Guest Post: Article 142 and Taxation by Judiciary

[This is a guest post by Suhrith Parthasarathy.]

Article 265 of the Constitution states that no tax shall be levied or collected except by authority of law. One would think this serves as a peremptory norm, that the government of India can impose a tax only with express legislative sanction. But in a judgment delivered on 4 May, the Supreme Court (through a bench comprising Justices M.R. Shah and B.V. Nagarathna) in Union of India v. Ashish Agarwal, rendered this norm nugatory and resuscitated notices of reassessment that had been issued by the Income Tax Department without any sanction of law. The bench achieved this by reversing not only the judgment of the Allahabad High Court that had been carried on appeal to it, but also the judgments of at least seven other High Courts, which were, in the first place, not before the court for adjudication. The only reasoning offered, for both resuscitating the notices and for reversing judgments that were not on appeal before the court, was that “complete justice” had to be achieved, that Article 142 of the Constitution granted the Supreme Court the power to revive the dead, and the power to give life to actions that were, even by the court’s own admission, evidently unconstitutional.

Consider the facts leading up to the case. The Income Tax Act, 1961, as it existed prior to 1 April 2021, allowed the Revenue the power to reopen completed assessments under certain exceptional circumstances. The contours of this power were broadly delineated in Sections 147 to 153 of the Act. Simply put, the Revenue could reopen assessments if it had a “reason to believe” that income had escaped assessment. A notice for reopening for a particular assessment year (that is the year immediately succeeding a financial year) had to be issued no later than six years after the end of such an assessment year. A proviso written into the law also stipulated that in cases where four such years had lapsed, and where the revenue had previously subjected the case to a “scrutiny”, the tax officers had to additionally establish that the assessee had failed to disclose fully and truly all material facts—that is, it wasn’t enough if the Revenue had some material or the other in its hand, but its effort at reassessment must emanate out of the assessee’s willful omissions.

In March 2020, when the country was reeling from the effects of the Covid-19 pandemic, the department was unable to issue reopening notices (with, as we can see, quite legitimate reasons) within the timeframe prescribed under the Act. This inability was obviously not limited to cases of reopening, but also extended to a number of other notices and actions that both the department and the assessee were obliged to perform. To resolve this difficulty, the Union government enacted in September of that year the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (let’s call it the “TOLA”).

Section 3(1) of the TOLA effectively stipulated that where a time limit had been specified under the Income Tax Act for the completion or compliance of any action, and where that time limit fell between 20.03.2020 and 31.12.2020 (or such other date after 31.12.2020 as may be notified by the Central Government), and such completion/compliance has not been made, the time limit would stand extended to 31.03.2021 or any other date that the Central Government might, by notification, specify.

In furtherance of this power granted to it by TOLA, the central government issued a series of notifications extending timelines for performing various different actions. These included schedules for the issuance of reopening notices under Section 148 of the Act. Thus, notices for reopening that had to be issued by 31 March 2020 could now be issued on or before 30 June 2021. It was in apparent exercise of this power that the government issued a series of notices to various different assesses under Section 148 of the Income Tax Act between the months of April and June 2021 (the Supreme Court says that there were some 90,000 such notices that had been issued for this period). But what these notices ignored were that the section under which they were issued simply didn’t exist anymore in the same form that it did before 31 March 2020. This is because Parliament had amended the extant scheme of reassessment through the Finance Act, 2021, with effect from 1 April 2021.

Up until 1 April 2021, the Revenue could reopen an assessment only if it had reason to believe that income had escaped assessment. It’s safe to say that the use of the phrase, “reason to believe” together with the various elisions in the existing legislation, has led to endless litigation. At one point, the Supreme Court carved out its own addition to the stipulations in Sections 147 and 148 (G.K.N. Driveshafts (India) Ltd. v. Income Tax Officer & Ors., 259 ITR 19 (SC)). Since the department wasn’t supplying the assessee a copy of the reasons on which assessments were being reopened, the court directed the department to supply those reasons on a request being made by an assessee. It also allowed the assessee the right to object to those reasons, when supplied, through a written explanation. The department was then obligated to dispose of those objections by way of a separate, speaking order. [Let’s call this the “GKN procedure”]. That speaking order would inevitably be challenged in writ proceedings. There’s little doubt that the law’s architecture reaped confusion and chaos—many persons were subjected to harassment on what were long-completed assessments.

In introducing the changes to the reassessment procedure through the Finance Act, 2021, the government claimed to be addressing this chaos. The apparent objective was to streamline the process, by allowing for reopening of assessments only in a very limited set of cases, and thus weed out unnecessary litigation. To achieve this, the law introduced a number of changes. Among other things, it now codified the GKN procedure and inserted it into the legislation. Henceforth, the assessing officer would have to conduct a prior enquiry before issuing a notice for reopening and would have to provide the assessee the information on the basis of which the reopening was sought, and then ask the assessee to show cause why a reopening ought not to be made. What is more, the new law also modified the existing timelines for reopening. A reopening notice could now be issued only up to a period of three years from the end of an assessment year. The Revenue could, however, in certain exceptional cases—where the income that had apparently escaped assessment was represented in the “form of an asset”—reopen an assessment up to a period of ten years from the end of an assessment year. By the government’s own account this procedure for reopening was transformative. If nothing else, it altogether upended the existing law on the subject.

