Thread by @lawbarandbench

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

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Solicitor General begins submissions, says reference itself was not required.

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Justice Kaul: I think the arguments have gone beyond what the issue was before us. There is a protection provided to officers which continues for a long period. Ultimately the statutory provision was struck down..

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Justice Kaul: .. because it was discriminatory, not because it was bad in law. Grant of protection perse was not held to be bad in law.

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Justice Kaul; What was held was.. you cannot give protection to one group and not to the other. This is the limited issue.

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Justice Kaul: Now, to some extent it's theoretical in nature because what would happen for the interim period.. but let's look at the facts of the petitioner..

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Justice Kaul: He says that as far as I'm concerned, I'm still protected merely because the because the protection was lifted for some period of time it should not damage.

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Justice Kaul: To our mind, the most crucial aspect is.. it was not merely a re-enacating of legislation which took place where it was held that it was bad in law.

But on the ground of a particular defect, which stands cured, would you agree this is the position?

Justice Kaul: One aspect that Mr Datar said that I find some force which is the larger issue.. when such provisions struck down, he says the court must give some guidance. Some scenarios may be taken into account.

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SG: I also join in this submission.. may I paraphrase? The reference is on the ground that whether the deletion of the provision would affect Article 20 or not.. now the reference is made in transmissions corporation.

SG: There are two aspects which Your Lordships must be assisted with.

No. 1) It was not a case where a procedure was sought to be amended. It was a case of a penal provision.

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SG: Nobody brought before the bench a binding judgment of this court which holds two things: Article 20 does not apply to procedural provisions, second for deciding contours of Article 20 - US judgements are not valid.

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Court: We are not looking into the substantive and procedural distinction.

We feel a lot of this may have become infructuous. Yes, the petitioner finds himself in a peculiar position.

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SG: There are two apprehensions:

1) Section 6 a was brought in force by the govt to protect officers of the level of joint secretary and up. The reason was that the decision making process.. that is now set aside.

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SG: 17 a is couched in a different way and is also under challenge for being contrary to Subramanian Swamy judgment.

But I submit, 17 a is different.

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SG shows the court 17 a of the Prevention of Corruption Act.

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SG: At the level of officers below.. at some stage you have to take a call.

Court: It's a check or a protection for any government servant. It's a bona fide exercise of the decision making process.

SG: If your Lordships say that 17a is just an avatar of 6a, that may have an effect on pending proceedings where they say..

Court: What we were saying was 17a seeks to cure the defect that it was discriminatory.

SG: The law whereby the bench dealers a declaration of unconstitutionality to be prospective only is derived from Article 141 and 142. There is no other jurisdiction.

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SG: whenever a bench decides, that bench knows what has transpired before that and what would be the consequence if prospectivity is not given. It is only that bench which decides.

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SG: if any other bench were to decide, we'll have a floodgates of litigations.

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Court: When striking down a provision as unconstitutional.. the bench is expected to look into the issue of consequently.

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SG: One last apprehension, they refer to larger bench saying effect of Article 20 needs to be examined. In 2010, constitution bench said it has become academic. May I show 3-4 judgments on Article 20?

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SG: I join my ld. Friend in the request that there may be some guidance for the future that while declaring a provision to be unconstitutional, the bench itself decides whether it should be prospective..

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Court: Instead of guidance, we'll flag this issue. It's a little consciousness call..

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SG: We have analysed a list of judgments where it's been examined prospective overruling doctrine can be applied or not.

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SG takes court through the judgments.

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SG: here their case is that I'm being tried in a procedure which is different from the procedure I had, which was no trial without sanction. 20(1) is completely out.

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SG shows the court General Clauses Act.

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SG: All these judgments were considering legislative enactments which were challenged on the ground that they violate fundamental rights namely Article 20. A judgment can never violate fundamental rights.

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SG: the argument is unless you include procedural part in Article 20, the law in Subramanian Swamy would affect my Article 20 rights. Its a wider provision, if that can ever be raised.

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SG: Mere change in procedure.. would not be hit by Article 20.

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ASG SV Raju addresses the court on the aspect of the effect of the immunity continuing, shows provisions of th Act.

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ASG: Under the Act, other than those under the Delhi Special Police Act, are entitled to investigate. The prohibition is only with respect to officers under the DPSC.

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ASG: this should have been considered in Subramanian Swamy.

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ASG: Therefore, this immunity is not a total immunity.. there are contingencies or situations where the officer concerned, despite Section 6A not having been followed, can still be prosecuted and the trial can be conducted.

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ASG: Suppose it is held to be prospective, and 6 a on the date it was enacted till the judgment was in force and applies.

Then, two situations would arise- one is, evidence is yet to be collected because approval is pending or evidence has been collected in breach of 6a.

ASG: If in breach of a statutory provision, evidence has been collected - what would be the effect? Even assuming that 6a is mandatory, would they get any protection? According to me, no. Court can still take cognisance.

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ASG: Suppose evidence is not collected, now there is no question of giving approval since 6a is not in force. They will have to take approval under 17a.

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ASG: Suppose there has been a breach of 6a, it doesn't preclude further investigation after taking permission. L

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Sr Adv Amit Desai: The issue before Your Lordships is a very narrow one. The question is only whether the judgment should be made prospective or not.

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Sr Adv Desai: My ld. Friend just now has opened up some issues which have very serious implications, entire body of law which has not been placed before your Lordships.

Sr Adv Desai: 6a came into the Statute in 2003, it was not there when these judgment of the 90s came.

The principle of 6a was really a safeguard to the commencement of an enquiry or an investigation. Nothing more than that.

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Sr Adv Desai: The underlying principle for that was essentially that to even commence an investigation causes harassment to a public servant. Therefore, somebody within the govt will make an assessment of the allegation and determine whether it's a fit case.

Sr Adv Desai distinguishes between public servant and government servant.

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Court rises for lunch. Hearing to continue at 2 pm.

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Hearing resumes.

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Ser Adv Desai takes the court through case law.

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Senior Advocate Datar makes submissions: This is a time where we can really look at 20(1) again. Now..

Justice Kaul: Procedure and substantive is different situation. In view of Constitution Benches, we cannot import a US point of view to India. To that extent..

Justice Kaul: .. Solicitor is right. That means you are seeking reference to a seven judges bench.

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Sr Adv Divan: I don't see any reason why our Article 20(1) which is borrowed from the US constitution admittedly.. it's not binding.

Justice Kaul: To expand like this.. knowing our criminal justice system.. there are not enough issues already that to now traverse a path which..

Sr Adv Divan: SC should not be faulted for referring to US judgments.

Justice Kaul: When we are dealing with the Constitution.. we are not putting a blanket ban.. it depends on wording.

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Sr Adv Divan: I am summarising, there is no prohibition, there is no allergy for referring to foreign Constitutions. It can be referred.

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Sr Adv Divan: I am saying that in this case prospective overruling doesn't come.

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Sr Adv Divan: One test by the court would be, if this was done by the legislature - would it fall for the ex post facto rules.

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Petitioner in person RR Kishore submits: My humble perceptions is, the law.. pendency should not be made a ground for the change of applicability of law. While I say so..

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Kishore: Law cannot be subordinated to fortuity.

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Kishore: Retrospective application of the Subramanian Swamy judgment in the respondents case means that it is the pendency of the case which will determine which law should be applicable.

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RR Kishore: If there is a statutory requirement contemplating some kind of sanction and it is not taken then the proceedings are valid.

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RR Kishore shows a judgment: There has to be meticulous compliance w law and any violation constitutes prejudice.

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Hearing concludes.

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