is
reproduced hereunder:
“16. We may in this connection refer to Rao Shiv Bahadur Singh v.
State of Vindhya Pradesh where Article 20(1) came to be considered. In
that case it was held that “the prohibition contained in Article 20(1) of
the Constitution against conviction and subjections to penalty under ex
post facto laws is not conﬁned in its operation to post-Constitution laws
but applied also to ex post facto laws passed before the Constitution
in their application to pending proceedings”. This Court further held
that Article 20 prohibits only conviction or sentence under an ex post
facto law, and not the trial thereof. Such trial under a procedure
diﬀerent from what obtained at the time of the oﬀence or by a court
diﬀerent from that which had competence at that time cannot ipso
facto be held to be unconstitutional. Therefore, this case shows that
it is only conviction and punishment as deﬁned in Section 53 of the
Indian Penal Code which are included within Article 20(1) and a
conviction under an ex post facto law or a punishment under an
ex post facto law would be hit by Article 20(1); but the provisions
of Section 13(3) with which we are concerned in the present appeal
have nothing to do with conviction or punishment and therefore
Article 20(1) in our opinion can have no application to the orders
passed under Section 13(3).
(emphasis supplied)”
CBI v. R.R. KISHORE 37
[VIKRAM NATH, J.]

(vii) In the case of Rattan Lal (supra), a three-Judge Bench of this
Court by a majority of 2:1 was of the view that a law made post
the oﬀence which neither creates an oﬀence nor enhances the
sentence but was a beneﬁcial legislation for reformation of ﬁrst-
time oﬀenders, the beneﬁt could be extended to such an accused
convicted for the ﬁrst time, i.e., under the Probation of Oﬀenders
Act 1958, and that Article 20(1) of the Constitution will have no
application.
(viii) The Constitution Bench in the case of Sukumar Pyne (supra),
relying upon the earlier Constitution Bench in Rao Shiv Bahadur
Singh (supra), further laid down that there is no principle underlying
Article 20(1) of the Constitution which makes a right to any course
of procedure a vested right. The relevant extract from the judgment
is reproduced hereunder:
“20. …As observed by this Court in Rao Shiv Bahadur Singh v.
State of Vindhya Pradesh a person accused of the commission of
an oﬀence has no vested right to be tried by a particular court or
a particular procedure except insofar as there is any constitutional
objection by way of discrimination or the violation of any other
fundamental right is involved. It is well recognized that “no person
has a vested right in any course of procedure” (vide Maxwell 11th
Edn., p.216), and we see no reason why this ordinary rule should
not prevail in the present case. There is no principle underlying
Article 20 of the Constitution which makes a right to any course
of procedure a vested right…
(emphasis supplied)”
(ix) In the case of G.P. Nayyar (supra), a two-judge Bench of this
Court, while dealing with the eﬀect of repeal and revival of
Section 5(3) of the Prevention of Corruption Act, 1947, was of the
view that Section 5(3) did not by itself lay down or introduce any
oﬀence. It was only a rule of evidence whereas the oﬀence was
provided under Section 5(1) or 5(2) of the 1947 Act. As such, the
claim of the appellant therein that revival of Section 5(3) by the
Anti-Corruption Laws (Amendment) Bill, 1967 retrospectively
hit by Article 20(1) of the Constitution was without any merit.
38 SUPREME COURT REPORTS [2023] 13 S.C.R.

