TMI Blog2013 (12) TMI 1650X X X X Extracts X X X X X X X X Extracts X X X X ..... which are directed by the Court to be registered and the inquiry/investigation thereon is actually being monitored by this Court. The monitoring of investigations/inquiries by the Court is intended to ensure that proper progress takes place without directing or channeling the mode or manner of investigation. The whole idea is to retain public confidence in the impartial inquiry/investigation into the alleged crime; that inquiry/investigation into every accusation is made on a reasonable basis irrespective of the position and status of that person and the inquiry/investigation is taken to the logical conclusion in accordance with law. - WRIT PETITION (CRIMINAL) NO. 120 OF 2012, WRIT PETITION (CIVIL) NO.463 OF 2012, 429 OF 2012, 498 OF 2012, 515 OF 2012, 283 OF 2013 - - - Dated:- 17-12-2013 - Hon'ble Justice R.M. Lodha, Hon'ble Justice, Kurian Joseph And Hon'ble Justice Madan B. Lokur For the Petitioner(s) : Manohar Lal Sharma For the Respondent(s) : The Principal Secretary, Union of India Ministry of Coal Secretary, Union of India Central Bureau of Investigation Director, Manmohan Singh, Sriprakas Jaiswal, Union of India Indian National Congress President ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments as proposed in the DSPE Act were likely to take some time and, accordingly, put to the learned Attorney General two queries, first, as to why clarification should not be made that the approval from the Central Government under Section 6-A of the DSPE Act for investigation of the offences alleged to have been committed under the PC Act is not necessary as it is the stand of the Government that the power of supervision for investigation has already been shifted from the Government to the Central Vigilance Commission (CVC) and, second, why the approval of the Government was necessary in respect of Courtmonitored or Court-directed investigations. 5. In Vineet Narain [Vineet Narain and Others v. Union of India and Anr; (1998) 1 SCC 226] , this Court was approached under Article 32 of the Constitution allegedly as there was inertia by the CBI in the investigations into Jain Diaries case where the accusations made were against high dignitaries. The background that necessitated the monitoring of the investigation by this Court is indicated in the first paragraph (These writ petitions under Article 32 of the Constitution of India brought in public interest, to begin with, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above in the Central Government, Executive Directors and above of the SEBI and Chairman Managing Director and Executive Directors and such of the bank officers who are one level below the Board of Nationalised Banks), there should be prior sanction of the Secretary of the Ministry/Department concerned before SPE takes up any enquiry (PE or RC), including ordering search in respect of them. Without such sanction, no enquiry shall be initiated by the SPE. (ii) All cases referred to the Administrative Ministries/Departments by CBI for obtaining necessary prior sanction as aforesaid, except those pertaining to any officer of the rank of Secretary or Principal Secretary, should be disposed of by them preferably within a period of two months of the receipt of such a reference. In respect of the officers of the rank of Secretary or Principal Secretary to Government, such references should be made by the Director, CBI to the Cabinet Secretary for consideration of a Committee consisting of the Cabinet Secretary as its Chairman and the Law Secretary and the Secretary (Personnel) as its members. The Committee should dispose of all such references preferably within two months from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and its functions were enlarged to cover all departments of the Central Government. The jurisdiction of the SPE extended to all the Union Territories. Its jurisdiction could also be extended to the States with their consent. The CBI was established on 01.04.1963 vide Government Resolution issued by the Ministry of Home Affairs, Government of India. 9. Section 3 of that Act empowers the Central Government to specify by notification in the official gazette the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment (DSPE). 10. Section 4 relates to superintendence and administration of SPE. 11. Section 5 deals with extension of powers and jurisdiction of SPE to other areas. The Central Government has been empowered to extend to any area (including railway areas), in a State not being a Union Territory the powers and jurisdiction of members of the DSPE for the investigation of any offences or classes of offences specified in a notification under Section 3. 12. Section 6 provides that Section 5 shall not be deemed to enable any member of the DSPE to exercise powers and jurisdiction in any area in a State, not being a Union Ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Vigilance Commission to inquire or cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act, 1988 by certain categories of public servants of the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government and for matters connected therewith or incidental thereto.) 17. Section 8 of the CVC Act deals with the functions and powers of the CVC. To the extent, it is relevant, Section 8 reads as under: 8. Functions and powers of Central Vigilance Commission. (1) The functions and powers of the Commission shall be to-- (a) exercise superintendence over the functioning of the Delhi Special Police Establishment in so far as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 or an offence with which a public servant specified in sub-section (2) may, under the Code of Criminal Procedure, 1973, be charged at the same trial; (b) give directions to the Delhi Special Police Establishment for the purpose of discharging the responsibil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (1991) 3 SCC 655] have been distinguished in Vineet Narain [Vineet Narain and Others v. Union of India and Anr; (1998) 1 SCC 226] but he submits that the observations in Vineet Narain [Vineet Narain and Others v. Union of India and Anr; (1998) 1 SCC 226] have been doubted in the referral order in Subramanian Swamy (Dr.) Subramanian Swamy (Dr.) v. Director, CBI and Others; [(2005) 2 SCC 317] . 