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Chief Justice of India Releases Restatements of Indian Law on Legislative Privilege, Contempt of Court and Public Interest Litigation

Posted in CJI SPEECHES, SUPREME COURT by NNLRJ INDIA on October 11, 2011

Chief Justice of India, Shri Justice S.H. Kapadia, here today released a set of Restatement of Indian Law in the presence of legal luminaries. These Restatements of Indian Law relate to 3 subjects: Legislative Privilege, Contempt of Court and Public Interest Litigation. Chairman of the Supreme Court Project Committee on Restatement of Indian Law Shri Justice R.V. Raveendran, Shri G. E. Vahanvati, Attorney General for India and the Director Incharge, Indian Law Institute, Professor S. Sivakumar were also present on the occasion. Chief Justice of India is also the Patron of Supreme Court Project Committee on Restatement of Indian Law.

This Restatement of Indian Law would benefit the members of Bar, Bench, Academia, Civil Servants and general public to map the developments in the field of law and to comprehend its current status as the march of Indian law in the last six decades through judicial pronouncements, legislations and their amendments, rules, regulations and other policy measures needs to be restated with clarity of thought. With this objective the Supreme Court Project Committee on Restatement of Indian Law and the Indian Law Institute had taken up the task of restatement of Indian law in important areas.

The process was initiated with three Pilot Projects on: i) Legislative Privileges, ii) Contempt of Court, and iii) Public Interest Litigation. Three Sub -Committees comprising of Judges of the Supreme Court of India, High Court of Delhi, senior advocates and distinguished academicians were constituted for the purpose. The Pilot Project restated laws on:

(a) Legislative Privilege – This subject was chosen partly on account of the sharp focus it brings to the principle of ‘checks and balances’ vis-a-vis the two important organs of State – the Legislature and the Judiciary.

(b) Contempt of Court – The subject was chosen on account of the fact that the power of contempt is a necessary concomitant of a court of record. It must be exercised judiciously, in a manner that balances the need for preserving and upholding the rule of law as well as the integrity of the judicial system, while at the same time avoiding untoward incursions into that precious right of freedom of speech and expression.

(c) Public Interest Litigation – The Committee chose ‘Public Interest Litigation’ as the third area for restatement on account of the unique contribution of the Supreme Court of India in facilitating access to justice by liberalizing the principle of locus standi. The circuitous journey of PIL and associated discrete judicial thoughts necessitated a clarion, which this restatement aims at.

Justice Bhagwati pleads guilty for ADM Jabalpur Case

Posted in CONSTITUTION, CRIME AGAINST WOMEN, JUDICIAL ACTIVISM, JUDICIARY, SUPREME COURT by NNLRJ INDIA on September 16, 2011

Supreme Court of India

PUBLISHED IN www.myLaw.net

JUSTICE FOR THE COMMON MAN

(Retd.) Justice Bhagwati said that the development of public interest litigation in India could be attributed to his role as a judge. When he was a judge, and even when he was Chief Justice of India, he travelled to the poor regions in Bihar, Orissa, and Uttar Pradesh and saw “stark naked poverty”.

“People came to me in large numbers out of a sense of admiration for me because already I had made a name for myself, and I could see that many of them were in tattered clothes, some of them with sunken bellies, they’d hardly had any food. I realised that my justice was not reaching them at all. My justice was confined to a few fortunate rich people who could come to the court and could afford the luxury of litigation. If you want to go to court, you have to go to a lawyer. You have to brief him and pay him, and then in the Supreme Court it means a lot of costs, which poor men cannot afford, and so they were deprived of justice. So I felt something must be done to bring justice to the doorstep of the common man. So I invented this doctrine of public interest litigation, and I held that where any right of a person is infringed or he has any legitimate grievance and is unable to go to court because of poverty or illiteracy or ignorance, then any public spirited individual or any N.G.O can file an action on his behalf to ask the court to intervene to see that the human rights of poor people are restored.”