These alterations had entered the legislation by the time the executive issued notifications under the TOLA, extending timelines for issuances of notices under Section 148 of the Act wherever limitation had expired on 31 March 2020. We know, through what is well settled law, that a substitution brought about by legislation has a twin effect: it leads to the deleting and effective repealing of the earlier provision of law and the insertion, in its place, of the new provision. [Ramkanali Colliery of BCCL v. Workmen, (2001) 4 SCC 236]. We also know, through various judgments of the Court, that any repeal of a provision of law, whether express or implied, has the effect of completely obliterating the repealed provision from the statute books.

Here, from 1 April 2021, the erstwhile Sections 148 to 153 had been obliterated from the Income Tax Act, 1961, and had been replaced by a set of new provisions. But the notification issued under TOLA, without legislative amendment, sought to go round these changes. It attempted this through a bizarre device: in an explanation to the notification it “clarified”, apparently to remove any doubts, that “for the purposes of issuance of notice under section 148 as per time-limit specified in section 149 or sanction under section 151 of the Income-tax Act, under this sub-clause, the provisions of section 148, section 149 and section 151 of the Income-tax Act, as the case may be, as they stood as on the 31st day of March 2021, before the commencement of the Finance Act, 2021, shall apply.”

Consider this for a moment: the executive was telling its income tax officers that they could go ahead and issue notices under a provision of law that Parliament had repealed. Remember, under TOLA, the executive could by notification extend timeframes fixed under the Income Tax Act. This, on any reasonable reading of the law, would mean the Income Tax Act as it stands on the date of a notification. After all, it with this in mind that Parliament had even introduced the changes to the scheme for reopening through the Finance Act, 2021. If Parliament at the time had wanted to save the power of the executive to issue notices under the erstwhile law it could have done so through a simple savings clause. But it expressly chose not to do so.

Yet, emboldened by the notifications, tax officers issued notices even after 1 April 2021 under the erstwhile provision of law. Naturally, this led to a series of challenges across the country—assesses, faced with these notices, argued that the notifications were ultra vires both the TOLA and the Constitution, and that the notices by themselves were without authority of law. They had been issued under a provision that had been obliterated from the statute and the Constitution, they argued, does not permit taxation without authority of law. Many High Courts granted interim protection to the assesses and at least eight of them—Bombay, Allahabad, Madras, Delhi and Rajasthan among them—quashed the notices (the Chhattisgarh High Court was the sole court to take a different view).

The Central Board of Direct Taxes filed affidavits before the High Court defending the notices. In these depositions, notably, the department did not plead ignorance. It claimed that the notices were issued validly and that despite the amendments brought to the Income Tax Act, the time available for issuing notices under the old provisions stood “frozen” by the operation of the TOLA. However, if this argument were to be accepted, the High Courts would have wound up allowing a virtual carte blanche to the executive, to resuscitate into life repealed enactments through a mere executive notification. Conscious of the anomalous situation that this might lead to, the High Courts held that the notices had been issued without authority of law, that from 1 April 2021 onwards any action for reassessment had to be predicated on the new scheme. The department, no doubt, still had the power (wherever the limitation prescribed under the new law hadn’t expired) to issue fresh notices under the amended law. But the old notices simply lacked any authority of law and for that reason had to necessarily be quashed.


It was only the judgment of the Allahabad High Court that had been taken on appeal to the Supreme Court. The Revenue told the Court that it was in the process of filing appeals against the other judgments. Given the gravity of the issue, and given the number of individuals (and other entities) affected by the issue, you would have thought the court would await the filing of those appeals before it rendered a final verdict, or at the least that the Court would grant reasonable time for interested parties to intervene in these proceedings. Instead, the Court  proceeded to grant leave and reserve judgment immediately after the assessees in the cases on appeal were before it. Having done this, the Court proceeded to reverse the High Court’s judgment, on grounds that were simply not pleaded by the Revenue before the court of first instance.

The only explanation for this conclusion is found in paragraph 8. The High Courts, the judgment holds, were quite correct in concluding that notices issued after 1 April 2021 could have only been issued under the new law. However:

“…At the same time, the judgments of the several High Courts would result in no reassessment proceedings at all, even if the same are permissible under the Finance Act, 2021 and as per substituted sections 147 to 151 of the IT Act. The Revenue cannot be made remediless and the object and purpose of reassessment proceedings cannot be frustrated. It is true that due to a bonafide mistake and in view of subsequent extension of time vide various notifications, the Revenue issued the impugned notices under section 148 after the amendment was enforced w.e.f. 01.04.2021, under the unamended section 148. In our view the same ought not to have been issued under the unamended Act and ought to have been issued under the substituted provisions of sections 147 to 151 of the IT Act as per the Finance Act, 2021. There appears to be genuine non­application of the amendments as the officers of the Revenue may have been under a bonafide belief that the amendments may not yet have been enforced. Therefore, we are of the opinion that some leeway must be shown in that regard which the High Courts could have done so. Therefore, instead of quashing and setting aside the reassessment notices issued under the unamended provision of IT Act, the High Courts ought to have passed an order construing the notices issued under unamended Act/unamended provision of the IT Act as those deemed to have been issued under section 148A of the IT Act as per the new provision section 148A and the Revenue ought to have been permitted to proceed further with the reassessment proceedings as per the substituted provisions of sections 147 to 151 of the IT Act as per the Finance Act, 2021, subject to compliance of all the procedural requirements and the defences, which may be available to the assessee under the substituted provisions of sections 147 to 151 of the IT Act and which may be available under the Finance Act, 2021 and in law.”