Reliance was placed upon the earlier Constitution Bench judgment
in Rao Shiv Bahadur Singh (supra) that it was only conviction
or sentence under an ex post facto law that was prohibited under
Article 20(1) of the Constitution and would not aﬀect the trial. What
this Court said was that the appellant cannot object to a procedure
diﬀerent from what existed at the time of the commission of the
oﬀence by applying Article 20(1) of the Constitution. It may be
noticed that this was a judgment relating to law being amended by
the Parliament and not law being declared unconstitutional by a
Court. The relevant extract from the said judgment reads as follows:
“There can be no objection in law to the revival of the procedure
which was in force at the time when the oﬀence was committed.
The eﬀect of the amendment is that sub-section (3) of Section 5
as it stood before the commencement of the 1964 Act shall apply
and shall be deemed to have always applied in relation to trial of
oﬀences. It may be if by this deeming provision a new oﬀence was
created, then the prohibition under Article 20(1) may come into
operation. But in this case, as already pointed out, what is done is
no more than reiterating the eﬀect of Section 6(1) of the General
Clauses Act. Mr. Garg, the learned Counsel, submitted that by
amending procedure drastically and giving it retrospective eﬀect,
a new oﬀence may be created retrospectively. It was contended that
by shifting the burden of proof as provided for in Section 5(3) of the
Prevention of Corruption Act, 1947, a new oﬀence is created. It is
unnecessary for us to consider the larger question as to whether in
certain circumstances giving retrospective eﬀect to the procedure
may amount to creation of an oﬀence retrospectively. In the present
case the old procedure is revived and no new procedure is given
retrospective eﬀect. The procedure given eﬀect to is not of such
a nature as to result in the creation of a new oﬀence.
(emphasis supplied)”
(x) In the case of Soni Devrajbhai Babubhai (supra), the facts were
that on 13.08.1986, the daughter of the appellant therein had died.
Subsequently, Section 304-B of the IPC was introduced in the
Indian Penal Code through Amending Act No. 43 of 1986, which
CBI v. R.R. KISHORE 39
[VIKRAM NATH, J.]

came into eﬀect on November 19, 1986. The accused (respondent
in the appeal therein) raised a plea that he could not be charged or
tried under Section 304-B of the IPC as, at the time of the oﬀence,
such provision was not in existence. It had been introduced much
later. The Trial Court rejected the said application. However, the
High Court agreed with the contention of the accused-respondent
therein and hold that he could not be tried under Section 304-B as
it was a new oﬀence created subsequent to the commission of the
oﬀence. The Supreme Court upheld the view of the High Court
and rejected the contention of the complainant-appellant.
(xi) In the case of Ajay Agarwal (supra), a two-judge Bench of this
Court while dealing with the provisions of Section 11B of the
Securities and Exchange Board of India Act, 199256, which was
inserted in 1995 held that this provision was procedural in nature
and could be applied retrospectively. It was of the view that for any
law which aﬀects matters of procedure, the same would apply to
all actions, pending as well as future and no procedural amendment
could be said to be creating an oﬀence; and, accordingly, disagreed
with the view of the Appellate Tribunal, and upheld the order passed
by the Chairman, SEBI that retrospective insertion of Section 11B
of the SEBI Act cannot be hit by Article 20(1) of the Constitution.
The Court once again relied on the judgment of the Constitution
Bench in the case of Rao Shiv Bahadur Singh (supra).
34. Although, Mr. Datar, learned counsel has sought to canvass that the
marginal note along with Article 20 of the Constitution refers to protection
in respect of conviction and, therefore, anything which may relate to or may
be a pre-requisite for conviction should stand covered by Article 20(1) of
the Constitution. The enquiry, investigation and trial being pre-requisite are
an essential part on the basis of which, the Court may ultimately arrive at a
conviction for an oﬀence. It was thus submitted that if the enquiry, investigation
and trial stand vitiated for any reason, the conviction itself cannot be sustained.
35. The submission of Mr. Datar, learned counsel is too far-fetched and
gives a very wide and open-ended expanse to Article 20(1) of the Constitution

