Standard of proof for determining corruption in election: Supreme Court

In a recently reported decision [AIR 2010 SC 905] the Supreme Court has reaffirmed the test relating to 'standard of proof' required to determine allegations of corrupt practices in elections. Declaring that an allegation of having indulged in corrupt practices in election is on the same footing as making an allegation of a criminal act having been done by a party, the standard of proof required to be adopted for determining the allegations of corruption was equivalent to one in criminal proceedings i.e. 'beyond reasonable doubt' and not one of civil procedure where the matter was one only of 'preponderance of probabilities'. 

The Supreme Court declared the law as under;

10. Before we proceed to examine the facts of the case to consider the question as to whether charges of corrupt practices were established against the appellant, we deem it necessary to reiterate that a charge of corrupt practice envisaged by the Act is to be equated with a criminal charge and the standard of proof thereof would not be preponderance of probabilities as in a civil action but proof beyond reasonable doubt as in a criminal trial. If this test is not applied, a very serious prejudice is likely to be caused to the successful candidate whose election would not only be set aside, he may also incur disqualification to contest an election for a certain period entailing even extinction of his political career. Undoubtedly, the onus lies heavily on the election petitioner to make out a strong case for setting aside an election.

11. In Ch. Razik Ram (supra), speaking for the Bench, Sarkaria, J. observed thus: 

“..It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus therefore, rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt. It is true that there is no difference between the general rules of evidence in civil and criminal cases, and the definition of "proved" in Section 3 of the Evidence Act does not draw a distinction between civil and criminal cases. Nor does this definition insist on perfect proof because absolute certainty amounting to demonstration is rarely to be had in the affairs of life. Nevertheless, the standard of measuring proof prescribed by the definition, is that of a person of prudence and practical good sense. ‘Proof’ means the effect of the evidence adduced in the case. Judged by the standard of prudent man, in the light of the nature of onus cast by law, the probative effect of evidence in civil and criminal proceedings is markedly different. The same evidence which may be sufficient to regard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a conviction. The same is largely true about proof of a charge of corrupt practice, which cannot be established by a mere balance of probabilities and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt - not being the doubt of a timid, fickle or vacillating mind - as to the veracity of the charge, it must hold the same as not proved”.

12. A three-Judge Bench of this Court in Jeet Mohinder Singh (supra), referring to a large number of earlier decisions, culled out the following legal principles, relevant for our purpose, in the field of election jurisprudence:

“(i) The success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity of the election process has to be safeguarded and the Court shall be vigilant to see that people do not get elected by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves an enormous load on the public funds and administration. [See: Jagan Nath Vs. Jaswant Singh, Gajanan Krishnaji Bapat Vs. Dattaji Raghobaji Meghe].

(ii) Charge of corrupt practice is quasi-criminal in character. If substantiated, it leads not only to the setting aside of the election of the successful candidate, but also of his being disqualified to contest an election for a certain period. It may entail extinction of a person's public life and political career. A trial of an election petition though within the realm of civil law is akin to trial on a criminal charge. Two consequences follow. Firstly, the allegations relating to commission of a corrupt practice should be sufficiently clear and stated precisely so as to afford the person charged a full opportunity of meeting the same. Secondly, the charges when put to issue should be proved by clear, cogent and credible evidence. To prove charge of corrupt practice a mere preponderance of probabilities would not be enough. There would be a presumption of innocence available to the person charged. The charge shall have to be proved to the hilt, the standard of proof being the same as in a criminal trial. [See: Quamarul Islam Vs. S.K. Kanta, F.A. Sapa Vs. Singora, Manohar Joshi etc. Vs. Damodar Tatyaba alias Dada Saheb Rupwati etc. and Ram Singh Vs. Col. Ram Singh].

(iii) The Appellate Court attaches great value to the opinion formed by the trial Judge more so when the trial Judge recording findings of fact is the same who had recorded the evidence. The Appellate Court shall remember that the jurisdiction to try an election petition has been vested in a Judge of the High Court. Secondly, the trial Judge may have had the benefit of watching the demeanour of witnesses and forming first-hand opinion of them in the process of evaluation of evidence. The Supreme Court may reassess the evidence and come to its own conclusions on feeling satisfied that in recording findings of fact the High Court has disregarded settled principles governing the approach to evidence or committed grave or palpable errors.[See:Gajanan Krishnaji Bapat (supra); Kripa Shankar Chatterji Vs. Gurudas Chatterjee]”. 

13. Similar opinion has been expressed in subsequent decisions, including Surinder Singh (supra) and Mercykutty Amma (supra) on which reliance had been placed by learned counsel for the appellant.

Have a look at the decision.

Constructive Res judicata: The law revisited

In a recently reported decision [Ramchandra Dagdu Sonavane (Dead) by L.Rs. v. Vithu Hira Mahar (Dead) by LRs. & Ors., AIR 2010 SC 818], the Supreme Court has explained the doctrine of constructive res judicata as applicable in Indian law. A sub-set of the doctrine of res judicata, emanating from Section 11 of the Code of Civil Procedure, the doctrine of constructive res judicata sets to naught any claims being raised in a subsequent proceeding where in an earlier proceeding such claim should / ought to have been raised and decided. A rule of prudence, thus, the doctrine seeks to bar determination and enforcement of claims which have not been raised at an appropriate juncture in judicial proceedings. 

