Category Archives: Article 226 Remedies

Guest Post: A Pulpit or a Courtroom – Exclusion of Jurisdiction and the decision in Girish Kumar Suneja

(Previously on this blog, we have covered the serious constitutional issues arising out of the exclusion of the jurisdiction of the High Court in the ongoing “Coal Block” cases – see here and here. Yesterday, a three-judge bench of the Supreme Court upheld this exclusion. In a guest post, Abhinav Sekhri analyses the judgment. Cross-posted from the Proof Of Guilt blog with permission.)

On 13 July 2017, a three-judges bench of the Supreme Court dismissed the petitions clubbed together with Girish Kumar Suneja v. CBI [SLP (Crl.) 9503 of 2016, hereafter Suneja]. The preliminary issue raised in these petitions was a challenge to the Supreme Court’s order dated 25.07.2014, whereby aggrieved persons were confined to only approaching the Supreme Court with a “prayer for stay or impeding the progress in the investigation / trial“, and jurisdiction of High Courts was thus excluded. This Blog, on an earlier occasion, had considered the Petitioners’ case and argued that the impugned order of 25.07.2014 was bad, and readers may refer to that post for a recap. Here, I argue that the decision in Suneja does not offer any convincing justification for why the Court disagreed.

Excluding Jurisdiction: Missing the Forest for the Trees

In Suneja, the Court takes up three key arguments assailing the exclusion of jurisdiction caused by the order of 25.07.2014 and its effects – (1) Curtailment of the High Court’s power to entertain petitions under Sections 397 and 482 Cr.P.C; (2) Exclusion of writ jurisdiction under Articles 226 and 227 of the Constitution; and (3) A violation of Article 14 caused by treating the ‘coal-block allocation scam’ cases under this special procedure. On all three counts, it disagreed with the Petitioners’ claims. On closer examination, one can see how the Court does so not by engaging with the argument, but by avoiding it altogether.

Sections 397 and 482 Cr.P.C.

On the first issue of curtailing statutory powers of entertaining revision petitions [Section 397 Cr.P.C.] and quashing petitions [Section 482 Cr.P.C.], the Court reminds us that these are not rights, such as appeals, but entitlements. A High Court may refuse to entertain these petitions. This characterisation was never in doubt – the issue, was whether it was unconstitutional to deprive the High Court of even this abilityto entertain such petitions. For this, the Court turns to the legislative history of Section 397(2) Cr.P.C. [which prevents revision petitions for challenging interlocutory orders] to elaborate that the scope of revision jurisdiction was restricted to prevent delay. But the Court does not conclude that the present petitions fall within this category, which renders these observations obiter. Perhaps proceeding with that assumption, the Court moves on to consider the scope of inherent jurisdiction under Section 482 Cr.P.C. Again, it talks of a ‘rarest of rare’ level for quashing petitions being entertained, implying that the issue must be very serious to warrant intervention. Still, no answers are offered to explain what warrants an exclusion of this jurisdiction altogether. One may then assume that the Court implies the exclusion was illegal, which is why it considers the tests for considering whether the present cases could have triggered an exercise of jurisdiction under these provisions.

In doing so, the Court makes notable errors in law. For instance, in considering the interplay between revision and quashing the Court notes that “it is quite clear that the prohibition in Section 397 Cr.P.C. [of not proceeding against interlocutory orders] will govern Section 482 Cr.P.C. We endorse this view.” This means that for Court, Section 397 applies to all final and intermediate orders, while Section 482 applies to interlocutory orders. Such a reading ignores the notwithstanding that comes at the start of Section 482, which has led the Supreme Court to conclude on several occasions that the scope of Section 482 remains untrammelled by the terms of Section 397 – most recently clarified by another bench of three judges in Prabhu Chawla [Crl. Appeal No. 844 of 2016, decided on 05.09.2016]. Remember, all this is irrelevant, because the present cases actually involved a question of why recourse to this jurisdiction could be barred. The Court only engages with that issue in its terse refusal to consider the decision in Antulay [(1988) 2 SCC 602]Antulay was a decision by seven judges, but it is distinguished because the facts were different and it involved a trial before the High Court itself, and the impugned provision therein – Section 9 of the Criminal Law Amendment Act 1952 – in turn used the 1898 Cr.P.C. The facts, though different, led the seven judges in Antulay to consider why any court’s jurisdiction could not be ousted, which would nonetheless be relevant here. That the bench in Suneja even raises the second point about the Cr.P.C. is simply shocking, since the allegations in Antulay concerned a period after 1973 and by which time the 1952 Act was being read with the new Cr.P.C. [as required by Section 8 of the General Clauses Act 1897]. 