21. Learned Attorney General argues that it will not be appropriate to issue clarification in the terms proposed in the order dated 10.07.2013 in respect of first query for the reasons: (i) requirement of prior sanction does not flow from the power of superintendence; (ii) there is a presumption of constitutionality in favour of a statutory provision, which cannot be nullified/amended/modified by an interim order; (iii) a statutory provision cannot be struck down without a specific challenge being levelled thereto; and (iv) the Court has the power of judicial review to set right improper exercise of power conferred under Section 6-A. Elaborating the above, learned Attorney General submits that while the power of superintendence operates during the stage of investigation, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns is fully achieved when a case is monitored by the constitutional court. The constitutional courts are repository of the faith of the people as well as protector of the rights of the individual and, therefore, no prior approval of the Central Government under Section 6A in the cases in which investigation is monitored by the constitutional court is necessary. 26. Learned senior counsel for the CBI submits that this Court has consistently held with reference to Section 6 of the DSPE Act and Section 19 of the PC Act that requirement of sanction for prosecution was not mandatory when the same is done pursuant to the direction of the Court or where cases are monitored by the Court. On the same analogy, he submits that it can be safely concluded that the approval under Section 6A of the DSPE Act is not necessary in the cases where investigation is monitored by the constitutional court. He argues that requirement of approval under Section 6A, if held to be necessary even in Courtmonitored cases, it would amount to restricting power of monitoring by a constitutional court up to officers below the ranks of Joint Secretary only which would mean that the constitutional court has no powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the police is found to be not bona fide or the investigation is tainted with animosity, the Court may intervene to protect the personal and/or property rights of the citizens. 30. Lord Denning (The Due Process of law; First Indian Reprint 1993, pg. 102) has described the role of the police thus: In safeguarding our freedoms, the police play vital role. Society for its defence needs a well-led, well-trained and well-disciplined force or police whom it can trust, and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice. The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man s house without authority. They must not use more force than the occasion warrants . 31. One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to the book. 32. Section 2(h) of the Code of Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. When information available is adequate to indicate commission of cognizable offence or its discreet verification leads to similar conclusion, a regular case must be registered instead of a PE. 35. Paragraph 9.10 of the Manual states that PE relating to allegations of bribery and corruption should be limited to the scrutiny of records and interrogation of bare minimum persons which may be necessary to judge whether there is any substance in the allegations which are being enquired into and whether the case is worth pursuing further or not. 36. Paragraph 10.1 of the Manual deals with registration and first information report. To the extent it is relevant, it reads as under: 10.1 On receipt of a complaint or after verification of an information or on completion of a Preliminary Enquiry taken up by CBI if it is revealed that prima facie a cognizable offence has been committed and the matter is fit for investigation to be undertaken by Central Bureau of Investigation, a First Information Report should be recorded under Section 154 Criminal Procedure Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect the treasury from being defrauded, let all money be issued openly in front of the whole city, and let copies of the accounts be deposited in various wards. What Aristotle said centuries back may not be practicable today but for successful working of the democracy it is essential that public revenues are not defrauded and public servants do not indulge in bribery and corruption and if they do, the allegations of corruption are inquired into fairly, properly and promptly and those who are guilty are brought to book. 42. In this group of matters, it is alleged that coal blocks for the subject period have been allocated for extraneous considerations by unknown public servants in connivance with businessmen, industrialists and middlemen. The allocation of coal blocks is alleged to suffer from favouritism, nepotism and pick and choose. The Comptroller and Auditor General (CAG) in its Performance Audit on allocation of coal blocks and augmentation of coal production has estimated loss to the public exchequer to the tune of about Rs.1.86 lac crore as on 31.03.2011 for Open-cast mines/Open-cast reserves of Mixed mines while pointing out inadequacies and shortcoming in the allocation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been made out. If a superior court supervises the investigation and thus facilitates the formulation of such opinion in the form of a report under Section 173(2) of the Code, it will be difficult if not impossible for the trial court to not be influenced or bound by such opinion. Then trial becomes a farce. Therefore, supervision of investigation by any court is a contradiction in terms. The Code does not envisage such a procedure, and it cannot either. In the rare and compelling circumstances referred to above, the superior courts may monitor an investigation to ensure that the investigating agency conducts the investigation in a free, fair and time-bound manner without any external interference. 