The Supreme Court explained the meaning and ambit of the doctrine of constructive res judicata as under;

31) Res-judicata and Code of Civil Procedure :- It is well known that the doctrine of res- judicata is codified in Section 11 of the Code of Civil Procedure. Section 11 generally comes into play in relation to civil suits. But apart from the codified law, the doctrine of res-judicata or the principle of the res-judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India and other countries. The rule of constructive res-judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure and in many other situations also Principles not only of direct res-judicata but of constructive res-judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res-judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties. The Principle of res judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications even then the Principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided [See AIR 1978 SC 1283].

32) In Swamy Atmandanda vs. Sri Ramakrishna, Tapovanam [(2005) 10 SCC 51], it was held by this court :

 “26. The object and purport of the principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute-book with a view to bring the litigation to an end so that the other side may not be put to harassment.

27. The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment.” 

33) When the material issue has been tried and determined between the same parties in a proper suit by a competent court as to the status of one of them in relation to the other, it cannot be again tried in another suit between them as laid down in Krishna Behari Roy vs. Bunwari Lal Roy reported in [1875 ILR (IC-144)], which is followed by this Court in the case of Ishwar Dutt Vs. Land Acquisition Collector & Anr. [(2005) 7 SCC 190], wherein the doctrine of `cause of action estoppel’ and `issue estoppel’ has been discussed. It is laid down by this Court, that if there is an issue between the parties that is decided, the same would operate as a res-judicata between the same parties in the subsequent proceedings. This court in the case of Isher Singh vs. Sarwan Singh, [AIR 1965 SC 948] has observed :

“11. We thus reach the position that in the former suit the heirship of the respondents to Jati deceased (a) was in terms raised by the pleadings, (b) that an issue was framed in regard to it by the trial Judge, (c) that evidence was led by the parties on that point directed towards this issue, (d) a finding was recorded on it by the appellate court, and (e) that on the proper construction of the pleadings it would have been necessary to decide the issue in order to properly and completely decide all the points arising in the case to grant relief to the plaintiff. We thus find that every one of the conditions necessary to satisfy the test as to the applicability of Section 11 of the Civil Procedure Code is satisfied.”

34) So far as the finding drawn in the suit for injunction in O.S. No.104 of 1953, regarding adoption would also operate as a res-judicata in view of the judgment of this Court in the case of Sulochana Amma Vs. Narayanan Nair [(1994) 2 SCC 14]. It is observed: “The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata. It is a settled law that in a Suit for injunction when title is in issue, for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata.”

38) Reference may be made to the decision of this court in the case of Sulochana Amma vs. Narayanan Nair, [(1994) 2 SCC 14 Para 9] on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in suit for injunction touching the title between the same parties, would operate as res judicata : “It is a settled law that in a suit for injunction when title is in issue, for the purpose of granting injunction the issue directly and substantially arises in that suit between the parties. When the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res judicata.”

39) To the same effect, the judgment of this court in the case of Sulochana Amma vs. Narayanan Nair, [(1994) 2 SCC 14 Para 9] in which it has been held that the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in suit for injunction touching the title between the same parties, would operate as res judicata.

Have a look at the decision.

Summary procedure for contempt proceedings permissible: Supreme Court

In a recently reported decision [AIR 2010 SC 862], the Supreme Court has declared that summary procedure can be adopted to determine contempt proceedings against a person and even though a procedure has been prescribed under Section 14 of the Contempt of Courts Act, 1971, yet the same can be dispensed in exceptional circumstances. The Court was dealing with the contempt charges on a lady who had throw a shoe at the Supreme Court judge during the course of hearing in full public view and in these circumstances, it was declared that the entire procedure under the Act could be dispensed, being redundant, and summary procedure could be adopted as a punishment for contempts. 

The background facts leading to the present decision were noted in the decision as under;

3. ... The order recorded by Dr. Justice Pasayat indicates that one of the petitioners had gone to the extent of saying that the Judges should be jailed for having initiated proceedings against them and that the Judges should be punished for not taking care of their fundamental rights. One of the writ petitioners, namely, Dr. Sarita Parikh, went to the extent of throwing a footwear at the Judges. His Lordship also recorded that all this happened in the presence of the learned Solicitor General of India (now Attorney General for India), two learned Additional Solicitor Generals and a large number of learned counsel and advocates, including the President of the Supreme Court Advocates-on-Record Association. Having recorded the said incidents which had occurred within the sight of the Hon’ble Judges and the other persons present in Court, Dr. Justice Pasayat held such behaviour to be contemptuous in the face of the Court. Since the petitioners stood by what they had said and done in court, His Lordship felt that there was no need to issue any notice and holding them to be guilty of criminal contempt of this Court, inflicted a punishment of three months’ simple imprisonment on them.

4. The said course of action did not meet the approval of the other learned Judge, the Hon’ble Mr. Justice Asok Kumar Ganguly, who by a separate order of even date, observed that the writ petitioners could not have been punished for contempt without due compliance with the provisions of Section 14(1)(a)(b)(c) and (d) of the Contempt of Courts Act, 1971. His Lordship was also of the view that the Court’s power under Article 142 was not meant to circumvent the statutory requirements. His Lordship, accordingly, observed as follows :

“Therefore, in this view of the matter, I cannot agree with the view expressed in the order of His Lordship Justice Pasayat, for sending the alleged contemnors to prison for allegedly committing the contempt in the face of the Court without following the mandate of the Statute under Section 14. I, therefore, cannot at all agree with His Lordship’s order by which sentence has been imposed. I am of the view that the liberty of those persons cannot be affected in this manner without proceeding against them under Section 14 of the Act. In my opinion Section 14 is in consonance with a person’s fundamental right under Article 21.”