Except this wasn’t the argument of the Revenue. The Revenue did not claim—certainly not in the affidavits filed by it in the High Courts—that it had made a bona fide mistake in invoking a dead law. The Revenue’s case was that the substituted provisions were still partly alive, that TOLA had allowed it the power to issue notices under the amended clauses. Indeed, the Court’s assertion that these notices had been issued as a result of some innocent misunderstanding of the law is belied by its own recording in paragraph 4 of the judgment, where it notes that “despite the substituted sections 147 to 151 of the Income Tax Act, 1961 by the Finance Act, 2021 coming into force on 1st April, 2021, according to learned ASG, the Revenue issued approximately 90,000 reassessment notices to the respective assessees under the erstwhile sections 148 to 151 thereof by relying on explanations in the Notifications dated 31st March, 2021 and 27th April, 2021.” But having noted this, the Court doesn’t so much as consider the purport of these explanations—these weren’t cases of assessing officers acting on their own accord; these were cases where the Union executive believed that it could bypass Parliamentary law through pure fiat.

The Supreme Court’s ruling that the notices quashed by the Allahabad High Court ought to be treated as notices issued under the new law comes with a further direction: judgments that were never on appeal before the Supreme Court would also now stand mechanically reversed. This is because the Court apparently cannot be burdened by over 9,000 appeals that the Revenue might have to prefer. That the assessees in those cases might have had something of value to tell the Court wasn’t so much as considered. Or, for that matter, that those assessees who had succeeded before the High Court possess rights of their own: among other things, a right to be heard before a decision touching upon their interests is taken. The Supreme Court is as much bound by principles of natural justice as any other state functionary. Yet, in one fell swoop, judgments of eight different High Courts were reversed without so much as issuing notices to the assessees in those cases. How could this be done? How could judgments not on appeal be reversed? The Supreme Court has one answer: Article 142 of the Constitution of India.

Article 142(1) reads as follows:

The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

As is clear from the bare text the Court is allowed to do complete justice in a cause or matter “pending before it.” Here, however, it was only the judgment of the Allahabad High Court that had been carried on appeal before the Supreme Court. Yet, the Court seemingly treats judgments from various other High Courts as matters “pending before it”. And it does so without telling us how it’s entitled to do so under Article 142(1).  

Article 142 has been a source of much misuse. Many have critiqued its use, including in these pages. The Court itself has also, on occasion, pointed out the limitations in the provision. For example, in Prem Chand Garg vs. Excise Commissioner, U.P., Allahabad, (1963) a Constitution Bench held as follows:

“In this connection, it may be pertinent to point out that the wide powers which are given to this court for doing complete justice between the parties, can be used by this court for instance, in adding parties to the proceedings pending before it, or in admitting additional evidence, or in remanding the case, or in allowing a new point to be taken for the first time. It is plain that in exercise these and similar other powers, this Court would not be bound by the relevant provisions of procedure if it is satisfied that a departure from the said procedure is necessary to do complete justice between the parties.”

Similarly, in Supreme Court Bar Association v. Union of India (1998), another Constitution Bench held as follows:

“…the substantive statutory provisions dealing with the subject matter of a given case, cannot be altogether ignored by this court, while making an order under Article 142. Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject.”

At least two limitations inherent in Article 142 are evident from a reading of these judgments. One, that the clause needs to be restricted to doing complete justice to parties before the court and nothing more. Two, that the provision cannot be deployed to make orders that are in conflict with statutory law. But the judgment in Ashish Agarwal ignores these mandates. It fails to consider the fact that it was reversing judgments rendered by at least seven High Courts despite the fact that the assesses in those cases were not before it. It also seems to scarcely mind that it was resuscitating notices issued under what was effectively a dead law, that its direction is plainly contrary to the terms of the Income Tax Act as they stood on the date on which the notices had been issued.

According to the bench, the upshot of the High Courts’ rulings was to leave the Revenue “remediless.” But what the High Courts were doing was to simply apply the law as it stood on the day. If the executive happened to find itself handicapped by any error of law committed by it, it could look, at best, to Parliament for help. Such a solution would have entailed a retrospective enactment, something which the government—especially on the back of its troubles with Vodafone and Cairn Energy—has claimed it doesn’t believe in. And no doubt, any such law would have also been subject to separate constitutional scrutiny. But in a system built on the principle of separation of powers, worries of this kind ought to play no role in the Court’s effort to deliver justice.

[The author was involved with some of the writ petitions before the High Court of Madras.]

Guest Post: Limitation and Article 142

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

[This is a guest post by Rohan Deshpande.]