56 The SEBI Act
40 SUPREME COURT REPORTS [2023] 13 S.C.R.

stretching it even to procedural aspects merely on account of the marginal note. As
already stated, even at the cost of repetition, it may be noted that Article 20(1) of
the Constitution only and only conﬁnes to conviction and sentence. It does not at
all refer to any procedural part which may result into conviction or acquittal and/
or sentence. Accordingly, the argument of Mr. Datar cannot be accepted. Change
in procedure post the oﬀence not attracting Article 20(1) of Constitution has been
the settled law since 1953 enunciated in the Constitution Bench judgment of Rao
Shiv Bahadur Singh (supra).
36. For the reasons recorded above, it can be safely concluded that Article
20(1) of the Constitution has no applicability either to the validity or invalidity
of Section 6A of the DSPE Act.
Retrospective or Prospective application of the judgment in the case
of Subramanian Swamy (supra) (Question No.3).
37. The Constitution Bench in case of Subramanian Swamy (supra)
declared Section 6A of the DSPE Act as unconstitutional on the ground that
it violates Article 14 of the Constitution on account of the classiﬁcation of the
Government servants, to which the said provision was to apply. The invalidity
of Section 6A of the DSPE Act is not on the basis of legislative incompetence or
for any other constitutional violation. In Vineet Narain (supra) this Court had
held that Single Directive No.4.7(3) to be invalid and it was struck down on the
ground that by an administrative instruction the powers of the CBI conferred
under statute could not be interfered with. It was because of the said declaration
that Section 6A was inserted in the DSPE Act in 2003.
38. The question for determination is whether declaration of any law as
unconstitutional by a Constitutional Court would have retrospective eﬀect or
would apply prospectively.
39. Much emphasis has been laid on the interpretation of the word ‘void’
used in Article 13(2) of the Constitution. The same word ‘void’ is used in Article
13(1) of the Constitution also. The judgements relied upon by the parties which
will be shortly discussed hereinafter relate to the interpretation of the said word
‘void’ by various Constitution Benches and a seven-judge Bench and other regular
Benches. In the Oxford dictionary, the word ‘void’ is deﬁned to mean something
is not legally valid or binding, when used as an adjective and further when used
as a verb, it means to declare that something is not valid or legally binding.
CBI v. R.R. KISHORE 41
[VIKRAM NATH, J.]

40. Article 13 of the Constitution has two sub-Articles (1) and (2). It
reads as follows:
“13(1). All laws in force in the territory of India immediately
before the commencement of this Constitution, in so far as they
are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void
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, to the extent of the
contravention, be void.”
41. Under Article 13(1) all existing laws prior to the commencement
of the Constitution, insofar as they are inconsistent with the provisions of
Part-III, would be void to the extent of inconsistency. Further, according to
Article 13(2), the State is prohibited from making any law which takes away
or abridges the rights conferred by Part-III and further that any law made in
contravention of this clause would be void to the extent of contravention.
Article 13(2) prohibits making of any law so it would be relating to laws
made post commencement of the Constitution, like the case at hand. In the
present case, as it has been held that Section 6A of DSPE Act is violative of
Article 14 of Part-III of the Constitution, as such, the same would be void.
The word “void” has been interpreted in a number of judgments of this Court
beginning 1951 till recently and it has been given diﬀerent nomenclature
such as ‘non est’, ‘void ab initio’ ‘still born’ and ‘unenforceable’.
42. A brief reference to the case law on the point would be necessary
at this stage. It may be worthwhile to mention that the earlier seven-judge
Bench and Constitution Bench judgments relate to Article 13(1) of the
Constitution, dealing with pre-existing laws at the time of commencement
of the Constitution. There are later judgments relating to Article 13(2) of
the Constitution. However, reliance is placed upon the judgments on Article
13(1) while interpreting the word ‘void’ used in Article 13(2).
(i) The facts in the case of Keshavan Madhava Menon (supra), was
that a prosecution was launched against the appellant therein under
42 SUPREME COURT REPORTS [2023] 13 S.C.R.