5. Having regard to the difference of opinion as to the procedure to be adopted before the petitioners could be found guilty of contempt of Court and sentenced, the matter was directed to be placed before Hon’ble The Chief Justice of India and a direction was given that the contemnors would remain in custody till the matter could be heard by an appropriate Bench.

In this background, the Bench declared the law as under;

17. As far as the suo motu proceedings for contempt  are concerned, we are of the view that Dr. Justice Arijit Pasayat was well within his jurisdiction in passing a summary order, having regard to the provisions of Articles 129 and 142 of the Constitution of India. Although, Section 14 of the Contempt of Courts Act, 1971, lays down the procedure to be followed in cases of criminal contempt in the face of the court, it does not preclude the court from taking recourse to summary proceedings when a deliberate and wilful contumacious incident takes place in front of their eyes and the public at large, including Senior Law Officers, such as the Attorney General for India who was then the Solicitor General of India. While, as pointed out by Mr. Justice Ganguly, it is a statutory requirement and a salutary principle that a person should not be condemned unheard, particularly in a case relating to contempt of Court involving a summary procedure, and should be given an opportunity of showing cause against the action proposed to be taken against him/her, there are exceptional circumstances in which such a procedure may be discarded as being redundant. The incident which took place in the court room presided over by Dr. Justice Pasayat was within the confines of the court room and was witnessed by a large number of people and the throwing of the footwear was also admitted by Dr. Sarita Parikh, who without expressing any regret for her conduct stood by what she had done and was supported by the other contemnors. In the light of such admission, the summary procedure followed by Dr. Justice Pasayat cannot be faulted.

18. Section 14 of the Contempt of Courts Act, 1971, deals with contempt in the face of the Supreme Court or the High Court. The expression “Contempt in the face of the Supreme Court” has been interpreted to mean an incident taking place within the sight of the learned Judges and others present at the time of the incident, who had witnessed such incident. In re: Nand Lal Balwani [(1999) 2 SCC 743], it was held that where an Advocate shouted slogans and hurled a shoe towards the Court causing interference with judicial proceedings and did not even tender an apology, he would be liable for contempt in the face of the Court. It was observed by the Bench of three Judges which heard the matter that law does not give a lawyer, unsatisfied with the result of any litigation, licence to permit himself the liberty of causing disrespect to the Court or attempting, in any manner, to lower the dignity of the Court. It was also observed that Courts could not be intimidated into passing favourable orders. Consequently, on account of his contumacious conduct, this Court sentenced the contemnor to suffer four months simple imprisonment and to pay a fine of Rs.2,000/-. In another decision of this Court in Charan Lal Sahu v. Union of India and another [(1988) 3 SCC 255], a petition filed by an experienced advocate of this Court by way of a public interest litigation was couched in unsavoury language and an intentional attempt was made to indulge in mudslinging against the advocates, the Supreme Court and other constitutional institutions. Many of the allegations made by him were likely to lower the prestige of the Supreme Court. It was also alleged that the Supreme Court had become a constitutional liability without having control over the illegal acts of the Government. This Court held that the pleadings in the writ petition gave the impression that they were clearly intended to denigrate the Supreme Court in the esteem of the people of India. In the facts of the case, the petitioner therein was prima facie held to be guilty of contempt of Court.

19. Section 14 of the Contempt of Courts Act no doubt contemplates issuance of notice and an opportunity to the contemnors to answer the charges in the notice to satisfy the principles of natural justice. However, where an incident of the instant nature takes place within the presence and sight of the learned Judges, the same amounts to contempt in the face of the Court and is required to be dealt with at the time of the incident itself. This is necessary for the dignity and majesty of the Courts to be maintained. When an object, such as a footwear, is thrown at the Presiding Officer in a Court proceeding, the object is not to merely scandalize or humiliate the Judge, but to scandalize the institution itself and thereby lower its dignity in the eyes of the public. In the instant case, after being given an opportunity to explain their conduct, not only have the contemnors shown no remorse for their unseemly behaviour, but they have gone even further by filing a fresh writ petition in which apart from repeating the scandalous remarks made earlier, certain new dimensions in the use of unseemly and intemperate language have been resorted to to further denigrate and scandalize and over-awe the Court. This is one of such cases where no leniency can be shown as the contemnors have taken the liberal attitude shown to them by the Court as licence for indulging in indecorous behaviour and making scandalous allegations not only against the judiciary, but those holding the highest positions in the country. The writ proceedings have been taken in gross abuse of the process of Court, with the deliberate and wilful intention of lowering the image and dignity not only of the Court and the judiciary, but to vilify the highest constitutional functionaries. 

20. In such circumstances, while agreeing with the procedure adopted by Dr. Justice Pasayat in the facts of this case, we are not inclined to interfere with the sentence which has been imposed on the contemnors.

Have a look at the decision.

Women Officers to get Full Commission in Armed forces: High Court

While the cry everywhere is to give equal rights and opportunities to the members of the fair sex, the Delhi High Court has done its part by setting aside the government policy and directing it to grant full commission to women officers in the armed forces. To defend the government policy was no less than the Solicitor General of India, Mr. Gopal Surbramaniam himself. However, the Division Bench of the High Court held otherwise. 

