Two years after it ended the 'single directive' that acted as a shield to high ranking public servants against prosecution in corruption cases, the Supreme Court will now decide whether its decision will apply to cases already decided in the past.
A bench of Justices Ranjan Gogoi and PC Pant last week decided to refer this question to Chief Justice of India after realizing that the earlier decision given by the apex court was by a five-judge Constitution Bench.
In May 2014, the Supreme Court had done away with Section 6A(1) of the Delhi Special Police Establishment Act. This provision was a restriction on the power of the Central Bureau of Investigation (CBI) to probe a case of corruption against officers in the Central Government above the rank of Joint Secretary. The agency was required to take prior sanction from the Central Government, which thwarted any attempt to nail the role of high ranking Government officials.
The bench of Justices Gogoi and Pant realized that the five-judge bench decision did not speak on the retrospective operation of its judgment. This question had become relevant as there are many cases pending in appeal before the apex court where the CBI relied on the May 2014 ruling given in Subramanian Swamy v Director CBI to knock out the plea of high profile government servants accused of corruption.
In one such case, the CBI prosecuted a former Chief Medical Officer of South Delhi District on charges of bribery. The incident occurred in 2004 when the officer RR Kishore, who enjoyed a rank equivalent to Joint Secretary in Central Government, was arrested for receiving a bribe of Rs35000 from the owner of a diagnostic centre caught for conducting illegal sex determination test. Kishore was given the benefit of Section 6A(1) of DSPE Act by the Delhi High Court. CBI filed an appeal in apex court and it was during this time the decision in Subramanian Swamy was delivered by the apex court.
Making it a fit case for reference to a larger bench, the bench of Justices Gogoi and Pant in their common order said, "The provisions of Section 6A(1) 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 Indian Constitution is the moot question that arises for determination in the present case."
Article 20 provides that no accused shall be convicted of any offence except for violation of a law in force at the time of commission of the act charged as an offence against such an accused.