On March 23, 2020, a three judge bench of the Supreme Court presided by the Chief Justice of India in a suo moto writ petition sought to take cognizance of challenges faced by litigants in filing legal proceedings within limitation during the coronavirus pandemic. The Court was pleased to exercise its powers under Article 142 read with Article 141 of the Constitution and passed an order (“Order”) stating that:

“[the] period of limitation in all such proceedings [before courts / tribunals including the Supreme Court], irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.”

This direction continues to be in force, and through subsequent orders (here and here), has been specifically extended to other enactments such as the Arbitration and Conciliation Act, 1996, and the Negotiable Instruments Act, 1881.

Article 142 and its scope

Article 142(1) of the Constitution empowers the Supreme Court to pass such order “as is necessary for doing complete justice in any cause or matter pending before it”, and any order so passed is stated to be enforceable throughout India, while Article 141 states that the law declared by the Supreme Court is binding on all courts within India. The jurisdiction to pass the Order can thus be traced to Article 142(1).

Article 142 was draft article 118, and was adopted without debate by the Constituent Assembly on May 27, 1949. Thereafter, the following Constitution Bench decisions have attempted to answer the vexed question surrounding the scope and extent of the Supreme Court’s power under Article 142 – Prem Chand Garg v. Excise Commissioner, U.P., Allahabad(1962), A.R. Antulay v. R.S. Nayak (1988), Union Carbide Corpn. v. Union of India (1991) and Supreme Court Bar Assn. v. Union of India(1998). All except Antulay (seven judge bench) were decisions by five judge benches.

In Prem Chand Garg, a majority of four judges of the Supreme Court held that the powers under Article 142(1) were indeed wide, but an order to do ‘complete justice’ under this provision, “must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.” These observations were made while holding that a rule, requiring furnishing of security for costs by the petitioner in a petition under Article 32 of the Constitution, was invalid.

The above finding was adopted by a majority of five (expressed through different opinions) in Antulay’s case to hold that a direction given by the Supreme Court to transfer cases from the Court of Special Judge, Greater Bombay to a sitting judge of the Bombay High Court was violative of the relevant statutory scheme (Criminal Law Amendment Act, 1952) read with Articles 14 and 21 of the Constitution, and could not have been passed.

However, in Union Carbide, the bench of five unanimously observed (with Ahmadi, J. dissenting on a separate issue) that it was “necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution”, and proceeded to hold that observations in both Prem Chand Garg and Antulay on the effect of inconsistency with statutory provisions were “unnecessary” as these cases ultimately turned on breach of constitutional rights. Deviating from existing law and upholding the compensation of US $470 million payable by Union Carbide to the Union of India to settle claims and liabilities of those affected by the Bhopal gas leak, the bench held that:

“The power under Article 142 is at an entirely different level and of a different quality. 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 account the nature and status of the authority or the court on which conferment of powers — limited in some appropriate way — is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy.” (emphasis added)

And further, that it would be:

“… wholly 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 statement emphasised above thus sought to confer unfettered jurisdiction under Article 142 without regard to the relevant statutory scheme, by distinguishing the applicability of Prem Chand Garg and Antulay. This was even recognised by the incumbent Attorney General for India, as the Supreme Court placing itself “above the laws made by Parliament or the legislatures of the States”.

Subsequently, in Supreme Court Bar Assn., the Supreme Court unanimously sought to declare that the aforesaid findings in Union Carbide were not in conflict with either Prem Chand Garg or Antulay. The Court deemed that Union Carbide nowhere said, expressly or impliedly, that substantive statutory provisions expressly dealing with the subject can be ignored while exercising powers under Article 142. Rather, the statement from the decision in Union Carbide that the Supreme Court “will take note of the express prohibitions in any substantive statutory provision … and regulate the exercise of its power and discretion accordingly” was interpreted as an indication to the contrary.

The powers under Article 142 of the Constitute were held to be supplementary in nature; not those which could be used to “supplant” the applicable substantive law, as constitutional powers were not meant to be exercised when such exercise came in directly conflict with express statutory provisions in a statute expressly dealing with the subject. And it was held that Article 142, “even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly.” Thus, while dealing with contempt proceedings, suspension of a contemnor advocate’s right to practice – statutorily exercised only by the Bar Council – was held to be impermissible in exercise of jurisdiction under Article 142.

It is evident that these findings, iterated by a bench of equivalent strength, are prima facie inconsistent and whittle down the breadth of Union Carbide. Notably, the Court in Supreme Court Bar Assn. did not opine either way as to whether the bench in Union Carbide was justified in holding that the observations in context of statutory provisions and Article 142, as set out in Prem Chand Garg and Antulay,were unnecessary.

Despite such inconsistency between Union Carbide and Supreme Court Bar Assn.,the Supreme Court has followed the declaration / clarification of law in Supreme Court Bar Assn. in context of powers under Article 142 in various subsequent cases (of lesser bench strength). These include the division bench decision in A.B. Bhaskara Rao v. CBI (2011), wherein a catena of cases decided after Supreme Court Bar Assn. were referred (in addition to Prem Chand Garg), all reiterating that Article 142 cannot be exercised so as to negate statutory provisions. The Court summarised various principles applicable to Article 142 on the lines of these decisions, and held that the said provision could not be used to waive or impose lesser sentence than the minimum prescribed by statute.