The High Court noted the claims of the women officers as under;

1. “Nature gave women too much power; the law gives them too little.” observed Will Henry, American political adviser and columnist. The claim of women to the right to serve in the Armed Forces has been and is a matter of debate in various countries. The denial of such right is pleaded to be a case of gender discrimination. This is more so as the modernization of the Armed Forces has resulted in lesser reliance on a hand to hand combat. The debate in each country is coloured by its own social & cultural norms and ethos. In some of the countries women have now been inducted into combat force while in other countries the induction has been restricted to support services to actual combat.
2. The second limb of the claim is for the right to Permanent Commission (for short "PC‟). In India the progress in this behalf has been slow on the perceived ground of social norms. There has been induction of women into certain restricted areas of the Armed Forces and that too on a Short Service Commission (for short "SSC‟) basis. The Government is stated to have carried out studies for grant of PC to women but till date it has not received a favourable response.
3. We are here concerned with women officers who were granted SSC in the Air Force and in the Army and who seek PC. These officers have had long stints albeit on SSC basis extended from time to time to as much as 14 years. The consequence of not being granted PC is that these officers are deprived of certain benefits and privileges, which would have enured to them in case of grant of PC like pension, ex-serviceman status, medical facilities, etc.

The High Court undertook stocktaking of the position in relation to all three wings of the armed forces and noted the arguments of the rival sides acknowledged that "courts are slow to interfere in policy matters (which) is more so where the Armed Forces are involved which have their own peculiar requirements and norms" and also that "as to whether women ought to be recruited or not into the Armed Forces and if so then in which areas of operation, does fall within policy domain". However the Court was quick to point out that on such counts it cannot choose to ignore the "discrimination on the ground of gender in terms of opportunities" and the claims for "equity and fairness in view of Articles 14, 16 & 21" of the Constitution of India. The High Court clearly pointed out, thus, that "the area of judicial scrutiny would arise where both men and women officers are taken on SSC pursuant to a policy decision and while men have been offered PC, a similar privilege has not been extended to the women officers." Being of this view, the High Court declared the law as under;

57. The doctrine of legitimate expectation as observed in various judgments referred to aforesaid is granted on the rule of law as requiring regularity, predictability and certainty in Government dealings with the public, operating both on procedural and substantive matters. The fair play would be the expectation from the Government.
58. We are of the considered view that the women officers of the Army can be treated no differently from the Air Force women officers even though there is no specific policy decision in their case as they are at par with the women Air Force officers.
59. The methodology adopted by the Army in dropping seniority for any differential of training inter se male officers or inter se female and male officers as discussed in the factual matrix can equally apply for fixing seniority once PC is granted to the women officers.
60. A PC carries with it certain privileges of rank including pension. These women officers have served well the Armed Forces of the country in the areas of operation they were recruited for and have worked in this capacity for 14 to 15 years. They deserved better from the respondents. There is no reason why these persons who have knocked the door of the court should be deprived of their benefit and the benefit extended only in future for grant of PC to women. It is not as if a complete chapter can be opened by persons who have chosen to accept the SSC and on completion of period decided to go out of service. The benefit is only available to serving officers and the ones who knocked the court but during the period of consideration of the matter retired from service. It would have been in the fitness of things if the respondents having taken the decision to offer PC prospectively should have favourably examined as a policy itself, the plea of the petitioners who were in service or retired from service during pendency of petition to grant them an equivalent benefit. In matters of gender discrimination a greater sensitivity is expected and required.

The High Court further issued consequential directions to the armed forces to consider the claims of the women officers for Permanent Commission in terms of the decision.

Have a look at the decision.

Overseas citizens can represent India in international sports

In a recent decision delivered by the Chief Justice of the Punjab and Haryana High Court, it has been declared that 'Overseas Citizens of India' (OCI) are entitled to participate in international sports tournaments and represent India. The High Court was dealing with a petition of Sorab Singh Gill who challenged the policy framed by the Government of India which had opined that "the best interest of India Sports would be served by ensuring that players who are Indian citizens only represent the country in the National teams" whereas Gill was holding OCI status right since 2007.

It was argued by the Government that since Gill "does not hold a Indian passport and therefore he is not an Indian citizen and thus not entitled to represent India in International Sports events" whereas it was argued on behalf of Gill that the various notifications issued by the Government itself granted "parity with nonresident Indians in respect of all the facilities available to them in economic, financial and educational fields and consequently since he is a student and education is a part of sport, he is entitled to exercise the same right as a NRI."

The High Court, however, was not impressed with the objections of the Government. Holding that Gill as an Overseas Citizen of India was entitled to participate and represent India in international sports competitions, observed as under;

18. We are of the view that there is substance in the plea of learned counsel for the petitioner. From time immemorial schools have also included sports as part of education. All good schools have invariably included sports as part of education for the overall development of a student and it is, therefore, considered a necessary ingredient of education. Those, talented in sports, have also got admission in the educational institutions on such basis thereby reflecting weightage to the performance in sports in the field of education. ...

19. Since an NRI is permitted to participate for India in sports events and facilities analogous to the NRIs, have been granted to the OCIs by a notification dated 11.4.2005, we are satisfied that the petitioner could not be denied such participation.

Have a look at the decision.

50 percent reservation for women excessive: High Court

While our respected Parliamentarians are busy supporting (and countering) reservation of fifty percent for women in the Parliament and State Assemblies, the Rajasthan High Court in a recent decision has already declared fifty percent reservation for women in the local municipalities. While the reservation in the Rajasthan municipalities was of one-third for women, it was increased to one-half by amendment, which was challenged in the High Court. A division Bench of the High Court, headed by the Chief Justice himself agreed that the reservation was excessive and no justification was provided to this regard by the Government.