We are then left without any answers for the actual issue. For some reason the Court continues to miss the forest for the trees, and refuses to tell us why recourse to revision and quashing was made impermissible in the present batch of cases. It painfully continues to develop on the obiter by considering whether the batch of petitions met the standard of seriousness for interference under Section 482 Cr.P.C., and concludes that “challenge to orders of this non-substantive nature that can be agitated in a regular appeal is nothing but an abuse of the process of the Court.” The observation is entirely misplaced. The Petitioners raised issues of law, arguing that certain findings suffer from impropriety – express grounds for interference under Section 397. But if recourse to that provision is barred, then what? Should recourse to Section 482 still remain impermissible? The Court ignores the peculiarity in the present set of facts, which have come about by its own hand.

Article 226 and 227 of the Constitution

The conclusions on Article 226 and 227 also proceed on an assumption that the issues raised in the batch of petitions are ‘trifling’ and therefore would not warrant interference under writ jurisdiction. With due apologies for sounding repetitive, the bench again fails to explain how this jurisdiction can be ousted entirely. In fact, here, the bench expressly says “there can be no doubt that the jurisdiction of a High Court under Articles 226 and 227 cannot be curtailed, yet extraordinary situations may arise where it may be advisable for a High Court to decline to interfere.” This volte-face is completed at the end of this part of the decision, where the bench says that “there is nothing extraordinary if the High Court ought not to interfere and leave it to this Court to take a decision in the matter in larger public interest“. But this is not what has happened in the present case! In unequivocal terms, the High Court was barred from entertaining petitions. The Supreme Court is now attempting to portray the scenario as a willing refusal by High Court’s to entertain cases, when it is actually an exclusion of jurisdiction by the Supreme Court itself. It is fair to say that nobody is fooled.

Article 14 and Judicial Legislation

The argument under Article 14 in Suneja was twofold – the ‘coal block’ cases do not constitute an identifiable class, and even if they do this differentiation must be created through statute. The Court, expectedly, whips up the rhetoric to justify why the cases are an identifiable class in themselves. But the decision does not engage at all with the more pressing issue of how such classes can be created. It says that “the order passed by this Court does not amount to legislation in the classical mould but according special treatment to a class of cases for good and clear reason and in larger public interest as well as in the interest of the accused.” There are obvious legal issues in judicially created classes for perpetrating discrimination. Judicial orders are imprecise, are creations of un-elected persons thus unrepresentative of the democratic process, and finally cannot be subjected to a challenge under Part III leaving no recourse for those aggrieved. The Supreme Court attempts to conveniently sidestep all of this by resorting to verbiage. Since nobody really knows what the ‘classical mould’ of legislation is, this is doublespeak for “the Supreme Court can do whatever it wants” – a highlight of the Court’s White-Knight tendency in this arena of economic offences [previously discussed here].

Public Interest and the Rights of Accused Persons

There are three other heads of argument that are considered in Suneja – (1) violation of Article 21 by the procedure created by the impugned order, which is not established by ‘law’; (2) illegal use of Article 142 of the Constitution to curtail both Statutory and Fundamental Rights of the Petitioners, and; (3) Illegally preventing a stay of proceedings. Rather than consider each of these in turn, it is easier to attack the common thread underlying these strands – the idea that public interest is a satisfactory justification to proscribe rights of accused persons. With great vigour the bench notes that “it is now time for all of us including courts to balance the right of an accused person vis-a-vis the rights and interests of individual victims of a crime and society. Very often, public interest is lost sight of while dealing with an accused person and the rights of accused persons are given far greater importance than societal interests and more often than not greater importance than the rights of individual victims. … It is not as if the appellants have been denuded of their rights. It is only that their rights have been placed in the proper perspective and they have been enabled to exercise their rights before another forum. 