46. The Court is of the view that a fair, proper and full investigation by the CBI into every accusation by the CBI in respect of allocation of coal blocks shall help in retaining public confidence in the conduct of inquiry/investigation. Moreover, the Court-monitoring in a matter of huge magnitude such as this shall help in moving the machinery of inquiry/investigation at appropriate pace and its conclusion with utmost expedition without fear or favour. 47. As regards the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, Tis Hazari Court, Delhi v. State of Gujarat and others; [(1991) 4 SCC 406] that power under Article 142(1) to do complete justice is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. Once this Court is in seisin of a cause or matter before it, it has power to issue any order or direction to do complete justice in the matter. This legal position finds support from other decisions of this Court in Poosu State of U.P. v. Poosu and Another; [(1976) 3 SCC 1] , Ganga Bishan Ganga Bishan v. Jai Narain; [(1986) 1 SCC 75] and Navnit R. Kamani Navnit R. Kamani v. R.R. Kamani; [(1988) 4 SCC 387] . 50. The majority view of the Constitution Bench in Union Carbide Union Carbide Corporation and Others vs. Union of India and Others; [(1991) 4 SCC 584] , with regard to power of this Court under Article 142 of the Constitution holds the same view as expressed by this Court in Delhi Judicial Service Association Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and others; [(1991) 4 SCC 406] . The majority view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of complete justice of a cause or matter, the apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not complete justice of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise.) of the Report has reiterated that the prohibitions or limitations or provisions contained in ordinary laws, cannot ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entinel on the qui vive , has been invested with the powers which are elastic and flexible and in certain areas the rigidity in exercise of such powers is considered inappropriate. 54. In the event of any senior officer (Joint Secretary or above) or the Central Government in an ongoing inquiry/investigation by the CBI being monitored by the Court has reason to believe that such officer may be unnecessarily harassed by the CBI, then the Central Government or the senior officer (Joint Secretary or above) can always apply to the Court which is monitoring the inquiry/investigation for protection of his rights. Such legal course being available to the category of officers covered by Section 6A, we hardly find any merit in the submission of the learned Attorney General that requirement of approval under Section 6A cannot be waived even in Court-monitored investigations and inquiries. 55. The argument of the learned Attorney General that Section 6A is in the nature of procedure established by law for the purposes of Article 21 and where consequences follow in criminal law for an accused, the Court is not at liberty to negate the same even in exercise of powers under Article 32 or Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State concerned, there is no reason as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the Court fails to grant relief, it would be failing in its constitutional duty. ( vii ) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the approval of the Central Government is not necessary under Section 6A of the DSPE Act in a matter where the inquiry/investigation into the crime under the PC Act is being monitored by the Court. It is the duty of this Court that anti-corruption laws are interpreted and worked out in such a fashion that helps in minimizing abuse of public office for private gain. 60. Learned Attorney General heavily relied upon the observations made in paragraph 28 by the Constitution Bench of this Court in K. Veeraswami [K. Veeraswami v. Union of India; (1991) 3 SCC 655] . He, particularly, referred to the following observations with emphasis on the highlighted portion: 28. . . . . . . Section 6 is primarily concerned to see that prosecution for the specified offences shall not commence without the sanction of a competent authority. That does not mean that the Act was intended to condone the offence of bribery and corruption by public servant. Nor it was meant to afford protection to public servant from criminal prosecution for such offences. It is only to protect the honest public servants from frivolous and vexatious prosecution. The competent authority has to examine independently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anction from a higher officer or Head of the Department is permissible and necessary to save the officer concerned from harassment caused by a malicious or vexatious prosecution. We are unable to accept this submission. 35 . The position of Judges of High Courts and the Supreme Court, who are constitutional functionaries, is distinct, and the independence of judiciary, keeping it free from any extraneous influence, including that from executive, is the rationale of the decision in K. Veeraswami . In strict terms the Prevention of Corruption Act, 1946 could not be applied to the superior Judges and, therefore, while bringing those Judges within the purview of the Act yet maintaining the independence of judiciary, this guideline was issued as a direction by the Court. The feature of independence of judiciary has no application to the officers covered by the Single Directive. The need for independence of judiciary from the executive influence does not arise in the case of officers belonging to the executive. We have no doubt that the decision in K. Veeraswami has no application to the wide proposition advanced by the learned Attorney General to support the Single Directive. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J. (R.M. Lodha) J. (Kurian Joseph) ORDER MADAN B. LOKUR, J. 1. The question for consideration relates to the applicability of Section 6A of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as the Act) to an inquiry or investigation monitored by a constitutional court. In my opinion, this section has no application to a constitutional court monitored inquiry or investigation. While I agree with the same conclusion arrived at by Brother Justice Lodha, my reasons are quite different. 2. Section 6A of the Act reads as under: Approval of Central Government to conduct inquiry or investigation . (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to 1. the employees of the Central Government of the level of Joint Secretary and above; and 2. such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the CBI undertakes an investigation against an officer of the rank of a Joint Secretary or above. The Single Directive made it clear that Without such sanction, no inquiry shall be initiated by the SPE (Special Police Establishment). The relevant extract of the Single Directive has been quoted by Brother Justice Lodha and it is not necessary to repeat it. 6. The Single Directive was the subject of challenge in Vineet Narain v. Union of India, (1998) 1 SCC 226 . This Court struck it down, inter alia , on three grounds that are best expressed in the words of this Court: (i) The learned Attorney General contended that this decision K. Veeraswami v. Union of India, (1991) 3 SCC 655 is an authority for the proposition that in case of high officials, the requirement of prior permission/sanction from a higher officer or Head of the Department is permissible and necessary to save the officer concerned from harassment caused by a malicious or vexatious prosecution. We are unable to accept this submission. .The feature of independence of judiciary has no application to the officers covered by the Single Directive. The need for independence of judiciary from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this to say: 41. The Committee note that many witnesses who appeared before the Committee had expressed the need to protect the bona fide actions at the decision making level. At present there is no provision in the Bill for seeking prior approval of the Commission or the head of the Department etc. for registering a case against a person of the decision making level. As such, no protection is available to the persons at the decision making level. In this regard, the Committee note that earlier, the prior approval of the Government was required in the form of a Single Directive which was set aside by the Supreme Court. The Committee feel that such a protection should be restored in the same format which was there earlier and desire that the power of giving prior approval for taking action against a senior officer of the decision making level should be vested with the Central Government by making appropriate provision in the Act. The Committee, therefore, recommend that Clause 27 of the Bill be accordingly amended so as to insert a new section 6A to the DSPE Act, 1946, to this effect. 10. Furthermore, in the debate in Parliament relating to the Bill, the Union Law Minister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to be impartially investigated by the CBI. Although the CBI had begun investigations on the basis of directions issued by the Central Vigilance Commission, it was perceived that the CBI was going slow or not actively investigating the allegations perhaps with a view to protect some powerful vested interest. It is under these circumstances that public interest litigation was initiated in this Court. Given the importance of the case and the issues involved, this Court decided, in the larger public interest, to monitor the investigations being conducted by the CBI. 14. While the matter of allocations is being considered on merits, one of the issues that has arisen is with regard to the interpretation of Section 6A of the Act since it was apprehended by the petitioners that despite this Court monitoring the investigations, the Central Government could stall them by declining to give previous approval to the CBI to carry out an inquiry or conduct an investigation into the allegations since officers of the level of Joint Secretary and above would be involved. 15. The issue got precipitated when it was brought to our notice through an application filed by the CBI that previou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agency under said provision were not being accorded due priority and the examination of such proposals at times lacked objectivity. The matter was under consideration of the Group of Ministers constituted to consider measures that can be taken by the Government to tackle Corruption. The Government has accepted the following recommendation of the Group of Ministers, as reflected in para 25 of the First Report of the Group of Ministers:- 1. The competent authority shall decide the matter within three months of receipt of request accompanied with relevant documents. 2. The competent authority will give a Speaking Order, giving reasons for its decision. (c) In the event a decision is taken to refuse permission, the reasons thereof shall be put up to the next higher authority for information within one week of taking the decision. (d) Since section 6A specifically covers officers of the Central Government, above the rank of Joint Secretary, the competent authority in these cases will be the Minister in charge in the Government of India. In such cases, intimation of refusal to grant permission along with reasons thereof, will have to be put up to the Prime Minister. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asized by the learned Attorney-General. 21. The learned Attorney-General made a concession to the effect that in the event of the CBI conducting an enquiry, as opposed to an investigation into the conduct of a senior government officer, no previous approval of the Central Government is required since an enquiry does not have the same adverse connotation that an investigation has. Discussion 22. Some of the safeguards suggested by the learned Attorney-General find a mention in Vineet Narain . However, these were not specifically accepted or rejected while considering the validity of the Single Directive only because this Court held that the Single Directive had been issued without any legislative sanction and it amounted to interdicting the investigations. 23. No doubt the rigour of Section 6A of the Act has already been diluted by the issuance of the Office Memorandum dated 26th September 2011. But the question is this: Is there a need for a further dilution of Section 6A of the Act in respect of a constitutional court monitored investigation? Is it necessary for the CBI to take the previous approval of the Central Government for investigating a senior official eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est and a fair hearing given by a constitutional court certainly cannot be said to be detrimental to his or her interest. On the contrary, the protection given by a constitutional court will be more real. 27. On the preventive side, one must not forget that senior government officials wield at least some influence. This Court has also cautioned in Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407 that our criminal jurisprudence contemplates that an investigation should be fair, in accordance with law and should not be tainted. But, at the same time, the court has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation so as to throttle a fair investigation resulting in the offenders escaping the punitive course of law. Effectively, therefore, Section 6A of the Act calls for an equal treatment before law for all, and that is precisely what a constitutional court monitored investigation seeks to achieve preventing misuse of the law. 28. The Office Memorandum relied on by the learned Attorney-General can hardly be termed as efficacious in any manner. Firstly, it cannot be used to interpret a provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompilation of 126 cases in which the sanction for prosecution is awaited for periods ranging for more than one year to a few months. 32. Referring to this situation, this Court observed in paragraph 70 of the Report as follows:- Therefore, in more than one-third cases of request for prosecution in corruption cases against public servants, sanctions have not been accorded. The aforesaid scenario raises very important constitutional issues as well as some questions relating to interpretation of such sanctioning provision and also the role that an independent judiciary has to play in maintaining the Rule of Law and common man s faith in the justice-delivering system. Both the Rule of Law and equality before law are cardinal questions in our constitutional laws as also in international law and in this context the role of the judiciary is very vital. 33. It is true that in Swamy this Court was referring to delays in sanctions for prosecution but it is not unlikely that a similar scenario may play itself out in respect of the grant of previous approval for investigation notwithstanding time lines being laid down as mentioned in the Office Memorandum. This is because if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 317 no previous approval for investigation was required by the CBI from the date of decision in Vineet Narain (18th December 1997) till the insertion of Section 6-A of the Act with effect from 12th September 2003 except for a brief period of two months from 25th August 1998 to 27th October 1998. Absolutely no material was placed before us to suggest that during the period when the Single Directive was not in operation, nor was Section 6A of the Act on the statute book, the CBI investigated frivolous and vexatious complaints against senior government officers or harassed any of them in any way. The fear that decision makers in the Government will be wary of taking a bona fide decision that may inadvertently stir up an avoidable controversy does not appear to be based on any material. 37. Finally, a constitutional court monitored investigation is nothing but the adoption of a procedure of a continuing mandamus which traces its origin, like public interest litigation, to Article 32 of the Constitution and is our contribution to jurisprudence. This has been sufficiently discussed in Vineet Narain and there is no present necessity of any further discussions on this. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance. Thereafter, explaining the importance of clause (2) of Article 32 and the expression in the nature of used therein, the Constitution Bench held, in paragraph 53 of the Report that the power conferred is in the widest terms and is not confined to issuing the high prerogative writs specified in the said clause but includes within its ambit the power to issue any directions or orders or writs which may be appropriate for enforcement of the fundamental rights. Therefore, even when the conditions for issue of any of these writs are not fulfilled, this Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress (per P.N. Bhagwati, J. in Bandhua Mukti Morcha v. Union of India [(1984) 3 SCC 161] ). 41. Concluding the discussion, the Constitution Bench held (in paragraph 68(vii) of the Report) that the power of judicial review exercisable by a constitutional court cannot be restricted by a statutory provision. It was held as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
