By Sushil Kumar Jain
The Union government has filed a review petition in the Supreme Court against its order in Ram Jethmalani’s case by which it created a Special Investigation Team (SIT) to probe the black money. The government has averred, “The order completely eliminated the role and denuded the constitutional responsibility of the executive which itself is answerable to parliament…It is contrary to the settled legal principle that the function of the court is to see that the lawful authority is duly exercised by the executive, but not take over itself the tasks entrusted to the executive.”
It is for the first time that the court has taken over investigation by appointing a former judge of the Supreme Court as the chairman of the SIT and another former judge of the same court as the vice-chairman. The Union government had appointed a high level committee comprising revenue secretary; deputy governor, RBI; Directors, IB, CBI, (financial intelligence unit) and ED; chairman, CBDT and DGs, Narcotics Control Bureau and Revenue Intelligence. The Supreme Court added three more members to it-two former judges and Director, RAW-and rechristened it as SIT.
Even now the investigation will be done by the police, but what is unprecedented is that the SIT will report to a former judge. Under the CrPc., the court cannot take over investigation though it can appoint any one to investigate impartially to its satisfaction.
Earlier the courts have monitored investigation as in the fodder scam and hawala cases but the investigation was not carried on under the chairmanship of a judge.
The judgement does not explain anywhere how and why the inclusion of two retired judges will improve the investigation. The only justification given is that the court does not have time to monitor, so two judges have been put there. In another case, Nandini Sundar- vs- Chhattisgarh, the apex court declared the appointment of special police officers (SPO) under the policy of arming of a civilian vigilante group, the Salwa Judum. In both these cases, the court has lambasted the neo-liberal economic policy of the government and held it responsible for the growth of black money and invidious inequality which has led to the menace of Maoism. Thus, the apex court has entered into political thicket which it is not mandated to do. Both judgments were delivered by Justices B. Sudarshan Reddy and Surinder Singh Nijjar.
The magniloquent rhetorical narrative against the neo-liberal policy makes a fascinating reading and it is difficult to remain unimpressed by the erudition of the judges. It is, nonetheless, not the judge’s job to decide policy matters unless the policy itself is arbitrary or discriminatory.
Both judgments are replete with condemnation of the state’s “amoral” economic policies in florid language. The question is: Are judges competent to do it? Chief Justice of India S. H. Kapadia, while delivering the Motilal Setalvad Memorial Lecture, diagnosed the disease properly and cautioned his colleagues against breaching the doctrine of separation of powers: “We do not have the competence to make policy choices and run the administration…Under the doctrine of separation of powers, each of the above organs must stay within the powers allocated by the constitution.”
Justice Kapadia rightly raised the issue of accountability. In America, judges are chosen on ideological grounds by the presidents who are grilled by the Senate live on television. Thus, people know the ideological commitments of the person going to be appointed judge of the Supreme Court. Still, they tenaciously stick to the constitution.
In India, judges are apolitical and they have to interpret laws strictly within the mandate of the constitution. In the black money order, the court has clearly overstepped on the ground of protecting the fundamental right to equality (Article 14) and the right to life and personal liberty (Article 21). Law’s hands are long and some kind of amorphous connection can always be established with these rights to justify judicial intervention.
The black money order has rightly questioned why the investigation was proceeding slowly. Even the custodial interrogation of Hasan Ali had not been sought for even though he was very much staying in India. Again, it has rightly pointed out that in 2007, the RBI had obtained some “knowledge of the dubious character” of UBS Security India private limited, a branch of UBS, a bank of Switzerland where a substantial amount of black money is deposited, and consequently stopped its takeover of Standard Chartered Mutual Funds business in India.
It had applied for permission for retail banking in India. In 2008, the licence was withheld on the ground that “investigation of its unsavoury role in the Hasan Ali Khan case was pending investigation with the enforcement directorate”. However, the RBI reversed its decision in 2009 without giving any cogent reason. Similarly, in the Salwa Judum case, the court could have declared it unconstitutional on the single ground that protecting the citizens is the duty of the State which cannot be outsourced instead of haranguing on how to fight with Maoism.
The doctrine of separation of powers is embedded in our constitutional scheme. Explaining the need for separation of powers, Montesquieu wrote: “There is no liberty where judicial power is not separated from both legislative and executive power. If judicial and legislative powers are not separated, power over the life and liberty of citizens would be arbitrary, because the judge would also be a legislator. If it were not separated from executive power, the judge would have the strength of an oppressor…” INAV