The Petitioner had argued before the High Court that "Reservation of women has been raised from one-third to one-half of the total seats meant for Scheduled Castes, Scheduled Tribes, Backward Classes and even for open category. It is contended that without ascertaining even proportionate population of women, amendment has been made to provide reservation to women to the extent of 50% of the total seats. Taking note of the aforesaid reservation to women to the Scheduled Castes, Scheduled Tribes and Backward Classes comes out to be more than 50% of the total seats, rather it comes out to be more than 75% of the total seats, thus the same is excessive. On account of excessive reservation, ordinary citizen is deprived to contest election, which cannot be said to be in consonance with the spirit of the Constitution of India. The Government is having no material to justify women reservation in excess to one-third of the total seats earlier reserved. No survey was conducted before the amendment. Referring to the proportionate population ratio between male and female it was urged that total population of male is more than the population of the female, thus reservation in favour of the women/female to the extent of 50% of seats would disproportionate to the population of female, thus, it is a case of excessive reservation."

The High Court, setting aside 50 percent reservation, declared as under;

... we have to keep in mind that while providing reservation to any caste or category, it should not be an excessive reservation. The respondents have not come with any material to justify amendment in sub-section 6 and 7 of the Act and consequential amendment in the Rules. They have not even furnished the details of the proportionate population between male and female in the State of Rajasthan. In view of aforesaid, the State has supported the amendment only based on arguments. 

Since reservation to Scheduled Castes and Scheduled Tribes has been kept limited in proportion to the population, we have to keep in mind the aforesaid legal position to adjudicate the issue raised herein. One-third of the total seats have been reserved for women as per constitutional provision itself. It is no doubt true that over and above one-third of the total seats, women can be given reservation but then it should not be out of proportion. The reservation to any category and caste should be rational and not excessive. The Hon’ble Supreme Court, while considering the matter in the case of Indra Sawhney (supra) put a rider that reservation should not exceed to 50% in ordinary case. The aforesaid judgment was in reference to Article 16 of the Constitution of India thus cannot be applied as such, however the ratio of the aforesaid judgment can be looked into for judging the issue as to whether there exist excessive reservation in favour of women or not. Article 14 of the Constitution guarantee right of equality among the citizens. If for example, total proportionate population ratio between male and female is 55% and 45% respectively in any State then reservation of 50% seats for women candidates in proportion to population would be more than 50%. 

In the present case, respondents have not given proportionate population ratio to justify their action and to show that they have not provided excess reservation to the women. In absence of such figures, we are constrained to give a specific opinion on the aforesaid issue. However, keeping in mind provisions of Article 243 T of the Constitution as well as Articles 14 and 15, we are of the view that if proportionate population of the women is less than the male then reservation of 50% seats for women is excessive and, in that case, Article 14 of the Constitution is violated, hence, amended provisions, as challenged, deserve to be struck down being ultra vires.

Have a look at the decision.

Rule of Law: Dicey revisited

One must have come across the term 'rule of law' on occasions more than many whether it be the lawyers or the judges who dawn this and related concepts in their judicial speeches or even the layman when speaking in general over the state of affairs in the community. If anyone is to be thanked for giving us this touchstone to vouchsafe or criticize governmental action, it is noted jurist A.V. Dicey who propounded the concept of Rule of Law in his treatise 'An Introduction to the study of the Law of the Constitution'. 


The rule of law, as Dicey has explained, is comprised of three basic tenets which are guaranteed to an individual in a legal system. Reflective of the nature and precincts of the legal system, the presence of these tenets determine whether a given legal system is inbuilt with an inherent protection for its subjects and thus whether the governance is based upon the rule of law. In the context of the British legal system, Dicey in his treaties describes the 'Rule of law' as under;

[First], no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint ... [the rationale being that] wherever there is a discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on part of the government must mean insecurity for legal freedom on the part of its subjects.

[Second], no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of ordinary tribunals ... [for] the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limits.

[Third], We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public hearing) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts. 

Having stated so, Dicey further went on to summarize the principles governing the rule of law as under;

It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are rule by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. 

It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens from the jurisdiction of the ordinary tribunals; there can be nothing really corresponding to the 'administrative law' (droit administratif) or the administrative tribunals (tribunaux administratifs) of France. The notions which lie at the bottom of the 'administrative law' known to foreign countries is, that affairs or disputes in which the government or its servants are concerned are beyond the sphere of the civil courts and must be dealt with by special and more or less official bodies. This idea is utterly unknown to the law of England, and indeed is fundamentally inconsistent with our traditions and customs.

The 'rule of law', lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of the individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and the Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land.

Thus, according to Dicey, the rule of law relates to avoidance of arbitrariness in all forms of governmental action, equality of law and equal protection of laws; and the source of rights being the courts of law. Avid readers on Indian constitutional law would agree that these principles have more or less been incorporated in the Constitution itself, therefore ensuring that the country is governed on the lines as permeating 'rule of law' in every action. 

International Law Meets Domestic Constitutional Law: A loss of Supremacy?

A great jurist, John Austin in his famous treatise 'The Province of Jurisprudence Determined' describes law as a command requiring obedience and eminating from a sovereign. On similar pretext, sovereignty has been described as an essential attribute of statehood wherein the unyielding powers are referred to as the State instrumentalities. In a given territorial set-up, with an identified king (or rule-making power in the context of a democratic set-up) this attribution of sovereignty is possible without much difficulty. However issues arise when this sovereign is also required to yield (even if in some limited aspects) to an external authority. International law has, therefore, been a source of a number of unrebutted scathing attempts diluting the sovereignty theory. 