While the Court merely makes a cursory reference to Shahid Balwa [(2014) 2 SCC 687], the same issue reared its head on that occasion. Here, again, it uses the arguments of the Petitioners against them in observing that in pressing for a stay of proceedings it seems that the conclusion of the trial is not an objective for them. These are serious cases of corruption, the Court notes, and so a stay order cannot be given for the asking. Such logic is fit for the pulpit, not for the Supreme Court. At the most basic level, the bench ignores the practical realities that plague the judiciary. The present petitions were filed sometime around winter 2016, and have been decided in July 2017. For whatever it is worth, the Petitioners did allege severe illegalities in the trial, and by refusing to consider the issue of stay at the earliest the Court allowed a potentially illegal trial to continue for six months. Within that time most of the evidence has been completed in two sets of petitions [Y. Harish Chandra Prasad v. CBI (Crl. Appeal No. 1145 of 2017) and P. Trivikrama Prasad v. CBI (Crl. Appeal No. 1153-54 of 2017]. How is that fair, and how is that a correct utilisation of judicial time? At a deeper level, the Court is effectively denouncing a class of persons from seeking an enforcement of their fundamental rights for no better reason in law than because it thinks it is against public interest. It does not realise that such rhetoric ultimately trickles down to trial courts, where an accused is then painted as guilty simply for choosing to remain silent [a fundamental right] and is thus subjected to lengthy pre-trial detention.

Conclusion

On all counts, Suneja is a bad decision. We get no further answers to why is it fair to exclude the High Court as a forum for jurisdiction beyond the bench re-iterating that this is in public interest. For this, it could have merely expressed agreement with the previous decision of Shahid Balwa and saved time. When the bench does try to engage with the legal issues, it fails to grasp what was at stake and flounders. Ultimately, the decision may result only in compounding uncertainty by using previously unheard of tests and expressions to explain what is, essentially, another instance of abusing the vast discretion vested with the unelected judges of our Supreme Court.

 

(Disclaimer: The Author was engaged as a part of the team arguing for the Petitioners in Crl. Appeal No. 1145 of 2017)

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Filed under Access to Justice, Article 21 and the Right to Life, Article 226 Remedies, Basic structure, Jurisdiction, The Judiciary

Guest Post: Decoding the WhatsApp/Privacy Case

(In this Guest Post, Praharsh Johorey examines some of the key issues in the pending WhatsApp/Privacy case before the Constitution Bench of the Supreme Court)

Once the Supreme Court re-convenes after its vacation, it will begin hearing arguments on an appeal concerning privacy issues stemming from the use of ‘WhatsApp’, a popular instant messaging application. The petition against WhatsApp originally filed before the Delhi High Court challenged as unconstitutional a change made to WhatsApp’s Privacy Policy in August 2016, which allowed it to send all collected data to its parent company, Facebook. It was claimed that this breached the ‘Right to Privacy’ of all citizens under Article 21, and restricted their freedom of speech under Article 19(1)(a). Recognising the legitimacy of these claims, the Delhi High Court issued the following directions to the owners of WhatsApp on the 23rd of September, 2016:

  1. i) If the users opt for completely deleting “WhatsApp” account before 25.09.2016, the information/data/details of such users should be deleted completely from “WhatsApp” servers and the same shall not be shared with the “Facebook” or any one of its group companies.
  2. ii) So far as the users who opt to remain in “WhatsApp” are concerned, the existing information/data/details of such users upto 25.09.2016 shall not be shared with “Facebook” or any one of its group companies.  

The Petitioners filed an appeal before the Supreme Court against these directions, claiming that they only do ‘partial justice’, and create an unreasonable distinction between WhatsApp users solely on the basis of when they began using its services. This petition invariably raises questions of the ‘Right to Privacy’, rights of digital users and freedom of speech online under Article 21 – and its position under the Indian constitution. However, there exists voluminous literature on the implied existence of such a right, such as here, here and here; and the question of reading this right under the Constitution is also sub-judice before a Constitutional Bench of the Supreme Court in K.S. Puttaswamy (Retired) and Anr. v. Union of India & Ors.

Instead, this essay concerns itself with the following questions:

  • Does the Supreme Court have the jurisdiction to intervene in a contract entered into between two private companies; i.e. WhatsApp and its subscribers?
  • Assuming such jurisdiction exists, whether the Supreme Court should intervene in contracts between private parties – and does the relationship between telecommunication companies and private consumers requires such intervention.

