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VIKRAM NATH, J.

Crl. Appeal No.377/2007.

1. This Constitution Bench has been constituted to consider whether the declaration made by a Constitution Bench of this Court, in the case of Subramanian Swamy vs. Director, Central Bureau of Investigation and another1, that Section 6A of the Delhi Special Police Establishment Act, 1942 being unconstitutional, can be applied retrospectively in context with Article 20 of the Constitution. 1 (2014) 8 SCC 682 2 In short ‘DSPE Act’

2.4. The said appeal is pending since 2007. During the pendency of the appeal Section 6A(1) of the DSPE Act was held to be invalid and violative of Article 14 of the Constitution by a Constitution Bench vide judgment dated 06.05.2014 in the case of Subramanian Swamy (supra).

Paragraph 99 of the said report which makes the above declaration is reproduced hereunder:

“99. In view of our foregoing discussion, we hold that Section 6A(1), which requires approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the PC Act, 1988 where such allegation relates to: (a) the employees of the Central Government of the level of Joint Secretary and above, and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, government companies, societies and local authorities owned or controlled by the Government, is invalid and violative of Article 14 of the Constitution. As a necessary corollary, the provision contained in Section 26(c) of Act 45 of 2003 to that extent is also declared invalid.”

(7) The State of Manipur & Ors. Vs. Surjakumar Okram & Ors.20;

10.10. The common opinion culled out from the various opinions rendered in the above judgments is that such declaration makes the law unenforceable and such unenforceability relates back. It was, thus, submitted that judgment in the case of Subramanian Swamy (supra) relates back to the point when Section 6A was inserted in the DSPE Act.

19 (1969) 1 SCC 475 20 2022 SCC Online SC 130 10.11. Further submission is that a decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency as it is assumed that what is enunciated by this Court is in fact the law from inception. There can be no prospective overruling unless expressly indicated in clear and positive terms. If the Constitution Bench in the case of Subramanian Swamy (supra) had any intentions of declaring that the same would be prospective in application, then the same should have been specifically and discretely stated therein. In absence of such declaration, the natural assumption is that the same is retrospective applying the Blackstonian theory of precedence.

36. For the reasons recorded above, it can be safely concluded that Article 20(1) of the Constitution has no applicability either to the validity or invalidity of Section 6A of the DSPE Act.

Retrospective or Prospective application of the judgment in the case of Subramanian Swamy (supra) (Question No.3).

37. The Constitution Bench in case of Subramanian Swamy (supra) declared Section 6A of the DSPE Act as unconstitutional on the ground that it violates Article 14 of the Constitution on account of the classification of the Government servants, to which the said provision was to apply. The invalidity of Section 6A of the DSPE Act is not on the basis of legislative incompetence or for any other constitutional violation. In Vineet Narain (supra) this Court had held that Single Directive No.4.7(3) to be invalid and it was struck down on the ground that by an administrative instruction the powers of the CBI conferred under statute could not be interfered with. It was because of the said declaration that Section 6A was inserted in the DSPE Act in 2003.