In as much as a government, conferred with sovereign powers and rights under the constitution, is required to yield to an international body of norms and principles, scholars have been divided in contra-posing the attributes of a sovereign in the wake of development of international law. Nonetheless, in as much as international law is here to stay and aspired to continue, the loss of supremacy of the domestic law is bound to take place. On the similar theme is this recent article by a Professor of International law, which "analyses how domestic constitutional law in many countries responds to the increasing intrusiveness and regulatory claims of international law, notably by refusing to accept an unconditional supremacy of international law above domestic constitutional principles".

In the paper entitled "Supremacy Lost: International Law Meets Domestic Constitutional Law", Anne Peters has made an attempt to inter alia show "how international and domestic constitutional law are more and more converging", the "spreading practice of constitutional interpretation in conformity with international law", to analyze the claims of supremacy of international law to show that "[w]hile the international courts and tribunals claim supremacy over all domestic law, including constitutional law, this claim is rejected by more and more domestic actors. At the same time, more and more domestic courts claim the competence to scrutinize whether international rules and court decisions are in conformity with the domestic constitution."

Having examined the diverse constitutional practices in response to international law, the author concludes that "the examples of national constitutions and case-law have demonstrated that there is indeed a worldwide constitutional practice highly responsive to international law but jealous of safeguarding at least domestic core constitutional principles against international intrusion". He further resonates to note the development of pluralist theory explaining the dimension to state that "[t]he plurality of perspectives is accompanied by a plurality of legal orders, a plurality of legal actors claiming ultimate authority, and a plurality of rules of conflict. In this intellectual framework, there is no legal rule to decide which norm should prevail, in other words there is no supremacy. There is also no legal rule to resolve the competing claims to authority raised by the international and the domestic constitutional actors. Different legal actors, for example courts, necessarily belong to one of the various orders, therefore necessarily speak from their own perspective, and can only apply a rule of priority residing in their own legal system. In the absence of an overarching, institutionalized power which could decide a conflict, the different actors' perspectives are – in legal terms – equally valid and consistent. Conflicts can therefore not be decided by legal argument, but must be solved politically."

The author advocates that the resolution of the so-dubbed conflict can be attained in the scenario where "the fundamental idea is that what counts is the substance, not the formal category of conflicting norms. Such a flexible approach appears to correspond better with the current state of global legal integration than does the idea of a strict hierarchy, particularly in human rights matters. From this perspective, international law and state constitutions find themselves in a fluent state of interaction and reciprocal influence, based on discourse and mutual adaptation, but not in a hierarchical relationship."

In all, the paper provides meaningful insights on the issue and serves as a guide to maneuver the changing interactive dimensions between domestic and international law. Have a look.

India lends to the IMF !!!

Remember the time when India was under intense pressure on the international financial front in terms of the balance of payments problems. It was then that the country came of age and opened up itself to the rigours of commercial markets, not only to undo the potential of a sovereign collapse but also to reverse the trend. Those who remember the days in the beginning of the 1990s decade will not only be pleased but will also rejoice to note that where India borrowed extensively from the IMF once (even by pledging its gold reserve), now India has given a 10 billion USD loan to IMF such that the international body can wriggle out the developed countries from the financial crisis. 

The Reserve Bank of India has entered into a 'Note Purchase Agreement' with the International Monetary Fund, to which the IMF website notes that "the agreement offers India a safe investment instrument at the same time as boosting the Fund’s capacity to help its members to weather the global financial crisis, and to facilitate an early recovery from the worldwide economic crisis." A factsheet on the IMF notes available on IMF website states that such agreements are meant for such IMF members which have their "external position sufficiently strong" and is thus reflective of the current position of India on the international financial front to show a marked change in the position in last two decades.

And for our law-buff readers, we would recommend having a look at the agreement which sets into perspective the international agreement conditioning and structuring.

Ensuring Corporate Compliance

Coming from a Stetson Professor is this paper entitled 'Educating Compliance' which beautifully sums up the issues relating to ensuring compliance of law from the corporate entities. Taking note of the problem that to speak of the conviction of corporates is rather absurd and that 'it is the individuals within the corporation ... which qualify for the legal fiction for criminal prosecution', the author argues "that pitting the corporate entity against the individual is a bizarre construct for achieving compliance". 

The author has sought to argue against the 'reactive model' which "looks at punishing misconduct to achieve compliance with the law", to argue that by "focusing more resources on the front end and using a pro-active model to achieve compliance would keep the corporate structure whole and yet also provide a sound basis for eradicating corporate criminality". In short, the author has argued that with the government taking an interactive part to this end, corporates can be educated to keep in place an internal program which ensures that the company carries on its business in a manner which is complaint with the law by building a system in place to this end. The author advances the case of pro-active efforts to achieve compliance by using "corporate guidelines that provide a reward to companies that have effective programs and court decisions that emphasize the need to have compliance measures in place to avoid civil suits." 