I will examine each question separately.

Special Leave Petitions and Jurisdictional overreach

The Petitioners have approached the Supreme Court under Article 136, which allows it the power to grant a ‘special leave to appeal’:

  1. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

In the present case, the Supreme Court has constituted a Constitution Bench (Five Judges) to hear the appeal against the order of the Delhi High Court – having granted a special leave to appeal under Article 136. The original petition was filed as a Public Interest Litigation before the Delhi High Court under Article 226. The Respondents, WhatsApp and Facebook contended that the High Court did not have appropriate jurisdiction to hear the petition because neither company is a public body discharging public functions, and therefore not amenable to constitutional scrutiny. The observations of the High Court indicate an agreement with this contention:

  1. In fact, the users of “WhatsApp” and the Respondent No.2 (Whatsapp itself) are parties to a private contract and the users of “WhatsApp” having voluntarily opted to avail the services of the said Application, are bound by the terms of service offered by the Respondent No.2…. it appears to us that it is not open to the users now to contend that “WhatsApp” shall be compelled to continue the same terms of service.
  2. Even the ‘Right to Privacy cannot be a valid ground to grant the reliefs as prayed for since the legal position regarding the existence of the fundamental right to privacy is yet to be authoritatively decided.’
  3. Since the terms of service of “WhatsApp” are not traceable to any statute or statutory provisions, it appears to us that the issue sought to be espoused in the present petition is not amenable to the writ jurisdiction under Article 226 of the Constitution of India.

However, the unambiguous conclusion arrived at by the Court concerning its jurisdiction under Article 226 was swiftly ignored, with the Court proceeding without explanation to issue directions binding upon Whatsapp. As a result of this demonstrably unclear stance, the question of jurisdiction has now been raised before the Supreme Court – questioning the very ability of the Court to intervene in private acts of private parties.

Whatsapp and Direct Horizontality

In his essay on ‘Horizontality under the Constitution’, which can be found here, Gautam Bhatia notes that constitutional rights are deemed to regulate the relationship between individuals and the state, i.e. ‘vertically’. However, with the gradual expansion in the role of the private sector in our daily lives coupled with the simultaneous withdrawal of the State from several sectors, there has emerged a need to subject private relationships to constitutional scrutiny; i.e. impose ‘horizontality’. With respect to Whatsapp, the situation involves regulating a private act (the contract to join Whatsapp) which private citizens consent to – which is different from the Court holding the State responsible for moulding conduct of private parties in accordance with the Constitution as in Vishaka v. State of Rajasthan, or altering laws to which private parties are subject such as in R. Rajagopal v. State of Tamil Nadu. Thus, the Court could impose what is known as ‘direct horizontality’ – where the private act of a private party is challenged on grounds of the Constitution.

A similar question was posed to the Supreme Court in relation to the functioning of the Board of Cricket Control in India (“BCCI”) – and whether the legality of its activities could be judged on the cornerstone of the Constitution. In both cases relating to the BCCI, Zee Telefilms Ltd. & Anr vs Union Of India & Ors and BCCI v. Cricket Association of Bihar, extensive discussion took place as to whether the BCCI could be considered as a ‘State’ under Article 12. However, no question has been raised as to Whatsapp’s status as a private entity. Therefore, the Court’s observations in respect of the constitutional obligations of the BCCI as a non-state entity are crucial. In paragraph 30 of the Zee Telefilms case, Hegde J. notes:

‘But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.’

Subsequently, in the BCCI judgement, Thakur J. observes:

Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law takeover or regulate but even lends its assistance to such a nongovernment body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action.

A joint-reading of these two observations leads to the irresistible conclusion that only those private bodies that discharge ‘public functions’ are amenable to claims under Article 226, and not under Article 32. Thus, the Court’s interpretation contemplates a situation where the claim must change depending on the forum one is before; which surely was not contemplated by the drafters. Thus, the only permissible reconciliation of this position is that private parties performing public functions can be made subject to general public law standards (good faith, non-arbitrariness) which may overlap with Part III – particularly Article 14, 19 and 21; but does not imply Judicial review in respect of all provisions of Part III. At minimum, a litigant aggrieved with a Private party cannot go straight to the Supreme Court under Article 32, but must first go to the High Court under Article 226 to enforce the aforementioned administrative law standards.