Analysis of the Order

Through the Order, the Supreme Court has attempted to extend the limitation in all legal proceedings under general or special law, and this is stated to be irrespective of the period prescribed under these laws and without regard to the same being condonable. However, in context of the aforesaid decisions, particularly in Supreme Court Bar Assn. and beyond, it may be noted that various special statutes provide for filing of pleadings or initiation of proceedings within specified periods of limitation, and not beyond.

Illustratively, the provisions of Section 16 of the Commercial Courts Act, 2015 read with the amendments to Orders V and VIII of the Code of Civil Procedure, 1908 (forfeiture of right to file written statement in a commercial suit if not filed within one hundred and twenty days from service of the writ of summons) and Sections 61 of the Insolvency and Bankruptcy Code, 2016 (filing of first appeal before the National Company Law Appellate Tribunal within thirty days, condonable up to a period not exceeding fifteen days) can be referred. In context of both these provisions, it has been held by the Supreme Court (here and here, respectively) that there is no power to condone further delay. Even under the general law, viz., the Limitation Act, 1963, delay in institution of a suit or original proceeding cannot be extended under Section 5 of the Act, which applies only to appeals and applications.

Thus, in passing the Order, the Supreme Court has attempted to derogate from express statutory provisions by taking shelter of Article 142 of the Constitution – which has been held, as above, to be impermissible as being beyond the confines of Article 142. In fact, in context of special statutes and time period for filing of appeals, the Order is contrary to another three judge bench decision of the Supreme Court in ONGC v. Gujarat Energy Transmission Corpn. Ltd.(2017), where the Court followed Supreme Court Bar Assn. and concluded with reference to Section 125 of the Electricity Act, 2003 and Article 142 that,

“… when there is a statutory command by the legislation as regards limitation and there is the postulate that delay can be condoned for a further period not exceeding sixty days, needless to say, it is based on certain underlined, fundamental, general issues of public policy as has been held in Union Carbide Corpn. case … the prescription of limitation in a case of present nature, when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it is uncondonable and it cannot be condoned taking recourse to Article 142 of the Constitution.”

Prescription of specified, non-condonable periods of limitation has thus been held to be a public policy consideration on part of the legislature. And in doing ‘complete justice’ under Article 142, the Court will have to take note of express prohibitions, deemed to be based on public policy, in filing pleadings belatedly or condoning delay, and accordingly exercise its power and discretion.

Moreover, it has been held in Nidhi Kaim v. State of M.P. (2017) by another three judge bench of the Supreme Court, after expressing its “unequivocal concurrence” with the judgement in Supreme Court Bar Assn., that the power to do ‘complete justice’ under Article 142 of the Constitute does not include the power to disregard statutory provisions, or declared pronouncements of law under Article 141 of the Constitution, and that this applies “even in exceptional circumstances.”

Keeping in mind these decisions, the validity of the Order is cast in doubt, and the final order to be passed in the petition must deal with these questions. It may be appropriate to finally resolve the inconsistency between Union Carbide and Supreme Court Bar Assn., surrounding the true nature and purport of Article 142, by referring the matter to a larger bench.

Additionally, one possible argument in aid of the Order being valid, without seeking to expand the scope of Article 142 (which has rightly been confined to an exercise of power supplementary to extant statutory provisions) would be that the situation prevalent during the coronavirus pandemic could not have been envisaged by the legislature when framing policies as to stringent limitation periods.

It can therefore be suggested that the Order as passed amounts to reading down of statutory requirements and is not in contravention of statute or public policy, as a contrary construction which suggests that litigants should be compelled to adhere to limitation periods and file pleadings during the coronavirus pandemic would render the statute arbitrary and unreasonable. Although Nidhi Kaim follows Supreme Court Bar Assn., the below observations therefrom can be gainfully referred to support this view:

“Legislation, always flows from reason and logic. Debates and deliberations in Parliament, leading to a valid legislation, represent the will of the majority. … Any legislation which does not satisfy the above parameters would per se be arbitrary, and would be open to being declared as constitutionally invalid. In such a situation, the legislation itself would be struck down. It is difficult to visualise a situation wherein a valid legislation would render injustice to the parties, or would lead to a situation of incomplete justice — for one or the other party.” (emphasis added)

Another aspect which is debatable is the propriety of initiating suo moto proceedings essentially for the purpose of extending limitation, when Article 142 states that the Supreme Court may pass orders in “any cause or matter pending before it”. The vesting of jurisdiction to pass orders in a “cause or matter pending before” the Supreme Court is completely sidestepped if suo moto proceedings are taken to be within contemplation of this phase.


The situation resulting from the coronavirus pandemic is indeed unprecedented. Most courts and tribunals across the country continue to remain closed for physical conduction of business, or have adopted diminished modes of functioning. The Order passed by the Supreme Court extending limitation is well-intended, but significant questions surrounding its validity and the bounds of Article 142 remain to be answered. In finally deciding the suo moto petition, the Supreme Court must be mindful of the words of Farewell, L.J. in Latham v. Richard Johnson & Nephew Ltd. [(1911-13) All E.R. 117], as adopted in context of Article 142 itself in Teri Oat Estates (P) Ltd. v. UT, Chandigarh, viz., “Sentiment is a dangerous will o’ the wisp to take as a guide in the search for legal principles.”

