Split verdict on Centre's plea to recall black money order

Justice Kabir says application is maintainable, but Justice Nijjar rules plea is misconceived

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.