A Bench of Justices Altamas Kabir and S S Nijjar differed and gave a split decision on the maintainability of the application filed by the Centre to recall the order passed by the Supreme Court on July 4.
The Bench, consequently, referred the matter to the Chief Justice to constitute a larger bench to decide on the issue.
In the order, Justice Kabir said: “In view of the inherent powers vested in the Supreme Court of India, preserved in Order 47 Rule 6 of the Supreme Court Rules, 1966, and having regard to the fact that the Supreme Court is the guardian of the Constitution, interim application, even in its present form is maintainable in the facts and circumstances of the case, which include threats to the security of the country.”
However, Justice Nijjar, who was part of the bench, that had passed the order for setting up of the SIT to probe black money cases, dismissed the application differing with Justice Kabir.
“In my opinion, the application seeks to reopen the whole matter on merits which would not be permissible in an application for modification.
Therefore, in my opinion, the application deserves to be dismissed at the threshold.”
“I am of the considered opinion that the present application would be an abuse of the process of the Court as it seeks to camouflage an application for Review as an application for modification. In my opinion, such a course ought not to be encouraged,” Justice Nijjar said.
Saying that the Centre has failed to make out a case to enable the court to treat the modification application as application for review, he said, the present application is “wholly misconceived.”
Senior jurist Ram Jethmalani and others had filed a PIL in the apex court seeking direction to bring back the black money parked by a few Indian in foreign banks.
A bench of Justices B Sudarshan Reddy (since retired) and Nijjar had on July re-named the high-level committee, already formed by the Centre on May 27 to look into the issue of black money as SIT.
It had also directed for appointment of former apex court judges Justices B P Jeevan Reddy and M B Shah as its chairman and vice-chairman respectively.
In its application, the Centre maintained that the court has impinged upon the domain entrusted to the executive in the order which 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 to take over itself the task entrusted to the executive.”
The petitioners challenged the Centre’s plea saying it can file review petition and cannot seek recall of the order.