the provision of the Indian Press (Emergency Powers) Act, 193157 for
a publication issued without the necessary authority under Section
15(1) of the said Act, and as such, became an oﬀence punishable
under Section 18 (1) of the same Act. This prosecution had been
launched in 1949 itself and registered as Case No. 1102/P of 1949.
During the pendency of the said proceedings, the Constitution of
India came into force on 26.01.1950. The appellant therein took an
objection that provisions of 1931 Act were ultra vires of Article 19(1)
(a) read with Article 13(1) of the Constitution and would, therefore,
be void and inoperative as such he may be acquitted. The High
Court was of the view that the proceedings pending on the date of
commencement of the Constitution would not be aﬀected even if the
1931 Act was inconsistent with the Fundamental Rights conferred
by Part III of the Constitution. However, the same would become
void under Article 13(1) of the Constitution only after 26.01.1950.
(ii) The seven-judge Bench of this Court gave rise to three separate
opinions: Justice Sudhi Ranjan Das authored the majority judgement
with Chief Justice Kania, Justice M. Patanjali Sastri and Justice N.
Chandrasekhara Aiyar concurring; Justice Mehar Chand Mahajan
authored a separate opinion concurring with the majority view;
Justice Fazal Ali wrote a dissenting judgment with Justice B.K.
Mukherjea agreeing with him. The majority agreed with the view
taken by the High Court. They accordingly dismissed the appeal. Para
16 of the report which contains the dictum is reproduced hereunder:
“16. As already explained above, Article 13(1) is entirely
prospective in its operation and as it was not intended to have any
retrospective eﬀect there was no necessity at all for inserting in that
article any such saving clause. The eﬀect of Article 13(1) is quite
diﬀerent from the eﬀect of the expiry of a temporary statute or the
repeal of a statute by a subsequent statute. As already explained,
Article 13 (1) only has the eﬀect of nullifying or rendering all
inconsistent existing laws ineﬀectual or nugatory and devoid of
any legal force or binding eﬀect only with respect to the exercise

57 In short, “1931 Act”
CBI v. R.R. KISHORE 43
[VIKRAM NATH, J.]

of fundamental rights on and after the date of the commencement
of the Constitution. It has no retrospective eﬀect and if, therefore,
an act was done before the commencement of the Constitution
in contravention of the provisions of any law which, after the
Constitution, becomes void with respect to the exercise of any
of the fundamental rights, the inconsistent law is not wiped out
so far as the past act is concerned, for, to say that it is, will be to
give the law retrospective eﬀect. There is no. fundamental right
that a person shall not be prosecuted and punished for an oﬀence
committed before the Constitution came into force. So far as the
past acts are concerned the law exists, notwithstanding that it does
not exist with respect to the future exercise of fundamental rights.”
However, Justice Fazal Ali was of the view that though there can be no
doubt that Article 13(1) will have no retrospective operation and transactions
which are past and closed, and rights which have already vested will remain
untouched. However, with regard to inchoate matters which were still not
determined when the Constitution came into force, and as regards proceedings
not begun, or pending at the time of enforcement of the Constitution and not
yet prosecuted to a ﬁnal judgment, the answer to this question would be that the
law which has been declared by the Constitution to be completely ineﬀectual,
can no longer be applied. To be precise, paragraph no. 63 of the report from
SCC Online referred has been reproduced hereunder:
“There can be no doubt that Article 13(1) will have no retrospective
operation, and transactions which are past and closed, and rights which
have already vested, will remain untouched. But with regard to inchoate
matters which were still not determined when the Constitution came into
force, and as regards proceedings whether not yet begun, or pending at
the time of the enforcement of the Constitution and not yet prosecuted
to a ﬁnal judgment, the very serious question arises as to whether a law
which has been declared by the Constitution to be completely ineﬀectual
can yet be applied.”
(iii) In the case of Behram Khurshed Pesikaka (supra), a seven-
judge Bench of this Court was considering the legal eﬀect of
the declaration made in the case of State of Bombay Vs. F.N.
44 SUPREME COURT REPORTS [2023] 13 S.C.R.

Balsara58, whereby part of Section 13 clause (b) of the Bombay
Prohibition Act (Act 25 of 1949) was declared unconstitutional. It
was held by the majority opinion that declaration of such provision
as invalid and unconstitutional will only mean that it is inoperative
and ineﬀective and thus unenforceable.
(iv) The Constitution Bench in the case of M.P.V. Sundararamier
and Co. (supra) was dealing with the validity of Sales Tax Laws
Violation Act, 1956. In paragraph 41, while dealing with diﬀerence
between law being unconstitutional on account of it being not
within the competence of the legislature or because it was oﬀending
some constitutional restrictions diﬀerentiated between the two.
Relevant extract is reproduced here under:
“41. Now, in considering the question as to the effect of
unconstitutionality of a statute, it is necessary to remember that
unconstitutionality might arise either because the law is in respect
of a matter not within the competence of the legislature, or because
the matter itself being within its competence, its provisions oﬀend
some constitutional restrictions. In a Federal Constitution where
legislative powers are distributed between diﬀerent bodies, the
competence of the legislature to enact a particular law must
depend upon whether the topic of that legislation has been
assigned by the Constitution Act to that legislature. Thus, a law
of the State on an Entry in List 1, Schedule VII of the Constitution
would be wholly incompetent and void. But the law may be on a
topic within its competence, as for example, an Entry in List II,
but it might infringe restrictions imposed by the Constitution on
the character of the law to be passed, as for example, limitations
enacted in Part III of the Constitution. Here also, the law to the
extent of the repugnancy will be void. Thus, a legislation on a topic
not within the competence of the legislature and a legislation
within its competence but violative of constitutional limitations
have both the same reckoning in a court of law; they are both
of them unenforceable. But does it follow from this that both the