Instant Messaging and the ‘Public Function’ Test

However, prior to examining which provisions of Part III the Privacy Policy may fall foul of, we must first examine whether Whatsapp can even be considered as fulfilling the ‘Public Function’ test. In Sukhdev and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr. the Court was required to determine whether the Oil and Natural Gas Commission, Indian Finance Corporation and the Life Insurance Corporation, all of which are statutory organisations, were entitled to claim protection under Part III. The Court held that they were, stating:

Another factor which might be considered is whether the operation is an important public function. The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion.

As referenced earlier, there is no argument that WhatsApp is an instrumentality of the State under Article 12 – as it is neither part of the State apparatus, nor is it considered an instrumentality or agent of the State itself. Therefore, the question to be resolved is whether providing a platform for communication can be considered to be a ‘public function’ – making it amenable to 226 jurisdiction. Two facets of this question are important: first, the nature of communication services as a public good, and second, whether WhatsApp is necessarily required to exercise ‘control’ over this service to be regarded as discharging a public function.

It is undeniable that telecommunication plays a crucial role in 21st century society. A denial of all telecommunication services to society for a single day would impact global communication, impair business and disrupt the Economy – not to mention the significant mayhem it may cause in the process. Consequently, it is more than arguable to suggest that the organisations providing telecommunication services are collectively performing a ‘public function’. The Supreme Court noted that in the context of the BCCI, it was three factors – complete control over cricket, significant financial investments and state support – that lead to the determination of it discharging a public function. However, note must be made here of the unique nature of cricket in India, in that it represents a ‘primary cultural good’ (Parthasarathy); and that BCCI’s complete control over the sport in India represented its power to control access to this basic human good.

To apply this test of ‘control of basic goods’, one must understand the nature of instant messaging in India, and whether it can be said that WhatsApp exerts a comparable amount of control over this service. A majority of Indian internet users (63% of the people surveyed, MEF Survey 2016) currently rely upon WhatsApp as their primary communication device – nearly 200 million consumers. However, having significant market share is not a sufficient indicator of whether WhatsApp exercises ‘control’ over the utility in India. Unlike the BCCI, WhatsApp cannot be said to have any legitimate role to play in the governance, regulation or administration of this sector, and does not (yet) have a recognised monopoly over the utility. If WhatsApp were recognised as being the sole provider of all instant communication services to Indians, it could have been contended that its control over a public utility renders it amenable to 226 jurisdiction. However, holding so in the present context would set a dangerous precedent of all popular services being considered as effectively discharging a public function; not necessarily limited to the nature of service in question.

Re-writing Private Contracts

Even accepting that the Supreme Court has the jurisdiction to adjudicate the Whatsapp petition, one must consider the propriety of the Judiciary intervening in private contracts. It is undisputed that the millions of customers that accepted WhatsApp’s new privacy policy did so voluntarily, having accepted the terms and conditions clearly established. Resultantly, if the Supreme Court were to issue directions to WhatsApp changing the terms of such policy, it is intervening in a voluntary agreement entered into between two private parties.

However, such a situation is not unprecedented. The Supreme Court has made a number of determinations that change the very basis of private contracts – doing so particularly frequently in the context of labour contracts. In the year 2016, it mandated in State of Punjab v. Jagjit Singh that employers must ensure ‘equal pay for equal work’, holding:

It was held, that the Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starvation wages. It was pointed out, that a casual labourer who had agreed to work on such low wages, had done so, because he had no other choice.

Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.

The justification for intervening in a private contract therefore stems from two factors – first, the coerced consent of the labourers who have ‘no other choice’ and second, from the ‘domineering position’ of the employers who have the power to ‘enslave’ these workers. As a result, the Court intervened to protect the otherwise defenceless labourers from the exploitative practices of the employers. A similar line of argumentation has been placed before the Supreme Court by the WhatsApp petitioners – in that WhatsApp enjoys a dominant position in the instant messaging space, and its consumers are therefore have no option but to be subject to its exploitative data practices. The Supreme Court also echoed this sentiment in one of the hearings, warning WhatsApp against ‘consumer entrapment’.