Another problem that he faced was that NGOs did not have money to brief a lawyer and file a writ petition. “So I said, it is enough if they write a letter to the court. It is called epistolary jurisdiction – jurisdiction that is invoked by writing letters or epistles to the court. Letters started coming to me from NGOs and poor people. I actually had to set up a department in the Supreme Court to sort them out and whatever appeared to be genuine were placed before me and the court. They would be numbered and then I would issue notice to the other side – usually it was the government or a government officer. On the day fixed, I would take up the case and appoint a lawyer on behalf of the claimant.” Under Article 32 which was very wide in its terms, (Retd.) Justice Bhagwati had vast jurisdiction.

The doctrine of public interest litigation received acceptance overseas as well. When he went to South Africa, Justice Bhagwati was welcomed by Albie Sachs, a famous judge of the Constitutional Court, who publicly called him, “the father of public interest litigation.”

The former Chief Justice of India added that it was now for the lawyers to see public interest litigation prosper. “There are some judges who are against it.” These judges, he said, did not believe that a person without cause of action should be allowed to come to court. “I want the Bar, I want the public, I want the press to ensure that public interest litigation does not die out. He said that it was a mechanism that ensures the balance of power, and it keeps the government under check. He also denied that the judiciary had ever gone overboard with its activism. “In fact, in recent years, the judiciary has been much too reticent. Judiciary must keep only one thing in mind – that they are appointed to do justice, and justice to the common man, not only to those who can afford to go to court, but to the large millions of India. Let them not be obsessed by the British system of justice, which originated and exists under different circumstances. Ours is a poor country, where a large number of people are deprived of their basic human rights.

JUDICIAL CORRUPTION AND APPOINTMENTS

When asked about the process of appointment of judges, (Retd.) Justice P.N. Bhagwati was clear: he had seen the collegium system develop before his eyes, and did not approve of it. “I am against the collegiums system; the former system – where the Chief Justice of India and the Law Minister would consult senior colleagues such as the Attorney General (as I did in my tenure as Chief Justice) in order to see that they had made the right recommendation — was much better. If there is a collegium of five, bargaining will go on amongst them. That is why the quality is going down.” He was vociferous about going back to the old system, which would be most suited for selecting the best person for the judiciary.

The next question raised was one raising a lot of furore lately – relating to judicial accountability. How can judges be held accountable without impinging on the independence of the judiciary? Justice Bhagwati opined that it was a difficult question; the only definite was that the independence of the judges should not be encroached upon at all. “My view is that the Chief Justice should set up a small committee to look into this matter. Whenever the allegations of corruption occur, they must come straight to the Chief Justice alone. He, with his two senior most colleagues should look into the whole question… There must be a mechanism to check corruption, but it must be manned by an independent body, not the legislature or the executive.”

ADM JABALPUR CASE – SUPREME COURTS DARKEST HOUR

“The instances of the Apex court‘s judgment violating the human rights of the citizens may be extremely rare, but it cannot be said that such a situation can never happen.” A Supreme Court bench comprising Justices Aftab Alam and A. K. Ganguly recently lamented thus, referring to the majority judgment in the infamous A.D.M. Jabalpur v. Shivkant Shukla case, popularly known as The Habeas Corpus case. Former Chief Justice of India, Hon’ble Mr. Prafullachandra Natwarlal Bhagwati, who was part of that tainted majority, concurs with Justice Alam and Justice Ganguly, only much later in time and context.

The discussion began with the role of political ideology in the bench; judges come from different backgrounds, for example, Justice Krishna Iyer had a clear background with the communist government. Recently, the Supreme Court has been very critical of the developmental attitude of the Central government. Justice Bhagwati was emphatic on the point: “The question of interpretation is the most important — how the court reads and interprets facts and relates it to the law requires a lot of skill, insight and vision. So your political ideology is bound to colour your judgment, you cannot avoid it. But it should not blind you to the words used by the Legislature.”

