Sec 6A Of The Delhi Special Police Establishment Act Cannot Be Applied Retrospectively: Supreme Court

Case title: CBI Vs R.R Kishore

Case no.: Criminal Appeal No.377 Of 2007

Decided on: 11.09.2023

Quorum: Hon’ble Justice Sanjay Kishan Koul, Hon’ble Justice Sanjiv Khanna, Hon’ble Justice Abhay S. Oka, Hon’ble Justice Vikram Nath, Hon’ble Justice J.K Maheshwari.


Hon’ble Justices stated 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, still born, unenforceable and non est in view of Article 13(2) of the Constitution and its interpretation by authoritative pronouncements. Thus, the declaration made by the Constitution Bench in the case of Subramanian Swamy will have retrospective operation. Section 6A of the DSPE Act is held to be not in force from the date of its insertion i.e. 11.09.2003.”


The story begins with the CBI registering an FIR against a Radiologist for offences under the Prevention of Corruption Act, 1988. Later they laid a trap and the radiologist is said to have accepted a bribe. A charge sheet was filed and before the Special Judge and the Radiologist filed a discharge petition. The main contention in that petition was that the trap which was a part of the enquiry/investigation had been laid without the previous approval of the Central Government as provided under Section 6A of the Delhi Special Police Establishment Act, 1946. Though the Special Judge rejected this discharge plea, the High Court of Delhi allowed his revision petition and held that the CBI acted in contravention of Section 6A DSPE Act. Against this judgment, the CBI approached the Apex Court.

During the pendency of this appeal, the constitution bench judgment Subramanian Swamy vs. Director, Central Bureau of Investigation was delivered, which held that  Section 6A(1) of the DSPE Act was held to be invalid.

So when the appeal came up before the bench again, the CBI contended that Section 6A(1) has been declared to be unconstitutional,  the judgment of the High Court deserves to be set aside and the prosecution should be allowed to continue with the proceedings from the stage of rejection of discharge application. In other words, the CBI contended that the Constitution bench judgment striking down Section 6A would have retrospective effect. On the other hand, the accused contended that this judgment could not have any retrospective operation. The court has placed this case before the constitutional bench to decide the matter at hand.


Taking into account the nuance of Article 13(2), the court ruled that the State is prohibited from making any law that takes away or limits the rights conferred by Part-III, and that any law made in violation of this clause is void to the extent of the violation. Article 13(2) prohibits the making of any law, so it would apply to laws enacted after the Constitution’s inception, such as the case at hand. In this case, it has been determined that Section 6A of the DSPE Act violates Article 14 of Part III of the Constitution, rendering it void.

The court additionally clarified how the word “void” must be construed. It noted that “void” has been interpreted in a number of judgements of this Court from 1951 to the present, and has been given various names such as ‘non est’, ‘void ab initio’, ‘still born’, and ‘unenforceable’.

The court stated that once a statute is deemed unconstitutional for violating Part III of the Constitution, it is void ab initio, still born, unenforceable, and non-existent under Article 13(2) of the Constitution.

Hence, the appeal of CBI is allowed and set aside the order of high court.


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Written by – Surya Venkata Sujith

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