However, this line of argumentation misses the key facet of consumer choice – something evidently absent in the minimum-wage labour market. Consumers are constantly advertised a number of different services that provide nearly perfect competition to WhatsApp, and are allowed free migration across these platforms. Moreover, there is no legal reason why consumers who use a platform like WhatsApp should not be allowed to waive their right to keep their data secret in exchange for using an evidently useful service. Any consumer who is dissatisfied or uncomfortable with the terms of use of such an application is legally allowed to exit its operation – making the case for judicial intervention in such a contract untenable.

Conclusion

It is not my position that we should not have a right to privacy, or that WhatsApp’s Privacy Policy is desirable. However, to entertain and adjudicate such a petition on its merits would require the Supreme Court to significantly extend its jurisdiction – and begin upon an already slippery slope of subjecting private parties to constitutional provisions. Instead, it is my position that the legislature should enact a comprehensive Data protection framework that would forbid companies from transferring data of its consumers without their express authority – and then allow the Judiciary to adjudicate disputes on such basis. By broadly invoking Article 21 and Article 19 for all privacy disputes, we risk allowing several private companies from getting away with privacy violations that are actionable in most other jurisdictions.

Who said creating a ‘Digital India’ would be easy?

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Filed under Article 226 Remedies, Communications Technologies, Judicial Review, Jurisdiction, Public goods

Constitutional Problems with the Exclusion of Jurisdiction in the Coal Block Cases

(In this guest post, Abhinav Sekhri takes on from his previous analysis of the Girish Kumar Suneja Case, and demonstrates the various constitutional issues that arise out of the manner in which the Supreme Court has excluded the jurisdiction of the High Courts in certain criminal cases. This essay has been cross-posted from The Proof of Guilt blog).

The Supreme Court did three important things in Order dated 25.07.2014 in Manohar Lal Sharma v. Principal Secretary & Ors. [W.P. (Crl.) 120/2012]:
  • Directed the competent authorities to issue requisite notifications to appoint Mr. Bharat Parashar as a Special Judge to exclusively deal with “offences pertaining to coal block allocation matters”;
  • Transferred all cases pending before courts “pertaining to coal block allocation matters” to the Court of this Special Judge;
  • Clarified that “any prayer for stay or impeding the progress in the investigation/trial can be made only before this Court and no other Court shall entertain the same.”

The Delhi High Court in Girish Kumar Suneja v. CBI [Crl. M.C. No. 3847/2016, decided on 27.10.2016] dismissed a petition under Section 482 Cr.P.C. as being non-maintainable, being of the view that the Order dated 25.07.2014 passed in W.P. (Crl.) 120/2012 by the Supreme Court completely excluded the jurisdiction of the High Court (excluding appeals against judgments).