Asked to discuss the Supreme Court’s attitude during the Emergency — what some advocates refer to as the “dark days” — Justice Bhagwati held some regrets. “The Supreme Court’s attitude was far from satisfactory; it should have been more bold. It should have tried to uphold the rights of the people, but the Supreme Court failed; there is no doubt about it.”

Speaking about the ADM Jabalpur case specifically, Justice Bhagwati said that if not a disgrace, the case was something for which the Supreme Court should be ashamed. He did not absolve himself: “I was there — I plead guilty. I don’t know why I yielded to my colleagues. In the beginning, I was not in favour of the view that the majority took. But ultimately, I don’t know why, I was persuaded to agree with them. I still feel that the whole judgment was against my conscience. I have always been for freedom, freedom of speech and freedom of expression; I have always believed and always stood by these principles. It was an act of weakness on my part.”

Justice Bhagwati re-iterated that the Supreme Court’s willingness to expand the scope of Part III and Part IV of the Constitution came about because of its guilt for passing the ADM Jabalpur judgment. “I realised that I had made a big error and so I started developing Articles 14, 19, 21, 32, as no one else has done. I practically re-wrote these articles.”

He also recalled that Maneka Gandhi was a wonderful case; though he didn’t remember who argued the facts, but it gave him an opportunity to mould the law and develop it. “She had been deprived of her rights, and I upheld them. After the judgment was over, I met Manekaji at some function and I couldn’t help but remark, “I have made you immortal.” Everyone cites that judgment now. “

BHAGWATI ON HIS CAREER

“I started practice in February, 1948 February, and soon acquired a very large practice. There were some very good lawyers. I used to sit in the library of the Bombay High Court, and next to me a gentleman called Mr. J. C. Bhat, a very able lawyer, used to sit. There was Mr. Seervai, who has written a book on the Constitution, who was also an excellent lawyer.” He recounted it being a wonderful experience.

He was eventually elevated to the Bench. “In 1960, the Chief Justice of the new state of Gujarat, Justice S.T. Desai invited me to be a judge in the Gujarat High Court. I readily accepted, because I had always aspired to be a judge – as a judge you get an opportunity to mould the law and develop it. I was also the Chief Justice of the Gujarat High Court for six years. But my real opportunities came when I came to the Supreme Court in 1973.” Law, as per Justice Bhagwati, is like plasticine in the hands of a great judge, which he can mould as he likes, provided he has the vision and the requisite craftsmanship. “I started moulding and developing the law. Then came Articles 14, 19, 21, and 32, and I practically re-wrote Parts III and IV of the Constitution. I still remember, those days it was a thrilling experience. I would get up at five in the morning and start writing my judgments (I rarely dictated, I always wrote my judgments, because only then the best of you comes out).”

Aju John then asked him about his time in the Supreme Court, and the advocates and his colleagues on the Bench. In terms of advocates, Justice Bhagwati particularly recalled two, the likes of which he doesn’t see anymore: “The Attorney General, Mr. Motilal Setalvad was an outstanding lawyer, as was Mr. C.K. Daphthary.” He was also full of praise for his brother judges, saying that some of them were very good. “Two eminent ones I remember were Justice Krishna Iyer and Justice Dhirubhai Desai (people don’t remember him but he did a lot for industrial law, he was very pro-labour). Justice Eradi from Kerala was also a good judge — these three I distinctly remember.”

SOURCE :

http://mylaw.net/Article/The_darkest_hour_of_Indian_history/

To check motivated PILs, Govt works on law

Posted in PIL by NNLRJ INDIA on June 27, 2011

INDIAN EXPRESS

After he took over as the 38th Chief Justice of India last year, Justice SH Kapadia said huge costs would be imposed on litigants filing frivolous public interest litigation (PIL) petitions. His statement was widely welcomed because instances of unscrupulous elements filing PILs to advance personal or pecuniary interest had witnessed an upward trend in recent years. And last year too, a bench of the apex court raised concern over the misuse of PILs. The same bench had also issued a set of guidelines, which it wanted all courts in the country to observe while entertaining PILs.

