Thread by @lawbarandbench

A Constitution Bench of the Supreme Court will shortly hear a case relating to the retrospective application of immunity against arrest for lawmakers.

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Hearing begins.

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Senior Advocate Arvind Datar begins, reads the reference order.

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Solicitor General Tushar Mehta reads reference order.

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Dr RR Kishore appears in person: The Union, very rightly so, filed a very detailed affidavit agains the CBI and that affidavit was not filed by themselves. A division bench gave suo moto notice to them.

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Kishore: Union has stated that CBI action was not legal.

[Reads from affidavit] #SupremeCourt

Kishore: Please see the supplimentary compilation for directions in Vineet Narain.

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Kishore: After Union's Affidavit, nothing survives in the CBI'S appeal. [Cites old age of respondent]

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Kishore: Question of retrospectivity does not arise. Prosecution for many were not granted by govt of India, so how can they be prosecuted now.

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Bench discusses.

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Justice Kaul: You are saying it should be interpreted as prospective because the protection does not exist? Your nuance is that it is a protective regime, and if HC lifts that it should not apply retrospectively, correct? Just trying to rephrase.

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Counsel mentions Subramanian Swamy judgment and the series of judgments since.

Kishore: Law has constantly been in a state of flux.

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Justice Kaul: With due respect, not all these contentions will hold.

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Justice Khanna: Mr Kishore limit your submissions to the specific issue and not a particular case, else it will get too broad.

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Justice Kaul: Your concern is normally a judgment lays down the law, and unless specified is only applicable prospectively. Have I understood you correctly?

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SC: The Principle is law will apply as declared, but Court can say it will only apply prospectively as well. There may be such situations where methodology of prosecution declared ultra vires, can we say that those already prosecuted their proceedings continue?

Bench makes clear that once a law is held invalid it is struck off the statute books.

SC: If this is not the case, always willing to learn.

Kishore: Please see judgments of American Supreme Court.

SC: Show to us one judgment of this Court. Either 1 is good or 20 are not.

Bench discusses.

Kishore begins reading a judgment

SC: Cannot read it like a statute. best case forward is only that it was a protective measure available to you that was declared ultra vires, which legislature brought back removing earlier discrimination.

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Justice Kaul: We have to deal with the complications arising during the hiatus after the Swamy judgment.

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Kishore continues to read from pleadings.

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Kishore ends submissions by saying the appeal of CBI does not survive.

SC: Being a Constitutional Court it would not be advisable to get into academic areas.

Justice Khanna: If you can bring it within 4 corners of the reference point of law it is fine.

Counsel: Would not ...

Counsel: try otherwise.

Justice Oka: You can enjoy your vacation in Delhi.

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Sr Adv Arvind Datar continues: If we try and bring in concepts of contract law in Constitutional cases, terms like void have different meaning. Will lordships resd protections into Article 20?

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Datar: It is my humble request is that this Court declaring a law invalid or unconstitutional, it should also specify the consequences of the judgment.

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Datar argues that judgments doing away with protections should be prospective.

Justice Kaul: It has troubled me, but it was struck down because it was discriminating ... Legislation in its wisdom says now we will widen protection, and give it even to retired.

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SC: People in any of these categories will get protection. How should court read into what happened during the hiatus?

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Datar: Regular Bench can deal with question of sanction. My submission is law is not completely struck off records when held unconstitutional but clarified.

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Datar reads from judgments

Justice Khanna points out there have been Amendments from time to time that continued protections.

Datar: I would request this Bench not take Articles 20 and 21 in separate silos.

SC: Not saying that, saying procedural part under one and substantial under other

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Datar: I dare say the protection was there from much before, then later through statute. I am asking for protection in respect of conviction.

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Bench to continue hearing post lunch.

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Justice Kaul: My larger concern is it will create a scenario where will have to protect all retrospectively

Datar: I am only saying once a law is void, it is void from the beginning itself, nothing survives.

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Justice Kaul: Are we interpreting the Subramanian Swamy judgment here?

Datar: I am only saying the effect of the judgment may need to be clarified.

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[Court not audible]

Datar reads from judgments.