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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Sanjiv Rajendra Bhatt's letter to Narendra Modi

Sanjiv Rajendra Bhatt
Indian Police Service

Dear Shri. Modi,

I am glad you chose to write an open letter to the 'Six crore Gujaratis'. This has not only afforded me a window to your mind but has also given me an opportunity to write to you through the same medium.

My dear brother, it seems you have completely misconstrued the judgement and order passed by the Honourable Supreme Court of India in Criminal Appeal No. 1765 of 2011 arising out of S.L.P. (CRL.) No. 1088 of 2008 viz. Jakia Nasim Ahesan & Anr. Versus State of Gujarat & Ors. It is very likely that your chosen advisors have once again misled you and have in turn, made you mislead the 'Six crore Gujaratis' who look up to you as their elected leader.

Let me as a younger brother-Gujarati, help you decipher the Judgement and Order that has led to unequivocal gloating and jubilatory celebrations among some sections of the political spectrum. It has been stated in your letter that "One thing is apparent from the Supreme Court's judgment. The unhealthy environment created by the unfounded and false allegations made against me and Government of Gujarat, after 2002 riots, has come to an end". Let me clarify that even by a long shot, the order of the Honourable Supreme Court has nowhere, even remotely, suggested that the allegations contained in the complaint filed by Mrs. Jakia Jafri were unfounded or false. The truth is that the order of the Honourable Supreme Court is in fact, a very major leap in the direction of delivering justice to the hapless victims of the Gujarat pogrom. As you are well aware, Mrs. Jafri had approached the Honorable Gujarat High Court with a prayer for registering her complaint as an FIR. The said petition was disallowed by the Honourable High Court of Gujarat. Mrs. Jafri, therefore, approached the Honourable Supreme Court of India by way of a Special Leave Petition against the order of the High Court. The Honourable Supreme Court directed the SIT to look into her complaint and subsequently also directed the learned Amicus to examine the evidence collected by the SIT. At the end of this long and arduous exercise the Honourable Supreme Court has not only allowed the Appeal of Mrs. Jafri and directed the SIT to virtually treat the complaint of Mrs. Jafrri as an FIR, but has also directed the SIT to file a report under section 173(2) of the Cr.P.C. Let me clarify for your benefit and for the benefit of your Six crore brothers and sisters of Gujarat, that this report under section 173(2) of the Cr.P.C. is colloquially known as Charge-Sheet or Final Report. The honourable Supreme Court of India has also directed the SIT to place all the evidence collected by it, including the reports of the learned Amicus before the magistrate empowered to take cognizance. I am sure you will appreciate that in order to let the law of the land take its due course, this was the best option available to the Honourable Supreme Court as per the scheme of the Code of Criminal Procedure.

What the Honourable Supreme Court of India has given to Mrs. Jafri is much more than what she had originally prayed for. The order over which some of us are gloating in feigned glee, is in fact, a very cleverly worded order that takes the perpetrators and facilitators of the 2002 carnage a few leaps closer to their day of reckoning. The false bravado comes across as a very smart attempt to mislead the gullible people of Gujarat and instil a false sense of confidence in the political rank and file. Please be assured that we will see a very different picture as the actual import of the order starts settling in and takes judicial effect.

As one of the 'Six Crore Gujaratis', I feel deeply pained and cheated when the likes of you, consciously or inadvertently, mislead the people of Gujarat for ulterior motives. The theory propounded and practised to perfection by Paul Joseph Goebbels, one of Adolf Hitler's closest associate and Reich Minister of Propaganda in Nazi Germany, can definitely work with the majority of the populace for some time. But all of us know from historical experience that Goebbelsian Propaganda cannot fool all the people for all the time.

I fully endorse your realization that "Hate is never conquered by hate." Who would know this better than you, who has served this State for the last one decade; and I, who has served in the Indian Police Service for the last 23 years. I had the misfortune of serving with you during those days of 2002 when the dance of hatred was choreographed and perpetrated at different venues in Gujarat. Albeit this is not the appropriate forum for me to discuss and reveal the details of our respective roles, I am sure that both of us will be getting ample opportunities before appropriately empowered fora to disclose our knowledge about the dynamics of hatred in the realpolitik of Gujarat. I hope you and your cronies, within and without the Government, will not hate me more for this.