In a speech in September 2008, Prime Minister Manmohan Singh also expressed concern over the misuse of the PIL: “Many would argue that like in so many things in public life, in PILs too we may have gone too far. Perhaps a corrective was required and we have had some balance restored in recent times.”

Now, in what could result in the most effective tool against frivolous PILs, the Union Ministry of Law and Justice is giving final touches to a law to regulate the PIL. And helping the Ministry in its endeavour is none other than former Chief Justice of India P N Bhagwati, acknowledged as somebody who along with Justice V R Krishna Iyer pioneered the concept of PIL in the country.

“For last many years, there has been demand that there should be some checks and balances so as to ensure that only genuine PILs, which are filed with the public good in mind, are allowed while those aimed at either harassing some individual or corporate or protecting the interests of an individual or corporate should be checked at the very initial stage. Even the Supreme Court was constrained to issue guidelines to regulate the PILs. We have decided to try and take it forward and bring a legislation laying down guidelines for PILs,” Union Law Minister M Veerappa Moily said.

Sources in the Law Ministry told The Indian Express that Moily has already held meetings with Justice Bhagwati and some legal experts to seek their suggestions. Among other things, the Ministry is proposing to effectively discourage and curb the PILs filed for extraneous considerations. It also wants to make it an offence for anybody to file a PIL for extraneous and ulterior motives and empower the courts to discourage such PILs by imposing exemplary costs.

In its judgment, where it talked of the need to regulate the PIL, the SC bench had said that instead of “every individual judge devising his own procedure for dealing with the PIL, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives”.

Aware that there could be some who might question the need for such a law, Moily said he was ready to bring around all such persons by explaining to them the need to have such a law. “We are not making it illegal to file a PIL. But we only want to check frivolous and motivated PILs,” he said.

Gamble in litigation

Posted in CONSTITUTION, FUNDAMENTAL RIGHTS, PIL by NNLRJ INDIA on May 18, 2011

M J ANTONY IN THE BUSINESS STANDARD

The SC finds that petitioners do not always come with clean hands

Most sane people prefer to stay away from the painfully slow and overcrowded courts. It is a misfortune to be dragged to a court, especially when one is an ordinary law-abiding citizen. The ancient Chinese swore at a foe, “let you be hauled to a court even if you’re innocent!”

However, there is a deviant species who attempt to gamble with law suits. They use the system to settle political scores or subdue business rivals. The Supreme Court spotted this class two years ago in the case Dalip Singh vs State of Uttar Pradesh and remarked: “In the last 40 years, a new breed of litigants has cropped up. The quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter in falsehood, misrepresentation and suppression of facts. Those who attempt to pollute the stream of justice or touch the pure fountain of justice with tainted hands are not entitled to any relief.”

The Supreme Court decided a few cases of this variety last week and even imprisoned one petitioner who lacked bona fides. One petition was moved by vocal politician Amar Singh. It was his constant whine that his political opponents in power are tapping his phones and his private conversations with friends in high places and celebrities were aired in the media. Therefore, he moved the Supreme Court invoking his fundamental right to privacy. But the court rejected his petition, calling it “an attempt to mislead the court on the basis of frivolous allegations and by suppression of material facts.”

Chastising those who move courts with such dubious motives, the judgment said: “This court wants to make it clear that an action at law is not a game of chess. A litigant who approaches the court must come with clean hands. He cannot prevaricate and take inconsistent positions.” Since the Amar Singh petition was vague, not conforming to the rules of procedure and riddled with inconsistencies, the court did not go into his main grievance — infringement of privacy.

The only positive outcome of the case was the court’s request to the government to “frame certain statutory guidelines to prevent interception of telephone conversation on unauthorised requests.” In this case, Reliance Infocom acted on a forged request from the police.

