A law that provided conditional protection to senior civil servants from corruption-related prosecution will cease to apply not just from the day it was struck down in 2014 but from the day it was enacted in 2003, a five-judge constitution bench clarified on Monday.
“It is crystal clear that once a law is declared to be unconstitutional… it would be held to be void ab initio (having no legal effect from inception), stillborn, unenforceable and non est (missing, to be ignored),” the bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K. Maheshwari ruled.
A previous five-judge constitution bench had in May 2014 shot down as unconstitutional Section 6A of the Delhi Special Police Establishment Act of 1942, which governs the functioning of the CBI.
Section 6A, enacted on September 11, 2003, provided officers ranked joint secretary or higher with immunity from prosecution for corruption-related offences unless there was prior sanction from the central government. No such immunity was available to staff below the level of joint secretary.
In May 2014, on a petition from BJP politician Subramanian Swamy, a five-judge bench ruled that the section discriminated against two classes of central government officials and staff, thus violating Article 14 (fundamental right to equality).
However, doubts arose in various corruption cases relating to whether Section 6A would cease to operate only from May 2014.
On Monday, the constitution bench clarified that the May 2014 judgment would have “retrospective operation” and Section 6A would be “held to be not in force from the date of its insertion i.e. 11.09.2003”.