Though written in the typical perspective of the United States law, the paper provides insights into the effects of proactive measures to ensure due-diligence on increased compliance by the corporate entities. The potential benefits of such an approach, the author describes in the following terms;

If the pro-active model is successful, government costs should be reduced in that fewer investigations and prosecutions would be necessary. A pro-active model also has the entity and individuals in the company working together to assure compliance. Unlike a reactive model that attempts to secure compliance after misconduct through either rehabilitation or deterrence, the corporation and its employees are not pitted against each other as they try to obtain the best benefit for the entity. Finally, government sponsored education allows the government to reap the benefit of better evidence against a company or individuals within the entity when the company fails to comply with the law. 

From a pure economic perspective, another argument of note is the fact that "The government expends enormous resources prosecuting corporate criminality. It can prove equally, if not more so, expensive to the corporation that needs to defend itself against these actions and accompanying civil actions that may accrue from a prosecution or the corporation's entry into a deferred or non-prosecution agreement" to argue that "In these days of limited resources, one has to wonder if a pro-active model might provide a better method for achieving corporate compliance. Reaching out and educating corporations as to what will be considered unacceptable conduct can allow corporations to formulate better compliance programs."

In all, the paper proves to be a recommended reading for those interesting in this aspect of corporate governance. Have a look.

Welfare of child paramount to determine custody: Supreme Court

In a decision rendered today, the Supreme Court has reaffirmed the principle that the welfare of the child is the paramount factor to determine as to whom the custody of the child should be given. The Court was dealing with a custody battle where the mother wanted to take the child (Shivam) to Australia - where she was working - whereas the father, settled in India, contended that it is not in the interest of the child to leave India permanently. The two had already been divorced a year earlier. 

In this regard, taking note of the wishes of the child and considering his best interests, the Supreme Court affirmed the legal principle and allowed the custody to be retained by the mother in the following terms;

13. We have also talked with the child in our chambers in the absence of his parents. We found him to be quite intelligent and discerning. The child is in school and from the behaviour of the child, we could make out that he is well behaved and that he is receiving proper education.

14. The child categorically stated that he wants to stay with his mother. It appears to us that the child is about 8-10 years of age and is in a very formative and impressionable stage in his life. The welfare of the child is of paramount importance in matters relating to child custody and this Court has held that welfare of the child may have a primacy even over statutory provisions [See Mausami Moitra Ganguli vs. Jayant Ganguli – (2008) 7 SCC 673, para 19, page 678]. We have considered this matter in all its aspects. 

15. The argument of the learned counsel for the appellant, that in view of the provisions of Section 26 of the Act, the order of custody of the child and the visitation rights of the appellant cannot be changed as they are not reflected in the decree of mutual divorce, is far too hyper technical an objection to be considered seriously in a custody proceeding. A child is not a chattel nor is he/she an article of personal property to be shared in equal halves.

16. In a matter relating to custody of a child, this Court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing stages of his or her life. That is why custody orders are always considered interlocutory orders and by the nature of such proceedings custody orders cannot be made rigid and final. They are capable of being altered and moulded keeping in mind the needs of the child.

17. In Rosy Jacob vs. Jacob A Chakramakkal - [(1973) 1 SCC 840], a three judge Bench of this Court held that all orders relating to custody of minors were considered to be temporary orders. The learned judges made it clear that with the passage of time, the Court is entitled to modify the order in the interest of the minor child. The Court went to the extent of saying that even if orders are based on consent, those orders can also be varied if the welfare of the child so demands.

18. The aforesaid principle has again been followed in Dhanwanti Joshi vs. Madhav Unde - [(1998) 1 SCC 112]. 

19. Even though the aforesaid principles have been laid down in proceedings under the Guardians and Wards Act, 1890, these principles are equally applicable in dealing with the custody of a child under Section 26 of the Act since in both the situations two things are common; the first, being orders relating to custody of a growing child and secondly, the paramount consideration of the welfare of the child. Such considerations are never static nor can they be squeezed in a strait jacket. Therefore, each case has to be dealt with on the basis of its peculiar facts.

20. In this connection, the principles laid down by this Court in Gaurav Nagpal vs. Sumedha Nagpal reported in (2009) 1 SCC 42 are very pertinent. Those principles in paragraphs 42 and 43 are set out below:

“42. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible.

43. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the “welfare of the child” and not rights of the parents under a statute for the time being in force”.

21. That is why this Court has all along insisted on focussing the welfare of the child and accepted it to be the paramount consideration guiding the Court’s discretion in custody order. See Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka - [AIR 1982 SC 1276], para 17.

22. In the factual and legal background considered above, the objections raised by the appellant do not hold much water. 

Have a look at the decision.

Post-Script Rejoinder

Subsequent to writing this post, we came across a later decision of the Supreme Court [Ashish Ranjan v. Anupama Tandon] wherein certain related and allied principles relating to custody of child were discussed. We are therefore exacting the relevant paragraphs of this decision as under;

15. In Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090, this Court (Three-Judge Bench) considered the nature of custody of a minor under the provisions of Guardians and Wards Act, 1890 and application of doctrine of res-judicata/estoppel in respect of the same and held as under:

“The appellant’s argument based on estoppel and on the orders made by the court under the Indian Divorce Act with respect to the custody of the children did not appeal to us. All orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. It is unnecessary to refer to some of the decided cases relating to estoppel based on consent decrees, cited at the bar. Orders relating to custody of wards even when based on consent are liable to be varied by the Court, if the welfare of the wards demands variation.”