In another judgment, Kalyaneshwari vs Union of India, the court deprecated misuse of public interest litigation to wage business battles. A writ petition was filed in the Gujarat High Court seeking the closure of asbestos units, alleging that the material was harmful to humans. The high court dismissed it, stating that the petition was filed at the behest of rival industrial groups that wanted to push their products as substitute for asbestos. Undaunted, a similar petition was then moved in the Supreme Court. The plea was not only dismissed, but the person who mooted it was asked to pay cost of Rs 1 lakh and sit in the court for a whole day.

The judgment said: “The petition lacks bona fide and in fact was instituted at the behest of a rival industrial group, which was interested in banning of the activity of mining and manufacturing of asbestos. A definite attempt was made by it to secure a ban on these activities with the ultimate intention of increasing the demand of cast and ductile iron products as they are some of the suitable substitute for asbestos. Thus it was litigation initiated with ulterior motive of causing industrial imbalance and financial loss to the industry of asbestos through the process of court.”

The court declared that it was its duty in such circumstances to punish the petitioners exercising its power under the Contempt of Courts Act. The court must “ensure that such unscrupulous and undesirable public interest litigation be not instituted in courts of law so as to waste the valuable time of the courts as well as preserve the faith of the public in the justice delivery system.”

This variety of cases is not entirely new. They come with apparently laudable motives, but if the veil is removed they expose the real intentions. In the case, Subhash Kumar vs State of Bihar (1991), the complaint was that effluents released from the Tata Iron and Steel Company’s washeries were not only contaminating the Bokaro river but also ruining agricultural land. Later the court found that the petitioner was an influential businessman who was buying the slurry from the company for several years. His private interest was hurt when the company refused to provide him more slurry. Hence his public interest litigation. Such instances have occurred despite the stringent reaction of the courts at all levels and guidelines set by the apex court in some judgments.

http://www.business-standard.com/india/news/m-j-antony-gamble-in-litigation/435870/

A case of judicial inaction

Posted in CONTEMPT OF COURT, JUDICIAL REFORMS, JUDICIARY, SUPREME COURT by NNLRJ INDIA on December 20, 2010
The supreme court of india. Taken about 170 m ...

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BY RAJEEV DHAWAN , IN THE MAIL TODAY

IT ALL started on May 19, 2008, with the murder of V. Jayaraman of Pondicherry, who exposed a University marksheet scam. A Central Bureau of Investigation inquiry indicted a student named Sridharan and his father, C. Krishnamurthy who applied for bail in May 2009 which was before Justice R. Reghupathi. Then, impropriety broke loose. Allegedly, lawyer R. K. Chandramohan met Justice Reghupathi in his chambers in the Madras High Court on June 12, 2009, inviting him to speak to ‘ minister Raja’ over the telephone to let the accused father and son off.

Justice Reghupathi refused to oblige. By June 29, the matter became newsworthy when Chandramohan was reported to have upset court proceedings. Reported in a national daily the next day, the imbroglio stood exposed. Justice Reghupathi himself announced in open court on him being approached by a lawyer on behalf of a Union minister.

Raja

It was certainly the duty of Justice Reghupathi to report the matter to Chief Justice H. L. Gokhale of the Madras High Court. This he did on July 2, 2009. Sadly, Justice Gokhale who could have constituted a bench and issued a notice for contempt to the advocate through whom the minister’s name would have come out did not do so. Instead, Justice Gokhale wrote a letter on July 5, 2009, to the then Chief Justice of India K. G. Balakrishnan, which was dispatched on July 7 with his own covering letter which was duly acknowledged by CJI Balakrishnan. As it happens, the CJI did nothing, taking the view that there was nothing to act on! Subsequently, some action was taken to suspend lawyer Chandramohan.

Difficult though it is to believe, the then chief justices of Madras and India failed to take appropriate action. This total failure on the part of the judiciary does not do it credit. These acts of judicial forbearance would have died a natural death but for the fact that Minister Raja was in the news over the 2G spectrum scam. Media memory is stronger when triggered by whip- lash revivals. The matter resurfaced in December 2010 after 18 months of inaction.