58 (1951) 1 SCR 682
CBI v. R.R. KISHORE 45
[VIKRAM NATH, J.]

laws are of the same quality and character, and stand on the same
footing for all purposes? This question has been the subject of
consideration in numerous decisions in the American Courts, and
the preponderance of authority is in favour of the view that while
a law on a matter not within the competence of the legislature is a
nullity, a law on a topic within its competence but repugnant to the
constitutional prohibitions is only unenforceable. This distinction
has a material bearing on the present discussion. If a law is on a
ﬁeld not within the domain of the legislature, it is absolutely null
and void, and a subsequent cession of that ﬁeld to the legislature
will not have the eﬀect of breathing life into what was a still-born
piece of legislation and a fresh legislation on the subject would
be requisite. But if the law is in respect of a matter assigned to the
legislature but its provisions disregard constitutional prohibitions,
though the law would be unenforceable by reason of those
prohibitions, when once they are removed, the law will become
eﬀective without re-enactment.
(emphasis supplied)”
The distinction drawn was that where a law is not within the domain of
the legislature, it is absolutely null and void. But where a law is declared to
be unconstitutional, then it would be unenforceable and to that extent void,
as per Article 13(2) of the Constitution.
(v) The challenge in the case of Deep Chand (supra) was with
respect to the validity of the Uttar Pradesh Transport Service
(Development) Act, 1955. The Constitution Bench, after discussing
merit of Article 13(2) of the Constitution, was of the ﬁrm view that a
plain reading of the Clause indicates, without any reasonable doubt,
that the prohibition goes to the root of the matter and limits the
State’s power to make law; the law made in spite of the prohibition
is a still born law. The relevant extract which is part of the paragraph
13 (from the AIR reference), is reproduced hereunder:
“13. …A Legislature, therefore, has no power to make any law
in derogation of the injunction contained in Art. 13. Article
13(1) deals with laws in force in the territory of India before the
commencement of the Constitution and such laws in so far as they
46 SUPREME COURT REPORTS [2023] 13 S.C.R.

are inconsistent with the provisions of Part III shall, to the extent
of such inconsistency be void. The clause, therefore, recognizes the
validity of, the pre-Constitution laws and only declares that the said
laws would be void thereafter to the extent of their inconsistency
with Part III; whereas cl. (2) of that article imposes a prohibition
on the State making laws taking away or abridging the rights
conferred by Part III and declares that laws made in contravention
of this clause shall, to the extent of the contravention, be void. There
is a clear distinction between the two clauses. Under cl. (1), a pre-
Constitution law subsists except to the extent of its inconsistency
with the provisions of Part III; whereas, no post-Constitution
law can be made contravening the provisions of Part III, and
therefore the law, to that extent, though made, is a nullity from
its inception. If this clear distinction is borne in mind, much of
the cloud raised is dispelled. When cl. (2) of Art. 13 says in clear
and unambiguous terms that no State shall make any law which
takes away or abridges the rights conferred by Part III, it will not
avail the State to contend either that the clause does not embody
a curtailment of the power to legislate or that it imposes only a
check but not a prohibition. A constitutional prohibition against a
State making certain laws cannot be whittled down by analogy or
by drawing inspiration from decisions on the provisions of other
Constitutions; nor can we appreciate the argument that the words
“ any law “ in the second line of Art. 13(2) posits the survival of
the law made in the teeth of such prohibition. It is said that a law
can come into existence only when it is made and therefore any
law made in contravention of that clause presupposes that the
law made is not a nullity. This argument may be subtle but is not
sound. The words “ any law “ in that clause can only mean an
Act passed or made factually, notwithstanding the prohibition. The
result of such contravention is stated in that clause. A plain reading
of the clause indicates, without any reasonable doubt, that the
prohibition goes to the root of the matter and limits the State’s
power to make law; the law made in spite of the prohibition is a
still- born law.
(emphasis supplied)”
CBI v. R.R. KISHORE 47
[VIKRAM NATH, J.]

