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New Delhi: A Supreme
Court bench was Friday divided on the maintainability of the
central government's application for recall of a July 4 apex court
judgment setting up a Special Investigation Team (SIT) to probe
black money. The bench has referred the issue to Chief Justice S.H.
Kapadia.
The matter was referred following a split verdict between Justice
Altamas Kabir and Justice S.S. Nijjar on the question of
maintainability of the centre's application that has sought the
recall of the apex court's order setting up SIT to investigate
laundering of ill-gotten money parked in tax havens.
The court said that since "we have differed in our views regarding
the maintainability" of the centre's application on the recall of
July 4, 2011, judgment and order, let the matter be placed before
the Chief Justice of India, for reference to a third Judge. The
judgment and order sought to be recalled were pronounced by
Justice B. Sudarshan Reddy (since retired) and Justice S.S.Nijjar.
Upholding maintainability of the government's application, Justice
Kabir said that in view of the inherent powers vested in the
Supreme Court and it being the guardian of the constitution, the
application, "even in its present form is maintainable in the
facts and circumstances of the case, which includes threat to the
security of the country."
Justice Kabir added that "even if the present application was to
be dismissed as being not maintainable under Article 142 of the
Constitution read with Order 47 Rule 6 of the Supreme Court Rules,
1966, it would not preclude the Applicants from filing an
application for review under Article 137 of the Constitution."
"In my opinion, the aforesaid observations would not be applicable
in the facts and circumstances of the present case. The
application herein is not moved by an individual, who had been
deprived of his fundamental rights by an order dated 4th July,
2011. The application is filed by the Union of India challenging
the order on various legal and factual issues."
Differing with him, Justice Nijjar said that it would not be
possible for him to agree with the order passed by Justice Kabir.
He said that "in the present case (July 4, 2011), the directions
had been issued after hearing the learned counsel for the parties
at length and on numerous dates. These directions, in my opinion,
cannot be recalled as an application seeking only modification of
the order."
"In my opinion, the applicant Union of India has failed to make
out a case to enable this court to treat the modification
application as application for review and proceed to hear the same
in open court," Justice Nijjar said.
"At this stage, it would also not be possible to treat the present
application for modification as an application for review."
Having said that, Justice Nijjar said, "In my opinion, the present
application is wholly misconceived. It is, therefore, dismissed.
Union of India is, however, at liberty to take recourse to any
other legal remedy that may be available to it."
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