Retrospective immunity against arrest: Judgement pronouncement

Retrospective Immunity Against Arrest

Judges: S.K. Kaul J, Sanjiv Khanna J, A.S. Oka J, Surya Kant J, J.K. Maheshwari J

A 5-Judge Constitution Bench declared that public officials cannot enjoy immunity against arrest after the provision which granted such immunity is struck down following their arrest. Justice Vikram Nath read out the judgement today. 


In 2004, Dr. R.R. Kishore, the Chief District Medical Officer in the Government of Delhi, was arrested by the Central Bureau of Investigation (CBI) while accepting a bribe. Kishore challenged the arrest claiming that the CBI did not obtain the mandatory Union approval under Section 6A(1) of the Delhi Special Police Establishment Act, 1946 (the Act) to arrest him.

Section 6A mandates prior approval from the Union Government before conducting any investigation or inquiry under the Prevention of Corruption Act, 1988 against a State official at a Joint Secretary level or higher. A Chief District Medical Officer, like Kishore, is a Joint Secretary level rank officer. 

Prior to Kishore’s arrest, an FIR was filed against him for demanding a bribe and the case was handed over to the CBI for investigation. The CBI successfully laid a trap to catch him in the act. 

On 5 October 2006, the Delhi High Court held that Kishore’s arrest was illegal. The CBI contended that Union Government approval was not necessary since Kishore was arrested while accepting a bribe. Kishore countered that laying the trap and subsequent events were all part of the investigation and required the Union Government’s sanction.

The High Court observed that the arrest occurred after a case had been registered and the investigation was underway. Therefore, prior approval from the Union government was required. 

On 3 January 2007, the CBI filed an appeal against the High Court’s decision at the Supreme Court.

In 2014, a 5-judge Constitution Bench of the Supreme Court, in Dr. Subramanian Swamy v Director, Central Bureau of Investigation, struck down Section 6A(1) of the Delhi Special Police Establishment Act, 1946, for violating the Right to Equality. The Court held that immunity cannot be restricted to a certain rank of officers. This Judgment raised questions on whether Kishore could still claim immunity under the invalidated provision since he was arrested prior to the decision.

On 10 March 2016, a 2-Judge Bench in the present case observed that Subramanian Swamy (2014) did not mention if the Judgment would apply retrospectively or prospectively. 

Therefore, the Bench referred the matter to a 5-judge Constitution Bench to decide if the 2014 decision meant that officials with cases pending against them could be deprived of their immunity retrospectively.

On 2 November 2022, a 5-judge Constitution Bench comprising Justices S.K. Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, J.K. Maheshwari concluded hearing arguments and reserved Judgment.

Section 6A is only procedural 

The Court considered whether Section 6A forms a part of the procedure of investigation or if it introduces a new offence or sentence under the Delhi Special Police Establishment Act, 1946. Justice Nath read out that Section 6A only mandated a process where the prior approval of the Union government was needed before initiating an inquiry or investigation against officials. It did not constitute a separate offence based on whether the approval was sought or not.  

Article 20(1) irrelevant in context of Section 6A 

Article 20(1) deals with conviction of an offence by ‘a law in force at the time of the commission of the act’. The Bench had to decide whether Article 20(1) also protects the immunity of the accused at the time of the commission of the offence. 

The Bench held that Article 20 is irrelevant in the context of the validity of Section 6A. Presumably, because Article 20 deals with the conviction of an offence, whereas Section 6A is procedural and only mandates the approval of the Union government. 

Public officials do not enjoy immunity from arrest

The Bench held that Dr. Subramanian Swamy v Director, Central Bureau of Investigation which struck down Section 6A, will have a retrospective effect. This means that public officials do not have protection from arrest for offences committed before Subramanian Swamy.