(vi) In the case of Mahendra Lal Jaini (supra), again a Constitution
Bench dealing with validity of the U.P. Land Tenures (Regulation
of Transfers) Act, 1952 as also the amendment of 1956 in the
Forests Act, 1957 had the occasion to analyse the diﬀerence
between Article 13(1) and 13(2). Paragraph nos. 23 and 24 of the
report contains the relevant discussion. In paragraph No. 23, it was
laid down that the distinction between the voidness in one case
arises from the circumstance that it was a pre-Constitutional law
and the other is post-Constitutional law. However, the meaning of
the word void is used in both the sub-Articles clearly making the
law ineﬀectual and nugatory, devoid of any legal force or binding
eﬀect in both the cases. Further in paragraph no. 24 of the report,
the Bench proceeds to deal with the eﬀect of an amendment in the
Constitution, with respect to the pre-Constitutional laws, holding
that removing the inconsistency would result in revival of such laws
by virtue of doctrine of eclipse as the pre-existing laws were not
still born. However, in the case of the post-Constitutional laws, the
same would be still born, and as such doctrine of eclipse would not
be applicable to the post-Constitutional laws. Doctrine of eclipse
does not apply in the present case, for Section 6A of the DSPE
Act has been struck down as unconstitutional. There is no attempt
to re-legislate this provision by removing the illegality resulting
in unconstitutionality. We may beneﬁcially reproduce paragraph
nos. 23 and 24 of the said report hereunder:
“23. It is however urged on behalf of the respondents that this
would give a diﬀerent meaning to the word ‘void” in Art. 13 (1).
as compared to Art. 13 (2). We do not think so. The meaning of the
word “void” in Art. 13 (1) was considered in Keshava Madhava
Menon’s caseand again in Behram Khurshed Pesikaka’s caseIn
the later case, Mahajan, C. J., pointed out thatthe majority in
Keshava Madhava Menon’s case (3) clearly held that the word
“void” in Art. 13(1) did not mean that the statute stood repealed
and therefore obliterated from the statute book; nor did it mean
that the said statute was void ab initio. This, in our opinion if we
may say so with respect, follows clearly from the language of Art.
13(1), which presupposes that the existing laws are good except
48 SUPREME COURT REPORTS [2023] 13 S.C.R.

to the extent of the inconsistency with the fundamental rights.
Besides there could not be any question of an existing law being
void ab initio on account of the inconsistency with Art. 13(1),
as they were passed by competent legislatures at the time when
they were enacted. Therefore, it was pointed out that the eﬀect
of Art. 13(1) with respect to existing laws insofar as they were
unconstitutional was only that it nulliﬁed them, and made them
“’ineﬀectual and nugatory and devoid of any legal force or binding
eﬀect”. The meaning of the word “void” for all practical purposes
is the same in Art. 13(1) as in Art. 13(2), namely, that the laws
which were void were ineﬀectual and nugatory and devoid of
any legal force or binding eﬀect. But the pre-Constitution laws
could not become void from their inception on account of the
application of Art. 13(1) The meaning of the word ‘,’void” in
Art. 13 (2) is also the same viz., that the laws are ineﬀectual and
nugatory and devoid of any legal force on binding eﬀect, if they
contravene Art. 13(2). But there is one vital diﬀerence between
pre-Constitution and post-Constitution laws in this matter. The
voidness of the pre-Constitution laws is. not from inception. Such
voidness supervened when the Constitution came into force;
and so, they existed and operated for some time and for certain
purposes; the voidness of post-Constitution laws is from their
very inception and they cannot therefore continue to exist for
any purpose. This distinction between the voidness in one case and
the voidness in the other arises from the circumstance that one is a
pre-Constitution law and the other is a post-Constitution law; but
the meaning of the word void” is the same in either case, namely,
that the law is ineﬀectual and nugatory and devoid of any legal
force or binding eﬀect.
24. Then comes the question as to what is the effect of an
amendment of the Constitution in the two types of cases. So far
‘as pre-Constitution laws are concerned the amendment of the
Constitution which removes the inconsistency will result in the
revival of such laws by virtue of the doctrine of eclipse, as laid
down in Bhikaji Narain’s case (1) for the pre-existing laws were
not still-born and would still exist though eclipsed on account of
CBI v. R.R. KISHORE 49
[VIKRAM NATH, J.]

