Source: Supreme Court

Why in News?

The constitutional bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath, and JK Maheshwari observed that Section 6A of Delhi Special Police Establishment Act, 1946 (DSPE) is void ab intio.

• The Supreme Court gave this observation in the matter of Central Bureau of Investigation v. Dr RR Kishore.

Background

• The matter is related to the arrest made by the Central Bureau of Investigation (CBI) under the DSPE Act without prior sanction from the Central Government.
  • As the law mandates a prior sanction in case of arrest of an officer of the rank of joint secretary and above in corruption cases.
  • It was contended that the arrest has been made under Section 6A (2) of the DPSE Act.
• The Delhi High Court held that the said Section 6A will not be applicable in this case and CBI was directed to seek the central government's approval for reinvestigation.
• CBI filed an appeal before the SC, but during the pendency of appeal, Section 6A was adjudged as unconstitutional in the case of Subramanian Swamy v. Director, CBI and Another (2014).
• The matter was then referred to a constitutional bench to decide the application of the ruling given in Subramanian Swamy case and its retrospective effects.

Court’s Observation

• The SC held that 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, stillborn, unenforceable and non est in view of Article 13(2) of the Constitution.
• The court further said that the declaration made by the constitution bench in the case of Subramanian Swamy will have retrospective operation.
• Hence, Section 6A of the DSPE Act is held not to be in force from the date of its insertion i.e., 11th September 2003.

Position of Post Constitutional Laws

• Article 13 of the Constitution of India, 1950 deals with the consistency of pre and post constitutional law with the Part III of the Constitution.
• Article 13 (2) states that 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.
• Clause 2 of the Article invalidates the laws which were enacted after the commencement of the Constitution and are derogatory to Part III of the Constitution.
  • These laws are commonly known as Post Constitutional Laws.
• Article 13(2) acts as a robust safeguard for fundamental rights.
  • It ensures that the State, in its legislative capacity, does not infringe upon the core principles of justice, equality, and liberty enshrined in the Constitution.
• Article 13(2) applies only to laws made by the "State" which includes the Central Government, State Governments, and Local or other authorities.
  • It does not extend to the actions of private individuals or entities unless they are acting as agents of the state.
• 44th Amendment of the Constitution clarified that the ‘law’ under Article 13(2) includes constitutional amendments under Article 368.
• The SC, through its verdicts in several cases clarified that the post-constitutional laws which are adjudged void by a Court will be void from its enforcement.

Landmark Cases

• Mahendra Lal Jaini v. The State Of Uttar Pradesh And Anr. (1968):
  • The SC held that 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.
  • The court held that “All post constitution laws which contravene the mandatory injunction contained in the first part of Article 13 (2) are as void as are the laws passed without legislative competence”.
• The State of Gujarat and Another v. Shri Ambica Mills Ltd. (1974):
  • The SC held that “When Article 13(2) uses the expression ‘void’, it can only mean void as against persons whose fundamental rights are taken away or abridged by law”.
• The State of Manipur & Ors. v. Surjakumar Okram & Ors. (2022):
  • The SC laid down the following principles:
    • A statute which is made by a competent legislature is valid till it is declared unconstitutional by a court of law.
    • After declaration of a statute as unconstitutional by a court of law, it is non est for all purposes.
    • 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.
    • Relief can be moulded by the Court in exercise of its power under Article 142 of the Constitution, notwithstanding the declaration of a statute as unconstitutional.