Undoubtedly, acts of legislature or appropriate ordinances (at the central and the state level) can achieve the self-same outcome as the Order without any of the hurdles outlined above. Illustratively, a brief enactment can be envisaged, providing for extension of limitation with reference to special laws, which laws can be listed in a schedule to the enactment. However, this will have to be done proactively so as to obviate the immediate difficulties of litigants.

[The author thanks Mihir Naniwadekar for his comments on a draft version of this post.]

The Supreme Court on Mandatory Voice Samples – II: The Rise of the Executive Court

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

In the previous post, Abhinav Sekhri highlighted some of the flaws with the Supreme Court’s judgment on the mandatory taking of voice samples from an accused party. In this post, I want to build upon Sekhri’s arguments, and make two further points.

To start with, in order to prevent misunderstanding, let us get a few basic points out of the way. The debate before the Court wasn’t so much about whether the compelled taking of voice samples would violate the guarantee against self-incrimination under Article 20(3) of the Constitution. The two disagreeing judges who referred the case to this three-judge bench did not disagree on that point, and most of the High Courts did not either. After Kathi Kalu, indeed, it would be difficult (although not impossible) to argue that the taking of voice samples is hit by the Article 20(3) bar.

Nor was the case about whether compelled voice samples violated the fundamental right to privacy. After Puttaswamy, this would be an interesting legal question to analyse, but it was not the question that the Court was called upon to answer. No: what the case was about was whether there existed a statutory basis upon which voice samples could be taken without consent. It was this question that the Court answered in the negative, and then went on to “fill the gap” by using Article 142, and allowing for it anyway.

Why does this matter? It matters because this background is key to understanding just how flawed – and how dangerous – paragraph 24 of the Court’s judgment is. Paragraph 24 states:

Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under Article 20(3) of the Constitution, is the next question. The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College and Research Centre and others vs. State of Madhya Pradesh and others, Gobind vs. State of Madhya Pradesh and another and the Nine Judge’s Bench of this Court in K.S. Puttaswamy and another vs. Union of India and others the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us.

There is a lot to unpack in this paragraph. The first thing to note is that this is a rank sleight of hand. The reason why Puttaswamy and privacy was not raised before the Court was that there was no reason for it to be raised! As I mentioned above, the questions before the 2012 Bench – where the two judges disagreed – were two-fold: whether the taking of voice samples was hit by the Article 20(3) bar, and if not, whether it was affirmatively authorised by any provision in the Code of Criminal Procedure. The two judges agreed that 20(3) did not apply, and disagreed on whether statute applied. Now, if the Supreme Court intended to override the absence of statutory authorisation by invoking Article 142, it would have to – necessarily – examine first whether there existed any other statutory or constitutional bar that would prevent it from doing so (because recall that Article 142 cannot be applied contrary to statute or the Constitution). In other words, therefore, in applying Article 142, the Court could not simply dodge the privacy question by saying that it was “not specifically raised before us.” That excuse went out of the window the moment Article 142 came in through the back door.

In other words, the Court would have it both ways. Expand the scope of the case, of its own accord, to issues that were never in the frame, and then dodge an examination of those issues by claiming they were never argued. The only possible reaction to this sleight of hand begins at 30 seconds of this video:

Consequently, it was not enough for the Court to give us the boilerplate phrase of “privacy is not absolute and must bow down to compelling public interest.” Nobody has ever made the claim that privacy is “absolute”, and the Court gets no brownie points for tearing down that little straw-man for the umpteenth time.

But there is a deeper problem with paragraph 24, which would preclude the above discussion from even happening in the first place. And that is – as Sekhri pointed out in his post – the established position that the word “law” under Articles 19 and 21 does not include judicial orders. This point has been discussed at some length before, and I summarise it here: our constitutional scheme envisages a two-step process before an infringement of rights can be justified. First, there must exist State-enacted law that, prima facie, is found to infringe a right. And secondly, upon a challenge, a Court must review that law to check whether it is a reasonable restriction upon the fundamental right – and strike it down, if not. The point of this two-step process is to ensure that rights are adequately safeguarded, and that the supreme deliberative and elected body – Parliament – must take the first decision in that regard. For very good reason, therefore, the Constitution does not grant power to the Courts to infringe rights of their own accord.

The implication of this, therefore, is that it was not for the Court to say that privacy was not absolute, and would have to bow down to compelling public interest. That analysis, in the first instance, would be Parliament’s to make when deciding whether or not to amend the CrPC – and for the Court to review if Parliament’s assessment was challenged. The moment that it was found that the use of Article 142 would prima facie violate privacy – which it undoubtedly does – there was no question of the Court using Article 142 powers. That – as Sekhri pointed out – is the lesson of Kharak Singh and every other case after it, until Rupa Ashok Hurra.