the inconsistency to govern_ pre-existing matters. But in the case
of post- Constitution laws, they would be still born to the extent
of the contravention. And it is this distinction which results
in the impossibility of applying the doctrine of eclipse to post-
Constitution laws, for nothing can be revived which never had
any valid existence. We are therefore of opinion that the meaning
of the word “void” is the same both in Art 13 (1) and Art. 13 (2),
and that the application of the doctrine of eclipse in one case
and not in the other case does not depend upon giving a diﬀerent
meaning to the word “void’ in the two parts of Art. 13; it arises from
the inherent diﬀerence between Art. 13 (1) and Art. 13 (2) arising
from the fact that one is dealing with pre-Constitution laws, and
the other is dealing with post- Constitution laws, with the result
that in one case the laws being not still-born the doctrine of eclipse
will apply while in the other case the laws being still born-there
will be no scope for the application of the doctrine of eclipse.
Though the, two clauses form part of the same Article, there is a
vital diﬀerence in the language employed in them as also in their
content and scope. By the ﬁrst clause the Constitution recognises
the existence of certain operating laws and they are declared void,
to the extent of their inconsistency with fundamental rights. Had
there been no such declaration, these laws would have continued
to operate. Therefore, in the case of pre- Constitution laws what an
amendment to the Constitution does is to remove the shadow cast
on it by this declaration. The law thus revives. However, in the
case of the second clause, applicable to post Constitution laws,
the Constitution does not recognise their existence, having been
made in deﬁance of a prohibition to make them. Such deﬁance
makes the law enacted void. In their case therefore there can be
no revival by an amendment of the Constitution, MO though
the bar to make the law is removed, so far as the period after
the amendment is concerned. In the case of post- Constitution
laws, it would be hardly appropriate to distinguish between laws
which are wholly void-as for instance, those which contravene
Art. 31-and those which are substantially void but partly valid, as
for instance, laws contravening Art. 19. Theoretically, the laws
50 SUPREME COURT REPORTS [2023] 13 S.C.R.

falling under the latter category may be valid qua non-citizens;
but that is a wholly unrealistic consideration and it seems to us
that such nationally partial valid existence of the said laws on
the strength of hypothetical and pedantic considerations cannot
justify the application of the doctrine of eclipse to them. All post
Constitution laws which contravene the mandatory injunction
contained in the ﬁrst part of Art. 13 (2) are void, as void as are
the laws passed without legislative competence, and the doctrine
of eclipse does not apply to them. We are therefore of opinion that
the Constitution (Fourth Amendment) Act cannot be applied to
the Transfer Act in this case by virtue of the doctrine of eclipse It
follows therefore that the Transfer Act is unconstitutional because
it did not comply with Art. 31 (2), as it stood at the time it was
passed. It will therefore have to be struck down, and the petitioner
given a declaration in his favour accordingly.
(emphasis supplied)”
(vii) In the case of State of Manipur (supra), recently a three-judge
Bench of this Court, was dealing with an appeal against the
judgement of the Manipur High Court which had declared the
Manipur Parliamentary Secretary (Appointment, Salary and
Allowances and Miscellaneous Provisions) Act, 2012 (Manipur Act
No. 10 of 2012) as also the Repealing Act, 2018, as unconstitutional.
Justice L. Nageswara Rao, speaking for the Bench, observed that
where a statute is adjudged to be unconstitutional, it is as if it had
never been and any law held to be unconstitutional for whatever
reason, whether due to lack of legislative competence or in
violation of fundamental rights, would be void ab initio. Paragraph
Nos. 22 and 23 of the said judgment are reproduced hereunder:
“22. Where a statute is adjudged to be unconstitutional, it is as
if it had never been. Rights cannot be built up under it; contracts
which depend upon it for their consideration are void; it constitutes
a protection to no one who has acted under it and no one can be
punished for having refused obedience to it before the decision was
made. Field, J. in Norton v. Shelby County, observed that “an
unconstitutional act is not law, it confers no rights, it imposes
CBI v. R.R. KISHORE 51
[VIKRAM NATH, J.]

