SC's split verdict on Centre's plea to recall black money order

The Supreme Court on Friday gave a split verdict on the Centre's plea seeking to recall its order on black money, with one judge holding that the application was maintainable and the other saying it was not. 

 

Acting on the petitions filed by the former Union Law Minister, Ram Jethmalani, and others, the court had ordered constitution of a special investigation team headed by the retired Supreme Court judge, B.P. Jeevan Reddy. On July 15, the Centre filed the application, which said: “The [July 4] order impinges upon the well settled principle that courts do not interfere with the Economic Policy, which is in the domain of the Executive and that it is not the function of the court to sit in judgment over matters of Economic Policy, which must necessarily be left to expert bodies. Courts do not supplant the views of experts with their own views. The order impinges upon the principle that in matters of utilities, tax and economic policy, legislation and regulation cases, the court exercises judicial self-restraint if not judicial deference to the acts of the Executive, since the Executive has obligations and responsibility both constitutionally and statutorily. The wide-ranging criticism of the state is uncalled for and unjustified.” 

 

The constitution of a special investigation team and the consequential directions could not be implemented, the Centre said. Following the retirement of Justice B. Sudershan Reddy, the matter was heard by a Bench of Justices Altamas Kabir and S.S. Nijjar (who was part of an earlier Bench). Now, Justice Kabir, in his order, held that the application was maintainable. Technicalities could not stand in the way, “particularly if the implementation of the July 4 order would result in injustice.” He said the Supreme Court had the inherent powers to correct the injustice. Hence, he directed that the matter be heard further. Justice Nijjar, however, said: “There is no question of mistaken facts being presented by anyone to the court. The application also fails to indicate any miscarriage of justice or injustice which would be caused to any particular class. The application, though described as an application for modification, is in substance more in the nature of an appeal. At best, it could be in substance an Application for Review. It certainly does not lie within the very narrow limits within which this court would entertain an application for modification.” Justice Nijjar said: “The Union of India has failed to make out a case to enable this court to treat the modification application as an application for review and proceed to hear the same in open court. The present application is wholly misconceived. It is, therefore, dismissed.” 

 

In view of the split verdict, the Bench directed that the matter be placed before Chief Justice of India S.H. Kapadia for being referred to a third judge.

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Central Govt. prayd SC to recall it's Black Money Order

The central government Wednesday told the Supreme Court that its judgment and order on black money needed to be recalled as its implementation would have far reaching consequences on its functioning.

The apex court bench of Justice Altamas Kabir and Justice S.S. Nijjar was told that converting the high-level committee headed by the revenue secretary into a special investigating team (SIT) amounted to dislodging each and every authority set up under the law.

The HLC comprising the heads of different organisations or their representatives was set up by the government to monitor and co-ordinate investigation into parking of ill-gotten money by Indians in tax havens abroad.

Attorney General Goolam Vahanvati wondered how secretary-revenue, or deputy governor of the Reserve Bank of India would transform themselves into the role of investigators. The attorney general wondered how director of Research and Analysis Wing (RAW), India’s external intelligence agency, could be included in the SIT.

The attorney general said that ‘there were serious objections on converting the HLC into SIT. How the members of the HLC would become the investigators’.

The court was told that director, RAW, was a faceless entity and nobody knew who he was.

The government moved an application July 15 seeking the recall of the court’s July 4 order. But Wednesday it moved another application restricting its prayer to recall that portion of the July 4 order by which the apex court set up a SIT to probe money laundering.

The SIT was asked to undertake investigation, initiation of proceedings and prosecution.

The application said that in exercise of the jurisdiction under Article 32 of the constitution, the apex court could not pass orders ‘which have the affect of completely eliminating the role and the constitutional functions of the executive (government).’

Vahanvati wondered if the ‘SIT without the authority of law, where would it get its funds’.

The court was told that there were very serious issues about the scope of the reference of the SIT asking it to do everything and SIT can’t possibly do.

Vahanvati said that the way SIT has been made responsible to the apex court, it would denude the finance minister of his power to ask for any report from his officials.

Senior counsel Anil Divan, who commenced the arguments for petitioner and noted jurist Ram Jethmalani, would continue his arguments Thursday.

The apex court’s July 4 verdict came on the petition by Jethmalani seeking direction to take steps for bringing back ill-gotten money stashed away in tax havens by Indian citizens and the disclosure of the names of such account holders that were available with the government.

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