On January 24, 2017, the Coal Bench of the Supreme Court posted a batch of eight connected matters for hearing on the 6th of February (including the challenge against the Delhi High Court order in Suneja). These cases, both directly and indirectly, challenge an important issue of law: the exclusion of the High Court in either appeals, revisions, or writ jurisdiction in the coal block allocation cases. This has been discussed earlier, and I develop those thoughts in this post in support of the position that such an exclusion is unconstitutional.
Testing Article 14
In Anwar Ali Sarkar v. State of West Bengal [AIR 1952 SC 75], the West Bengal Special Courts Act 1950 was struck down as there was no guidance offered by Section 5 of that Act in prescribing which category of cases merited the special procedure, which greatly differed from the ordinary procedure prescribed in the Cr.P.C.
The Supreme Court thus upheld, in principle, creation of a specialised procedure through statute to address a particular category of offences. In Kedar Nath Bajoria v. State of West Bengal [AIR 1953 AIR 404], the majority concluded that the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 suffered from no infirmities when it allowed the executive to selectively send certain cases to Special Courts, as long as they were from a selection of economic offences provided for in the Schedule. Similarly, in Asgarali Nazarali Singaporewalla v. State of Bombay [AIR 1957 SC 503], the Supreme Court upheld the validity of the Criminal Law Amendment Act, 1952, which created a special procedure for the trial of offences under Sections 161, 165, 165A IPC and Sections 5(2) of the Prevention of Corruption Act, 1947 (all provisions now repealed).
In Re Special Courts Bill [AIR 1979 SC 478], the Supreme Court answered a reference under Article 143(1) of the Constitution of India, when the President sought consideration on whether the Special Courts Bill, 1978, was constitutional. On the issue of Article 13, the Justice Chandrachud (as he then was) provided a thirteen-limb test to judge the Bill, and found that it passed muster.
Adopting the tests laid down by the Supreme Court, it is apparent that the Order dated 25.07.2014 is bad in law. It creates a distinct category of cases “pertaining to coal block allocation matters” without specifying the scope and extent of this classification. Nothing is provided to show how the present classification carries any objective, and how it is connected to such an objective in the first place.
Just, Fair, and Reasonable?
The particular classification enforced by the Order dated 25.07.2014 creates a procedure that violates Article 21 of the Constitution, for it is not just fair and reasonable following the test of Maneka Gandhi v. Union of India [AIR 1978 SC 597]. The Supreme Court has, since Vineet Narain [(1996) 2 SCC 199; (1998) 1 SCC 226], reluctantly agreed to monitor investigations in certain sensitive cases. These ‘Court-Monitored Investigations’, have the agency report directly to the Supreme Court during investigation to the complete exclusion of other forums. However, as clearly held in Vineet Narain, the exclusivity came to an end with the completion of an investigation, and regular criminal procedure resumed.
In the present case, the exclusivity continues for the entire duration of the trial, and thus offends Article 21 of the Constitution. The concept of a fair trial is embedded within the notion of Article 21, and the idea of a fair trial encapsulates within it the concept of effective forums of Appeal. The adjudication in appeal or extraordinary situations by a constitutional court, i.e. the High Court, is certainly part of the fair trial guarantee under Article 21. The decision by a Division Bench of the Supreme Court in Shahid Balwa v. Union of India [(2014) 2 SCC 687] where such an exclusion was upheld must be reconsidered. The nebulous concept of ‘large public interest’ cannot override the concrete constitutional guarantees made to every person under the Constitution of India.
As the denial of adjudication by the High Court for only a vague category of persons is clearly contrary to Article 21, it must then be determined whether there is any law to save such discrimination. The order dated 25.07.2014, would not be law for the purposes of Article 21, and therefore nothing saves the violation of Article 21 in the present case.
Violating the Basic Structure?
The very exercise of the judiciary creating a special procedure for the trial of certain offences is contrary to the Basic Structure. The creation of offences, and the creation of their procedure, is a function well-vested with the Legislature in the separation of powers fundamental to the Constitution’s basic structure. Such usurpation of power offends the system of checks and balances that is inherent in the Constitution. It is akin to the process of re-promulgating ordinances, which a Seven-Judge Bench of Supreme Court recently held to be a fraud on the Constitution [Krishna Kumar Singh & Anr. v. State of Bihar & Ors, Civil Appeal No. 5875/1994, decided on 02.01.2017].
Furthermore, the Supreme Court in L. Chandra Kumar v. Union of India & Ors. [(1995) 1 SCC 400] found the complete exclusion of judicial review by the Administrative Tribunals Act, 1985 to be contrary to the basic structure of the Constitution. The power of the High Courts under Article 226/227 was specifically found to be part of the Basic Structure by the Constitution Bench in L. Chandra Kumar. Therefore, the exclusion of jurisdiction perpetrated by the Order dated 25.07.2014 is illegal, and accordingly cannot be given effect to.
Although it is settled that judicial orders are outside the purview of Part III of the Constitution [Naresh Sridhar Mirajkar, AIR 1967 SC 1], this cannot be utilised to do indirectly what is impermissible directly. A Seven-Judge Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak & Ors. [(1988) 2 SCC 602] reviewed and set aside orders passed by another bench of the Court in proceedings whereby a special, but illegal, procedure was created to address the trial of certain offences against the erstwhile Chief Minister of Maharashtra. While doing so, it was observed that “the power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law. No Court, whether superior or inferior or both combined can enlarge the jurisdiction of the Court or divest the person of his rights of revision and appeal.”

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Filed under Access to Justice, Article 21 and the Right to Life, Article 226 Remedies, Basic structure, Equality, Jurisdiction

Guest Post: Girish Kumar Suneja and the Exclusion of the High Court’s Jurisdiction in Anti-Corruption Cases

(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.

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Filed under Article 226 Remedies, Basic structure, Judicial Review, Jurisdiction