This brings me to my second, broader point. The Supreme Court’s judgment reflects perhaps most starkly a phenomenon that we can label as the “Executive Court.” What began as the Supreme Court stepping in to fill a vacuum left by an inactive Executive, is now transforming into the Supreme Court becoming indistinguishable from the Executive. Instead of the rule of law, protection of rights, precedent, the separation of powers, and judicial reasoning (all hallmarks of a constitutional court) guiding its decisions, the executive logic of an undefined, larger “public interest” (that only the Court knows), which is to be achieved by tossing aside all other constraints that may stand in the way, has come to dominate important cases (the NRC is perhaps the starkest example of this). So: Parliament has made no provision for the taking of voice samples, and without Parliament’s approval, executive agencies cannot act? No problem – the Court will step in and sanctify those actions judicially. This, for obvious reasons, is dangerous in many respects.

In the present case, this is revealed most starkly by the Court’s repeated invocation of the mantra, “procedure should be the handmaiden of justice.” As Sekhri pointed out in his post, this is yet another sleight of hand: the Court effectively borrowed this phrase from the context of civil litigation – conducted between parties of equal standing – and applied it to criminal litigation, where procedural safeguards are literally all that stand between the individual and the unchecked might of the State. The fact that the Court viewed procedural safeguards as impediments to achieving “true justice” is the clearest statement yet of how indistinguishable it seems to have become from the Executive.

Perhaps the Court should have dug a little deeper into its own history. Had it done so, it would have found another, telling quote: “the history of personal liberty,” wrote a certain Justice Hans Raj Khanna, in a certain well-known dissent, “is largely the history of insistence upon procedure.”

Guest Post: The Supreme Court on mandatory voice samples – I: Some glaring conceptual errors

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

(This is a guest post by Abhinav Sekhri, the first in a two-part series. On 2nd of August, a three-judge bench of the Supreme Court decided the case of Ritesh Sinha v State of UP, dealing with the question of whether an accused could be compelled to provide voice samples during the course of a criminal investigation. The issue had divided many High Courts – some of which had returned detailed judgments – and had also divided a two-judge bench of the Supreme Court, where the judges had disagreed whether the Code of Criminal Procedure authorised this form of compulsion. The three-judge bench was called upon to resolve the issue. The Bench found that there was no statutory authorisation for the process; but it then noted that “procedure was the handmaiden of justice”, and decided to “fill in the gap” by invoking its powers under Article 142 of the Constitution to do “complete justice”, and authorised Magistrates to demand voice samples anyway.)

“In the light of the above discussions, we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. We order accordingly and consequently dispose the appeals in terms of the above.”

This decision by a three-judge Bench of the Supreme Court in Ritesh Sinha v. State of U.P. [Crl. Appeal 2003 of 2012, decided on 02.08.2019 (“Ritesh Sinha”)], is the latest iteration of the Court using its extraordinary powers under Article 142 for “doing complete justice”. This time, “complete justice” has been done by (i) ignoring elementary differences between civil and criminal procedure; (ii) creating new law without any modicum of precision or clarity, and; (iii) by ignoring past precedent on using Article 142 itself, with the Court choosing, of its own volition, to give the law a course that necessarily infringes fundamental rights. 

These features have adorned previous decisions of the Supreme Court as well. But very rarely do we get an example of all three working together with such destructive potency, as it has been done in Ritesh Sinha to achieve the result mentioned at the outset of this post.

Civil v. Criminal Procedure   

Throughout Ritesh Sinha, the Court is at pains to remind us that procedural law mustn’t become a thorn in the side of substantive justice — instead, procedural law must serve its role as the “handmaiden” of justice. The opinion turns to old cases, as if to suggest that its views are hardly new but rather a reflection of time-honoured tradition. But this is a ruse, dear reader: By relying upon the distracting prose of prior precedent, Ritesh Sinha tries to throw sand in your eyes. 

Why? Because all of those flowery words are germane to the context of civil litigation. Here, the idea of procedural law is to help ensure litigation places parties on an equal footing for the Court to do justice. It does so by removing privilege and secrecy, bringing before the Court all possible material and giving both sides equal opportunities to advance their case. Therefore, when there are doubts about what course procedural law should take, the answer is clear: take the path that helps the litigation to proceed.

If civil procedure is planet Earth, then criminal procedure is the moon. Police investigations are, by definition, not a situation with two equal players. Till the time a case is under investigation, the police hold all the cards. If it is a cognizable case, then the police can go and arrest anyone, question anyone, practically conduct searches anywhere, to gather material. And there is no duty to share this material with the subject of a future prosecution: an accused person does not even have the right to get a copy of the FIR registered against her.

Procedural law is not a handmaiden of justice in this context: it is the only sword and shield in the hands of an ordinary person to resist the truly awesome might of the State. It is the only rope I can cling onto for securing some measure of restraint against the State when it proceeds down the brutally invasive path of a criminal investigation. It is, also, the golden thread that protects an individual from being condemned unfairly to a conviction and the badge of guilt and shame that it must carry.

