SC judges differ on Centre's plea on SIT in blackmoney case

New Delhi, Sep 23 (PTI) A two-judge bench of the Indian
apex court on Friday gave a split verdict on whether the
Centre's plea seeking recall of its order on setting up a
special investigation team to probe blackmoney cases should be
entertained or not.
While Justice Altamas Kabir ordered the Centre's plea was
maintainable, Justice S S Nijjar said the plea to recall the
July 4 decision was "misconceived" as it fails to indicate
that there was "miscarriage" of justice.
With the two judges giving conflicting orders the, matter
has been referred to the Chief Justice S H Kapadia for
appointing a third judge to decide the vexed issue.
Justice Nijjar said in fact "the present application
would be an abuse of the process of the court as it seeks to
camouflage an application for 'review' of the July 4 decision.
Justice Nijjar, along with Justice B Sudershan Reddy,
(since retired) had delivered the verdict for the probe by the
SIT into the stashing of black money in banks abroad.
Justice Kabir said the Supreme Court, being vested with
inherent power s and being a guardian of the Constitution, can
entertain the government's plea against the order for
constituting the SIT.
"As the very working of the Special Investigation Team
appointed under the order of July 4, is in question, it is
necessary to cut across the technical tapes sought to be
invoked on behalf of the petitioners (Ram Jethmalani and
others).
"And hold that in view of the inherent powers vested in
the Supreme Court, preserved in Order 47 Rule 6 of the Supreme
Court Rules, and having regard to the fact that the Supreme
Court is the guardian of the Constitution, the govenment
application, even in its present form, is maintainable in the
facts and circumstances of the case, which include threats to
the security of the country," Justice Kabir said.
Justice Kabir said "justice transcends all barriers and
neither rules of procedure nor technicalities can stand in its
way, particularly if its implementation would result in
injustice."
However, Justice Nijjar differed and said it would not be
possible to agree with the order passed by Justice Kabir and
held that the Centre's plea was misconceived and not
maintainable as it would touch upon the merits of the case and
reopen the whole matter.
"In my opinion, an application for clarification or
modification touching the merits of the matter is not
maintainable," he said.
"In my opinion, the application seeks to reopen the
whole matter on merits which would not be permissible in an
application for modification. Therefore, in my opinion, the
application deserves to be dismissed at the threshold,"
Justice Nijjar said.
He said in his considered opinion "the present application
would be an abuse of the process of the court as it seeks to
camouflage an application for 'review' as an application for
modification. In my opinion, such a course ought not to be
encouraged".
"In my opinion, ten years down the line, the situation is
even worse than what is depicted by the aforesaid
observations. Now, we are facing an almost daily practice of
having to consider applications for 'modification and
clarification".
By describing an application as one for "clarification"
or "modification", though it is really one of review, a party
cannot be permitted to circumvent or bypass the circulation
procedure and indirectly obtain a hearing in the open court.
What cannot be done directly cannot be permitted to be done
indirectly," the judge said.
Justice Nijjar said "in my opinion, in the present case,
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.
He said "in view of the above, with utmost respect, it
would not be possible to agree with the order passed by
Justice Kabir.
"In my opinion, the applicant--Union of India--has failed
to make out a case to enable this court to treat the
modification application as application for review and proceed
to hear the same in open court. In my opinion, the present
application is wholly misconceived. It is, therefore,
dismissed.
He said the Centre was, however, at liberty to take
recourse to any other legal remedy that may be available to
it.
The apex court had on July 4 recast the high-level
committee, formed by the Centre earlier to track black money
stashed away abroad, by setting up a Special Investigation
Team and making former apex court judges B P Jeevan Reddy and
M B Shah as its chairman and vice-chairman respectively.
The others in the 13-member SIT are Directors of CBI,
Intelligence Bureau, Enforcement Directorate, Chairman of
CBDT, Director General of Revenue Intelligence, Director
General of Narcotics Control, Director of Foreign Intelligence
Office (FIO) and Joint Secretary of Foreign Trade, besides the
Research and Analysis Wing (RAW) Director.
The apex court had recast the Centre's high-level
committee expressing dissatisfaction over the pace of its
functioning and saying the money stashed away reveal a degree
of "softness of the state".
The Centre subsequently moved the apex court, seeking
recall of its order.
But the apex court, before going into the merits of the
Centre's application, had agreed to adjudicate whether it is
maintainable as senior advocate Ram Jethmalani and others
questioned its maintainability.
The Centre had in its recall application contended the
SIT was formed without being prayed for. It has also
questioned the court's remarks that the probe into the issue
of black money stashed abroad was moving at a "laggardly
pace".
During an earlier hearing, the Centre had also told the
bench that the SIT set up by the apex court to probe and
unearth black money needs to be scrapped as the investigating
agency cannot function like a "super power."