I cannot agree more with you when you say that "the credibility of those who have been spreading lies and defaming Gujarat has come to its lowest ebb. The people of this country will not trust such elements anymore". But my dear brother, you seem to have got it entirely wrong as to who are the ones spreading lies and defaming Gujarat. To my mind, Gujarat has gained infamy not because of the hapless victims who have tirelessly crusading for the cause of justice and truth, but because of the despicable actions of the people who sowed and cultivated hatred to reap political and electoral benefits. Please give it a thought. Introspection can prove to be very revealing at times.

I am deeply touched by your concern and efforts to "further strengthen Gujarat's environment of peace, unity and harmony." Thanks to you and your kinsmen, Gujarat has been free from any large scale eruption of communal violence since 2002. The reasons for this may not be very obvious to our fellow 'Six Crore Gujaratis". This is my 24th year in the IPS. I was allotted to the Gujarat cadre during a time when the State was passing through the throes of widespread and sporadic communal violence. Having been baptised by fire, I have been since trying to understand and deal with the likes of you, who deal in the divisive politics of hatred. It is my well founded observation that the polity of Gujarat has now crossed the stage where communal violence can accrue electoral benefits to any political party, as the process of communal polarisation is very nearly complete in Gujarat. The experiments in the divisive politics of hatred have been very successful in the Gujarat Laboratory. You and your likes, in the political arena, have been largely successful in creating divides in the hearts and minds of the "Six Crore Gujaratis". The need to resort to any further communal violence in Gujarat is already passe.

In a constitutional democracy like ours, it is incumbent upon the State to act in Good faith at all times and under all circumstances. Over the last nine and a half years many friends have fallen prey to the misleading campaign that the Gujarat Carnage of 2002 was a spontaneous reaction to the condemnable action at Godhra on the fateful morning of 27 February 2002. The Newtonian Law was never abused more. You had resorted to your knowledge and understanding of Newtonian physics in March 2002 and had sought to apply it to polity and governance at the peak of the Gujarat Carnage of 2002. But what you might have deliberately missed then, and what many of us seem to be inadvertently missing now; is the universally accepted principle of governance which mandates that in a constitutional democracy, an avowedly secular State cannot be allowed to be partisan. It was the bounden duty of the State to have anticipated and controlled the possible Newtonian reaction, if any; not orchestrate and facilitate systematic targeting of innocent individuals! Be that as it may, as an expression of solidarity with your stated objective of spreading Sadbhavana in the land of the Mahatma, I resolve to join you in your Sadbhavana Mission. What better way to do this than helping the truth to come out and let the spirit of justice and goodwill prevail. As all of us understand, there can be no Sadbhavna or Goodwill without truth and justice. I hereby reaffirm my resolve to contribute my might towards the restoration of Sadbhavana in the administration and polity of Gujarat.

But let me warn you that genuine heartfelt goodwill is something we cannot demand, buy or extort...we can only strive to deserve it. And it is not going to be an easy task. The land of the Mahatma is slowly but surely coming out of its hypnotic state.

As the most powerful person in Gujarat you may think that you do not need to feel accountable to the perceptions of all sections of the community. But believe me, history has proved time and again, that power without genuine goodwill is a path fraught with dangers...it is also a path of no return.

Samabhava is a condition precedent for Sadbhava. Governance by equity and goodwill should not only be the first article of your faith but should also be the last article of your creed.

The truth is more frequently than not, a little bitter and not very easy to swallow. I hope that you will take this letter in the true spirit in which it is written and you or your agents will not indulge in direct or indirect acts of retribution as is your wont.

In the words of Martin Luther King Jr. - Injustice anywhere is a threat to justice everywhere. The spirit of the hapless victims who have been struggling for justice in Gujarat may occasionally flag but it will not be supressed by any amount of false Goebbelsian propaganda. The struggle for justice is never easy anywhere in the world...it calls for everlasting patience and unfailing perseverance at all times. The spirit of the crusaders for truth and justice in Gujarat is epitomised in this poem by Bhuchung Sonam, an alumnus of M.S. University, Baroda.

I have principle and no power
You have power and no principle
You being you
And I being I
Compromise is out of the question
So let the battle begin...

I have truth and no force
You have force and no truth
You being you
And I being I
Compromise is out of the question
So let the battle begin...

You may club my skull
I will fight
You may crush my bones
I will fight
You may bury me alive
I will fight
With truth running through me
I will fight
With every ounce of my strength
I will fight
With my last dying breath
I will fight...
I will fight till the
Castle that you built with your lies
Comes tumbling down
Till the devil you worshipped with your lies
Kneels down before my angel of truth.

May the kind God give you the requisite strength to be equitable and benevolent towards one and all!
Satyamev Jayate!
With best wishes.
Yours sincerely,
(Sanjiv Bhatt)

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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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