It has been more than a year since matter was referred to three-judge Bench

The Supreme Court’s directions to the Centre in the ‘black money case,’ including for setting up a special investigation team to go into all issues, are to be examined by a three-judge Bench. Until a decision is rendered by the Bench, these directions will be put on hold, the government has said.

It has now been more than a year since the court gave a split verdict on the Centre’s application seeking recall of its order on black money and referred the matter for a fresh hearing by three judges.

Acting on petitions filed by the former Union Law Minister Ram Jethmalani and others, a Bench of Justices B. Sudershan Reddy (since retired) and S.S. Nijjar had on July 4, 2011 ordered constitution of the SIT headed by a retired Supreme Court judge B.P. Jeevan Reddy.

The court pulled up the Centre for not showing seriousness in bringing black money stashed away by Indians abroad. “The volume of alleged income taxes owed to the country, as demanded by the Union of India itself, and the volume of monies, by some accounts $8.04 billion, and some other accounts in excess of Rs. 70,000 crore, are said to have been routed through various bank accounts of Hassan Ali Khan and the Tapurias. Further, from all accounts, it has been acknowledged that none of the named individuals has any known and lawful sources for such huge quantities of monies.”

The court said: “All of these factors… ought to have immediately raised questions regarding the sources being unlawful activities, national security, and transfer of funds into India for other illegal activities, including acts against the state…. However, there is still no evidence of a really serious investigation… from the national security perspective.”

On July 15, 2011, the Centre filed an application for recall of the order stating it was passed without jurisdiction. “The order impinges upon the well settled principle that courts do not interfere with the Economic Policy which is in the domain of the Executive…” It also “impinges upon the principle that in matters of utilities, tax and economic policy, legislation and regulation cases, the court exercises judicial self-restraint if not judicial deference to the acts of the Executive…” The wide-ranging criticism of the state were uncalled for, the Centre said, adding the constitution of a SIT and the consequential directions could not be implemented.

In September last year, a Bench of Justices Altamas Kabir (now Chief Justice of India) and Nijjar gave a split verdict on the Centre’s application. Justice Kabir said: “Justice does not transcend all barriers and rules of procedure, nor technicalities can stand in its way, particularly if the implementation [of the July 4, 2011 order] would result in injustice. The Supreme Court had the inherent powers to correct injustice.”

Justice Nijjar, however, said: “In the present case, there is no question of mistaken facts, being presented by anyone to the court. The application also fails to indicate any miscarriage of justice or injustice which would be caused to any particular class.” The application, though described as one for modification, “is in substance more in the nature of an appeal. At best, it could be said to be in substance an application for review. It certainly does not lie within the very narrow limits within which this court would entertain an application for modification.” The directions, issued after hearing counsel for the parties at length and on numerous dates, could not be recalled on an application seeking only a modification of the order. “The application is dismissed,” said Justice Nijjar.

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