VINEET NARAIN AND ORS. v. UNION OF INDIA AND ANR.

VINEET NARAIN AND ORS. A v. UNION OF INDIA AND ANR.

DECEMBER 18, 1997

B

Delhi Special Police Establishment Act, 1946, Ss. 3, 4( 1)-Single Direc- tive No. 4. 7(3 )-Powers of investigation of the Central Bureau of Investigation (CBI)-Requirement of prior sanction of Secretary of concerned Ministry before any enquiry is instituted against officials at decision-making levels of govemment-Validity of-Held, Single Directive strnck down as not valid-Not pennissible as exercise of power of superintendence of Central Govemment under s.4(1) DSPE Act-Fwther held, power of CBI to investigate offences cannot be cwtailed by executive instmction-Police Act 1861, s.3.

Constitution of India, Articles 14, 32, 141, 142 and 144--lssuing guidelines and consequential directions-Justification f 01~Held, where there is inaction by executive to issue orders to fill vacuum in legislation, judiciary must step in to provide solution till such time legislature acts-Guildelines and Directions having force of law issued. E Public Interest Litigation---Co11stitutio11 of India A1ticles 32, 142--Con- tirming mandamus-Concept explained-Practice and Procedure.

Practice and Procedure-In camera proceedings-Need for--Ex- plai11ed-Constitutio11 of India, Articles 32, 142. F l11te1pretation of Statutes-Hannonious const111ction-'Supe1intend- e11ce' in s.4( 1) DSPE Act, 1946 cannot be constrned in wider sense to pennit supe1vision of CBI's investigation contlary to manner provided by statutory provisions-Words and Phrases.

Conse11nent upon the arrest in 1991 of AHL, alleged to belong to a G terrorist organization, raids were conducted by the Central Bureau of Investigation (CBI) on the premises of SKJ, his brothers, relations and businesses. Along with Indian and foreign currency, the CBI seized two diaries ('Jain Diaries') and tw'l notebooks which contained detailed ac- counts of vast payments made tu persons identified only by initials. H 595

p. 596

A The initials corresponded to those of various high ranking politicians, in power anid out of power, and of' high ranking bureaucrats.

The present writ petitions were filed in October, 1993, in the public interest under Article :32 of the Constitution of India alleging that the government agencies like the CBI and the revenue authorities had failed to perform their legal obligation to investigate the matters arising out of the seizure of the Jain Diaries; that the apprehension of terrorists had led to the discovery of financial support to them by clandestine and illegal means using tainted funds obtained through 'havala' transaction; that this had also disclosed a nexus between 1101iticians, bureaucrats and criminals, who were recipients of money from unlawful sources, given for unlawful consideration; that the failure to investigate was with a view to protect the persons involved, who were very inlluential and powerful; that the rule of law required that the government agencies be compelled to proceed in accordance with law against every person involved, irrespective of where he was placed in the poliLtical hierarchy.

This Court passed a series of orders, through the device of 'continu- ing mandamus', monitoring the investigation of the case by the CBI. This resulted' in the filing of 34 chargesheets against 54 persons. E In its report submitted to the Central Government in October, 1993 the Vohra Committee painted a dismal picture of the powerful nexus between the bureaucracy and politicians with the mafia gangs, smugglers and the underworld. It rrecommended the setting up of a nodal agency under the Ministry of Home Affairs for compilation of all information F received from the agencies.

In September, 1997 the Central Government appointed an Inde- pendent Review Committee (IRC) which reaffirmed the need to restructure the agencies with a view to improving their hitherto unsatisfactory perfor- G mance. The IRC made several recommendations including conferring statutory status on the Central Vigilance Commission (CVC). However, the IRC accepted the legality af the Single Directive No. 4.7(3) whereunder prior sanction of the Secretary to the concerned ministry had to be obtained before instituting an enquiry or search against officials at the decision-making level of government.

VINEETv. U.O.l. 597

The Union of India informed this Court that although there was no negative reaction to tlle report of the IRC, further action could not be taken due to certain practical difliculties. This Court then examined the constitution and control of the agencies, including the validity of the Single Directive, and the need to frame a scheme to insulate them from ex- traneous influences, even of the controlling executive. B Disposing of the petition, this Court

13. In the absence of any statutory requirement of prior permission or sanction for investigation, it could not be imposed as a condition precedent for investigation, once jurisdiction was conferred on the CBI to investigate the offence by virtue of the notification under s3 of the DSPE E Act. This could not be included within the meaning of "superintendence" in s.4(1). [638-F; 637-D]

K. Veeraswami v. Union of India, [1991] 3 SCC 655 and State of Bihar v. JA. C. Saldanha, [1980] 1 SCC 554, referred to. F 1.4. The powers of a Minister were subject to the condition that none of them would extend to permit the Minister to interfere with the course of investigation and prosecution in any individual case and in that respect • the concerned oflicers were to be governed entirely by the mandate of law and the statutory duty cast upon them. [630-G] G Union of India v. Sushi! Kumar Modi, [1997] 4 SCC 770, referred to.

2.1. It was the duty of the executive to fill the vacuum by executive orders because its field was coterminus with that of the legislature. Where there was inaction even by the executive, for whatever reason, it was H

598 SUPREME COURT REPORTS 11997] SUPP. 6 S.C.R.

A essential and indeed the constitutional obligation of this Court to issue the necessary directions for strict compliance which were to operate till such time they were replaced by suitable legislation. [641-C-D]

2.2. There were ample powers conferred by Article 32 read with Article 142 to make orders which had the effect of law by virtue of Article B 141 and there was a mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. [640-H]

Erach Sam Kanga v. Union of India, Writ Petition No. 2632 of (1978) decided on March 20, (1979); Lakshmi Kant Pandey v. Union of India (in C Re.Foreign Adoption), [1984] 2 SCC 244; State of West Bengal v. Sampat Lal, [1985] 2 SCR 256; K. Veeraswami v. Union of India, [1991] 3 StC 655; Union Carbide Cmporation v. Union of India, [1991] 4 SCC 584; Delhi Judicial Se1vice Association v. State of Gujarat (Nadiad Case), [1991] 4 SCC 406; Delhi Development Authmity v. Skipper Constmction Co. (P) Ltd., D [1996] 4 SCC 622, Dinesh Trivedi v. Union of India, [1997] 4 SCC 306; Supreme Cowt Advocates-on-Record Association v. Union of India (llnd Judges case), [1993] 4 SCC 441 and Vishaka v. State of Rajasthan, '[1997] 6 sec 2_41, referred to.

Lord Nolan's repmt [1995] Vol. I and R. v. Secretmy of State for E Foreign and Commonwealth Affai1:1-, (1995) 1 WLR 386, referred to.

3.1. The procedure adopted was nne of 'continuing mandamus'. The continuing inertia of the agencies to even commence a proper investigation could not be tolerated any longer. Mere issuance of a mandamus directing the agencies to perform tl!Jeir task would have heen futile.-This necessitated issuance of directions from time to time, keeping the matter pending and requiring the agencies to report the progress of investigation so that monitoring by the court could ensure continuance of the investigation. [604-B; E-F] 3.2. The task of the monitoring would end the moment a charge sheet was filed in respect of a particular investigation. The ordinary processes of the law would then take over. It was necessary to direct the CBI not to report the progress of t:he investigations to the person occupying the highest office in the political executive;. this was done to eliminate any impression of bias and to maintain the credibility of the investigations. H [603-H; 604-A]

VINEETv. U.0.1.[VERMA, CJ