But in its earnest efforts at “doing complete justice”, the Supreme Court seems to have ignored these differences. If not, then the Court seems to have imagined a different criminal justice system from the one that most ordinary Indians are subject to. Perhaps it would help if rather than only quote prior precedent, the Court resume past practices of actively engaging with the various facets of the criminal justice system by doing surprise inspections at prisons and police stations. Maybe then the Court might see the police practices that coerce an innocent person to implicate herself falsely just to end the brutal harassment of interrogation. 

Where is the Law?

Ritesh Sinha is not the first or the last time that the Court decides to “fill the gaps” and create law rather than wait for Parliament to do its job. But, if you are deciding to deal another hammer blow to the system of the separation of powers and create law, you might at least do a decent job of it. Previous instances have included detailed guidelines being passed in Vishaka, as well as a fully detailed draft legislation being blessed in Prakash Singh; so one would expect that the Court create judicial legislation with some measure of precision.

Sadly, that doesn’t happen. The paragraph quoted at the outset is all we have by way of a law. Rather than pen a paragraph with the many gaps left behind by the Court in its effort to plug a single one, below is an illustrative list of questions, based on all that is left unclear:

  • What kind of Judicial Magistrate is conferred the power?
  • Is the Court acknowledging that no existing provision in the Cr.P.C. could confer this power on Magistrates?
  • Will a Magistrate / Sessions court not have the power to compel persons to give voice samples during trial? (since the judgment specifies investigation)
  • Who will take the sample? Must it be before officials of the Forensic Science Laboratory or can the Investigating Officer take samples? Or will they be taken before Court?
  • Is custody a necessary requirement for taking voice samples? 
  • What kind of questions can be asked during this process? Will earlier guidelines offered by the Court in the Zee extortion case be valid?

None of these questions are immaterial, and all of them are bound to start coming up sooner or later before courts, to clog our system with more cases and contribute to rising delays. That is the cost of “doing complete justice”, and not waiting for Parliament to do its job.

Atlas, Shrugged?

The premise behind the title of Ayn Rand’s famous novel was simple: Atlas, the Greek Titan, is supposedly keeping the Earth aloft on his shoulders; so what happens if Atlas shrugged? Apply this in context of the Indian Constitution and the fundamental rights of citizens, and we find that the Supreme Court has been placed in the role of Atlas. It bears the brunt of our crazy system on its shoulders, to ensure that the fundamental rights of persons are protected as the cogs of this machine keep ticking. Ritesh Sinha seems to suggest that our Atlas has shrugged, and it is perhaps time to start rethinking our approach to protect fundamental rights in the Indian polity.

The signs had come at least a decade ago, when the Court used Article 142 in Shahid Balwa [(2014) 2 SCC 687)] to go ahead and completely remove the constitutional right of appeal under Article 226 of persons who had been embroiled in the “2G Scam” cases. On that occasion, this removal of right was justified on a balancing logic, keeping in mind the overwhelming public interest in a quick prosecution (but it still took almost a decade to complete the trial, which ended in acquittals). This resurfaced in the “Coal Scam” cases, where again the same tactic was used and justified away. 

What makes Ritesh Sinha different, is that while the “2G Scam” and “Coal Scam” orders also involved a clear derogation of rights, this was limited to a particular class of cases. This time around, the criminal procedure code itself stands amended by the Court through Article 142, in spite of having noted the possible derogation of fundamental rights that this involved: because in paragraph 24 of Ritesh Sinha, the Court concedes how, at least at the threshold level, its decision can infringe the fundamental right to privacy.

Now at this point, the Court was bound to follow prior precedent set by a Constitution Bench in Prem Chand Garg [AIR 1963 SC 996], where it was held that Article 142 cannot be used to pass any orders inconsistent with fundamental rights. But there is no mention of Prem Shankar Shukla in the judgment. Instead, after noting how the fundamental right to privacy can be infringed, the Court in Ritesh Sinha justifies the derogation on grounds of “compelling public interest.”

Even if you disagree with the idea of precedent and that the sound restraint advised in Prem Chand Garg should not be controlling subsequent benches, the Court’s attempt in Ritesh Sinha to justify derogations from the fundamental right to privacy is flawed at a very basic level. In the haste to limit the fundamental right, the Court somehow forgets that such restraints must be through procedure established by law, and that judicial orders do not fall within the definition of “law” for this purpose. It is painfully ironic that the one privacy decision that ignored the Court’s attention in Paragraph 24, i.e. Kharak Singh, saw this issue being discussed at some length.

Conclusion: History Repeats Itself

In August 1961, an Eleven Justices’ Bench of the Supreme Court delivered separate opinions in State of Bombay v. Kathi Kalu Oghad [(1962) 3 SCR 10]. In Oghad as well, the Court chose to limit a fundamental right [Article 20(3)] by operating on unrealistic presumptions about criminal investigations involving an exchange between equal participants. 

In August 2019, nearly sixty years later, the Supreme Court has made the same mistake. As I have argued recently, some reasons behind the outcome in Oghad were probably the peculiar politics of 1961 — police reform was considered imminent, emboldening the Court to show more faith in the police by allowing it more investigative leeway. Maybe the only way to make sense of the judgment in Ritesh Sinha is also by turning to the peculiar politics of our time, and removing naive notions of the Court being a counter-majoritarian protector of our civil rights.  

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.


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)

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.”

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.