The connecting point was the result of a Public Interest Litigation ( PIL) before the Madras High Court which ruled that action be taken to suspend lawyer Chandramohan. Wounds healed by judicial nonfeasance amounting to misfeasance were reopened. Retired Justice Reghupathi cannot be blamed for inconsistency. In retirement, faced with the new situation, he confirmed not only what he had said in open court in June 2009, but that he had sent everything to CJ Gokhale who had transmitted it to CJI Balakrishnan.

What happened next was an ex- post facto judicial ‘ blame- game’ between the two Chief Justices. On December 14, 2010, Chief Justice Gokhale, now a sitting judge of the Supreme Court, decided to contradict former CJI Balakrishnan who, according to Gokhale had “ given erroneous impression of my ( Gokhale’s) role in the matter.” A press release by a sitting SC Judge against a former CJI is unprecedented.

But its contents were illuminating. He said the former CJI knew from paragraph two of Reghupathi’s letter that Raja was the erring Minister. CJI Balakrishnan also wrote back to apprise CJ Gokhale of parliamentary concern addressed to the Prime Minister. Gokhale did nothing except to affirm that he had already sent Reghupathi’s letter to the CJI. In a sense, CJ Gokhale can be read to confirm that he failed to take appropriate action.

In December 2010, a controversy bordering on farce erupted between Gokhale and Balakrishnan, with Gokhale insisting that the former CJI knew that Raja was the minister in question, Balakrishnan denying this and Reghupathi thanking Gokhale. But whether Balakrishnan knew whether the Minister involved was Raja is mostly irrelevant.

Issues

Four issues stand out. The first is that the controversy was in the public domain. Everyone knew about it. The Prime Minister, parliamentarians, the two Chief Justices, the Madras Bar and, through the media, the general public. The two Chief Justices could have acted but failed to do so. CJ Gokhale was directly armed with the power to issue notices for contempt. CJI Balakrishnan could have used the Nadiad ruling to issue notices or prompted CJ Gokhale to do so. The controversy was allowed to lie fallow by the combined inaction of both Chief Justices. Second, Justice Reghupathi had declared what happened in Court and informed CJ Gokhale. He could not have constituted a contempt bench. That was for CJ Gokhale to do.

Third, CJ Gokhale should have issued notices for contempt. He, and — in some sense — only he had the power and jurisdiction to do so. He need not have passed the buck on to CJI Balakrishnan. But that was easier for him because, presumably, he did not want to ruffle the feathers of the Madras Bar of which lawyer Chandramohan was the President. Any controversy may have blighted his chance for a Supreme Court appointment. Clearly Gokhale’s abnegation does not seem worthy of a Chief Justice even if hitherto, he had a relatively colourless judicial career. Fourth comes CJI Balakrishnan who though from Kerala, was also a former Chief Justice of the Madras High Court with connections in the city. The issue was important enough for him to act.

His forbearance is astonishing. For him now to say that he did not know that Raja was involved is ducking the hook. In terms of his overall responsibility, this was irrelevant. At best, all this would show is that he was not shielding Raja. If so, who was he shielding? And, if nobody, why did he not act? There are things said about CJI Balakrishnan that may not bear repetition. But, his term as CJI is not regarded with enthusiastic commendation. He did not have to wait for Gokhale to act. Nor, indeed, did Gokhale have to wait for Justice Balakrishnan to act.

Judges

It took a PIL to ignite the controversy to effect the suspension of the gobetween lawyer. By this time, the justices have moved on. Reghupathi has retired. Gokhale has become a judge in the Supreme Court. But he thought it fit to make a ‘ holier- than- thou’ press release against Balakrishnan who, in turn had retired as CJI to hold the post- retirement job of heading the NHRC. Everyone is saved precipitous embarrassment though there are calls for Balakrishnan’s resignation from the NHRC. But there is no point denying that the reputations of former Chief Justices Gokhale and Balakrishnan are affected.

