(This is a guest post by Abhinav Sekhri).
Few headlines were made last week when a Single Judge of the Delhi High Court decided Girish Kumar Suneja v CBI (Crl. M.C. 3847/2016 decided on 27.10.2016), dismissing a petition under Section 482 Cr.P.C. read with Article 227 of the Constitution on grounds of maintainability. The case was filed before the High Court, challenging an order framing charges in one of the many Coal-Block Allocation Scam related matters that are being tried before a Special Judge in New Delhi (this particular case also had the industrialist Naveen Jindal as a co-accused). I find this strange though, since it upholds arbitrary exclusion of access to justice initiated and approved by the Supreme Court in a widely publicised trial. This guest post is an attempt to confer some much needed attention on this decision and spur discussion on the underlying issues at play.
The Genesis – Shahid Balwa and the 2-G Trial
I’ve written earlier about a media tendency to represent the Supreme Court as the White Knight cleaning up the corrupt governance of India, and of this being reciprocated by the Court as well. The best instance of this was the allocation of spectrum scandal in all its breadth that hit the country in 2010-2011. Since corruption allegations had been levelled against the executive and legislature, there was public approval for the Supreme Court to handle everything. So it set aside the license-allocations, and, most importantly for this post, monitored a CBI investigation and then vetted the entire set-up (from the particular judge to the special prosecutor) for trial of the offences allegedly arising out of this ‘2-G Scam’. While doing this, it also directed that any challenge to orders passed by the Special Judge trying the 2-G Scam cases had to be made before the Supreme Court. All aggrieved persons were denied approaching the High Court for relief. This was labelled an exercise of the Court’s extraordinary powers to do ‘complete justice’ under Article 142 of the Constitution.
Restricting procedural of rights of accused persons had been done before by both Federal and State legislatures [the legality of which came up before the Supreme Court way back in State of West Bengal v Anwar Ali Sarkar (AIR 1952 SC 75)]. But for the first time we saw the Supreme Court itself go ahead and take up the reins. And since the Supreme Court was seemingly handling everything at that point, this evoked little criticism. Naturally, though, it was challenged by the accused in the first 2-G Scam case which was decided in Shahid Balwa v Union of India & Ors. [(2014) 2 SCC 687]. The Supreme Court took up this opportunity to rubber-stamp its actions with approval without giving any inkling of legal justification. Instead, the Court turned to coffee-table conversation and gave ‘Larger Public Interest’ as the answer. Larger Public Interest demanded a speedy trial. This translated into denying the individuals their constitutional remedies to challenge judicial orders, because these challenges were mostly fraudulent abuses by these ‘better-heeled litigants’ of the ‘openings’ offered by the criminal justice system and delay the trial. In fact, the Court thought the accused persons owed it to this Larger Public Interest to forego their rights to appeal and challenge decisions to ensure the smooth progress of the trial.
The Coal Scam and Girish Kumar Suneja
The Coal-Block Allocation Scam was the latest opportunity for the Supreme Court to reprise its White Knight act and go through the repertoire of corruption-cleaning remedies. Barring access to the High Court for criminal defendants again figured as part of this and became the focal point in Girish Kumar Suneja. The Petitioner argued a challenge to the order framing charges was maintainable before the High Court and could not be barred by the Supreme Court’s orders. This seemed obvious, for of course the Supreme Court could never have intended to take away substantive rights (such as the right to challenge an order on charge under S. 482 of the CrPC), or limit the High Court’s writ jurisdiction under Articles 226 & 227. The focus of those orders was to prohibit challenges that sought a stay against trial court proceedings, and there was no problem here as no stay was sought.
The Delhi High Court dismissed the petition as non-maintainable. To its credit, it did not merely recite Shahid Balwa, and instead gave a reasoned order with three main planks of reasoning. The first was to distinguish the right of appeal and the right of revision/exercise of inherent powers by the High Court. There was no problem in denying the latter, the High Court held, because it was discretionary as opposed to a statutory right of appeal. The second plank was to conclude that no problem arose by denying writ remedies under Articles 226 & 227 as the Supreme Court remained accessible to those aggrieved. And finally, the High court observed that orders passed under Article 142 were binding on all courts and thus had to be complied with in the present case.
Comment – An Odious State of Affairs
Girish Kumar Suneja remains a poor decision though. For starters, if the High Court felt bound by Article 142 then it renders the other planks of reasoning entirely superfluous. Those planks, in any event, are made of termite-stricken wood. In distinguishing the right of appeal with revision / inherent powers the High Court missed the point entirely. The issue here was not about the exercise of power but about whether access to court through this means could itself be barred completely for particular litigants. On this point the Petitioner cited Anur Kumar Jain [(2011) 178 DLT 501 (DB)] (which I have discussed on The Proof of Guilt earlier). In that case, a Division Bench of the High Court held that while Section 19 of the Prevention of Corruption Act, 1988 barred a revision against orders on charge, this could not prohibit invoking Section 482 Cr.P.C. and / or Articles 226 & 227 of the Constitution, as such a denial would be unconstitutional. The decision tries to side-step the issue of unconstitutionality in denying writ remedies [held contrary to the basic structure in L. Chandra Kumar (1997) 3 SCC 261] by wrongly equating the Supreme Court and High Court as fungible forums which is contrary to the text of the Constitution itself. I would go so far as to argue that reliance on Article 142 was also misplaced here. The orders passed on 25.07.2014 by the Supreme Court in the Coal Block Allocation Scam did not specifically invoke Article 142 unlike the similar orders that were passed at the time of the 2-G Scam.
The biggest problem remains the decision in Shahid Balwa. In Anwar Ali Sarkar (supra) the Court struck down a West Bengal Special Courts Act since it did not provide any principles for the Government to decide which cases could be tried by special procedures that took away some rights of accused persons. Larger Public Interest is as bad, if not worse, as that untrammelled executive discretion the Court warned against. The rhetoric about ‘better-heeled litigants’ reminds me of the criticisms levelled by Professor Hart in his exchange with Patrick (later Lord Devlin, where he questioned his conclusions on the relationship between law and morals for lacking any empirical basis. But since Article 142 of the Constitution does not prescribe how the Court must go about dispensing ‘complete justice’, we are expected to keep calm and march on knowing that our constitutional rights shall remain susceptible to be taken away based on what the Court feels is the Larger Public Interest One can argue that its applicability is limited by relying upon the Three Judge Bench decision in State of Punjab v Rafiq Masih [(2014) 8 SCC 883] which noted that orders under Article 142 do not constitute binding precedent [a paragraph that was cited in Girish Kumar Suneja]. This would prevent blind reliance on Shahid Balwa to pre-empt any debate on the validity of such orders in subsequent cases. One can only hope that the decision in Shahid Balwa has been cut down to size before the next time the White Knight makes a reprisal.