no duties, it aﬀords no protection, it creates no oﬃce; it is, in
legal contemplation, as inoperative as though it had never been
passed”.
23. An unconstitutional law, be it either due to lack of legislative
competence or in violation of fundamental rights guaranteed
under Part III of the Constitution of India, is void” ab initio.
In Behram Khurshid Pesikaka v. State of Bombay, it was held
by a constitution bench of this Court that the law-making power
of the State is restricted by a written fundamental law and any
law enacted and opposed to the fundamental law is in excess of
the legislative authority and is thus, a nullity. A declaration of
unconstitutionality brought about by lack of legislative power
as well as a declaration of unconstitutionality brought about by
reason of abridgement of fundamental rights goes to the root of
the power itself, making the law void in its inception. This Court
in Deep Chand v. State of Uttar Pradesh & Ors. summarised the
following propositions:
“(a) Whether the Constitution aﬃrmatively confers power on the
legislature to make laws subject-wise or negatively prohibits it
from infringing any fundamental right, they represent only two
aspects of want of legislative power;
(b) The Constitution in express terms makes the power of a
legislature to make laws in regard to the entries in the Lists of the
Seventh Schedule subject to the other provisions of the Constitution
and thereby circumscribes or reduces the said power by the
limitations laid down in Part III of the Constitution;
(c) It follows from the premises that a law made in derogation
or in excess of that power would be ab initio void…
(emphasis supplied)”
Further after discussing the law laid down by the previous pronouncements,
the principles were deduced in paragraph no. 28 to state that a statute declared
unconstitutional by a court of law would be still born and non est for all
purposes. Paragraph 28 of the report is reproduced hereunder:
52 SUPREME COURT REPORTS [2023] 13 S.C.R.

“28. The principles that can be deduced from the law laid down by this
Court, as referred to above, are:
I. A statute which is made by a competent legislature is valid till
it is declared unconstitutional by a court of law.
II. After declaration of a statute as unconstitutional by a court
of law, it is non est for all purposes.
III. In declaration of the law, the doctrine of prospective overruling
can be applied by this Court to save past transactions under earlier
decisions superseded or statutes held unconstitutional.
IV. Relief can be moulded by this Court in exercise of its power
under Article 142 of the Constitution, notwithstanding the
declaration of a statute as unconstitutional.
(emphasis supplied)”
43. From the above discussion, it is crystal clear that once a law is
declared to be unconstitutional, being violative of Part-III of the Constitution,
then it would be held to be void ab initio, still born, unenforceable and
non est in view of Article 13(2) of the Constitution and its interpretation
by authoritative pronouncements. Thus, the declaration made by the
Constitution Bench in the case of Subramanian Swamy (supra) will have
retrospective operation. Section 6A of the DSPE Act is held to be not in
force from the date of its insertion i.e. 11.09.2003.
44. As indicated in the earlier part of this judgment, this Court has not
delved into the other issues and arguments not germane to the reference order.
45. Accordingly, the matters may be placed before the appropriate Bench
to be heard and decided on merits.

Headnotes prepared by: Matters be placed before appropriate Bench
Bibhuti Bhushan Bose
Assisted by: Shubhanshu Das, LCRA

Search Indian case law

Ask in plain English, not just keywords. 25,000 AI words free, no card.

Try "Section 6A"Sign in to search