Neither discharged their duty. In the Bhattacharya case ( 1995), Justice K. Ramaswami declared that judicial misdeeds could only be cured by complaints to High Court CJs and the CJI. These incidents have made that plea hollow. The judicial record in protecting judicial probity has been embarrassing. As far as the facts are concerned, the situation is aptly described by the poet Tom Gunn: “ Youknow- I- know- you know- I know- you- knew.” The judiciary cannot be trusted to cleanse itself without an objective process that does not depend on the personality of individual Chief Justices. A proper process of appointments and complaints machinery is necessary. In this controversy, the law minister has sided with CJI Balakrishnan. We hope his Bill to create a new machinery to discipline the judiciary and make it accountable for judicial corruption is not half- hearted!

The writer is a Supreme Court lawyer

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Can’t order probe into corruption charges: CJI Bench

Posted in CONSTITUTION, CORRUPTION, PIL, SUPREME COURT by NNLRJ INDIA on March 26, 2010

Pioneer News Service | New Delhi

In a judgement that will come as major relief to corrupt politicians and babus, the Supreme Court has held that courts cannot order probe into corruption allegations but simply monitor investigation in the ongoing cases. The judgement passed by a Bench headed by Chief Justice KG Balakrishnan came on a PIL filed against Sikkim CM Pawan Chamling, who was accused of amassing disproportionate assets. In the past, the Supreme Court had ordered several probes in corruption cases involving public servants. The latest being the decision to order a CBI probe against Samajwadi Party chief Mulayam Singh and his family members on a PIL filed by one Vishwanath Chaturvedi.

Dismissing the PIL filed by a local politician Kunga Nima Lepcha, the Bench said, “This court cannot sit in judgement over whether investigations should be launched against politicians for alleged acts of corruption.”

Giving reasons for not yielding to the petitioner’s demand to order a probe into the evidence collected against Chamling, the Bench, also comprising Justices P Sathasivam and JM Panchal, said, “The Supreme Court of India functions as a Constitutional Court as well as the highest appellate court in the country. If the Supreme Court gives direction for prosecution, it would cause serious prejudice to the accused, as the direction of this court may have far-reaching persuasive effect on the court which may ultimately try the accused.”

The judgement threatens to have far-reaching consequences. On one hand, where it whittles down the power of courts under public interest litigation (PIL); on the other hand, it insulates corrupt babus and politicians from the purview of PILs.

The judges noted, “The onus of launching an investigation into such matters is clearly on the investigating agencies such as the State Police, Central Bureau of Investigation (CBI) or the Central Vigilance Commission (CVC) among others. It is not proper for this court to give directions for initiating such an investigation under its writ jurisdiction.”

“While we can appreciate the general claim that the efforts to uncover the alleged acts of corruption may be obstructed by entrenched interests,” the Bench added, “It is only on the exhaustion of ordinary remedies that perhaps a proceeding can be brought before a writ court.”

In the past, it was interference by the Supreme Court that led to cases being filed against corrupt politicians.

Making a distinction in matters where the court could interfere under writ jurisdiction, Chief Justice Balakrishnana, writing the decision for the Bench, said, “In the past, writ jurisdiction has been used to monitor the progress of ongoing investigations or to transfer ongoing investigations from one investigating agency to another. Such directions have been given when a specific violation of Fundamental Rights is shown, which could be the consequence of apathy or partiality on part of investigating agencies among other reasons.”

In all these circumstances, the court held, “The writ court can only play a corrective role to ensure that the integrity of the investigation is not compromised.” But on the aspect of ordering an investigation, it maintained, “That function clearly lies in the domain of the executive and it is up to the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation.”

http://www.dailypioneer.com/244688/Can%E2%80%99t-order-probe-into-corruption-charges-CJI-Bench.html

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