16. The aforesaid judgment was re-considered by this Court (Two- Judge Bench) in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, and after quoting the ratio of the said judgment, held as under: 

“21……However, we may state that in respect of orders as to custody already passed in favour of the appellant the doctrine of res judicata applies and the Family Court in the present proceedings cannot re-examine the facts which were formerly adjudicated between the parties on the issue of custody or are deemed to have been adjudicated. There must be proof of substantial change in the circumstances presenting a new case before the court. It must be established that the previous arrangement was not conducive to the child’s welfare or that it has produced unsatisfactory results…..”

17. In Jai Prakash Khadria v. Shyam Sunder Agarwalla & Anr., AIR 2000 SC 2172; and Mausami Moitra Ganguli v. Jayant Ganguli, AIR 2008 SC 2262, this court held that it is always permissible for the wards to apply for the modification of the order of the court regarding the custody of the child at any stage if there is any change in the circumstances. (See also Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409) 

18. It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the “moral and ethical welfare of the child must also weigh with the court as well as his physical well-being”. The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution with love, affection and sentiments applying human touch to the problem. Though, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases. (vide Gaurav Nagpal v. Sumedha Nagpal, AIR 209 SC 557).

19. Statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. (vide Elizabeth Dinshaw v. Arvand M. Dinshaw, AIR 1987 SC 3; Chandrakala Menon v. Vipin Menon, (1993) 2 SCC 6; Nil Ratan Kundu & Anr. v. Abhijit Kundu, (2008) 9 SCC 413; Shilpa Aggarwal v. Aviral Mittal & Anr. (2010) 1 SCC 591; and Athar Hussain v. Syed Siraj Ahmed & Anr., (2010) 2 SCC 654).

20. In addition to the statutory provisions of the Contempt of Court Act, 1971 the powers under Articles 129 and 142 of the Constitution are always available to this court to see that the order or undertaking which is violated by the contemnor is effectuated and the court has all powers to enforce the consent order passed by it and also issue further directions/orders to do complete justice between the parties. Mutual settlement reached between the parties cannot come in the way of the well established principles in respect of the custody of the child and, therefore, a subsequent application for custody of a minor cannot be thrown out at the threshold being not maintainable. It is a recurring cause because the right of visitation given to the applicant under the agreement is being consistently and continuously flouted. Thus, doctrine of res-judicata is not applicable in matters of child custody. 

21. If the instant case is considered in totality taking into consideration the above referred judgments, we are of the view that in the facts and circumstances of the case, inference can be drawn that the rights of visitation given to the applicant by this court vide order dated 3.5.2008 stood completely frustrated and the respondents have ensured that the applicant may not reach his son and all attempts made by the applicant in this regard stood futile. The mind of the child has been influenced to such an extent that he has no affection/respect for the applicant. In such a fact-situation, we do not hesitate in holding that the respondents have deliberately and willingly violated the terms of the consent order and are guilty of committing the contempt of this court.

Supreme Court not to direct investigation for corruption

In a judgment pronounced today, the Supreme Court has declared that Supreme Court "is not the appropriate forum for seeking the initiation of investigation" against a Chief Minister against whom allegations of corruption have been leveled. The Supreme Court noted that "it is not viable for a writ court to order the initiation of an investigation. That function clearly lies in the domain of the executive and it is upto the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation."

The Court was dealing with a writ petition filed under Article 32 of the Constitution of India alleging violation of the fundamental rights of the petitioners before the Supreme Court alleging that the "incumbent Chief Minister of the State of Sikkim has misused his public office to amass assets disproportionate to his known sources of income." It was also alleged that "he has misappropriated a large volume of public money at the cost of the Government of India and the Government of Sikkim" for which the Supreme Court was prayed to direct the "Central Bureau of Investigation (CBI) to investigate the allegations that have been levelled against him". The Court, however, was not persuaded. Turning down the plea, the Supreme Court inter alia observed as under;

7. The fact that this petition was instituted at the initiative of four individuals belonging to a political party raises the apprehension that they were motivated by a sense of political rivalry rather than a public-spirited concern about the misuse of office by the incumbent Chief Minister. We must of course emphasise that the writ jurisdiction exercised by this Court cannot be turned into an instrument of such partisan considerations. However, even if we were to accept the locus standi of the petitioners keeping in mind that allegations of corruption on part of the incumbent Chief Minister do touch on public interest, this Court is not the appropriate forum for seeking the initiation of investigation.

...

9. However, the remedies evolved by way of writ jurisdiction are of an extraordinary nature. They cannot be granted as a matter of due course to provide redressal in situations where statutory remedies are available. It is quite evident that the onus is on the petitioners to demonstrate a specific violation of any of the fundamental rights in order to seek relief under writ jurisdiction. In the present petition, the petitioners have made a rather vague argument that the alleged acts of corruption on part of Shri Pawan Chamling amount to an infringement of Article 14 of the Constitution of India. We do not find any merit in this assertion because the guarantee of ‘equal protection before the law’ or ‘equality before the law’ is violated if there is an unreasonable discrimination between two or more individuals or between two or more classes of persons. Clearly the alleged acts of misappropriation from the public exchequer cannot be automatically equated with a violation of the guarantee of ‘equal protection before the law’.

10. Furthermore, we must emphasise the fact that the alleged acts can easily come within the ambit of statutory offences such as those of ‘possession of assets disproportionate to known sources of income’ as well as ‘criminal misconduct’ under the Prevention of Corruption Act, 1988. The onus of launching an investigation into such matters is clearly on the investigating agencies such as the State Police, Central Bureau of Investigation (CBI) or the Central Vigilance Commission (CVC) among others. It is not proper for this court to give directions for initiating such an investigation under its writ jurisdiction. While it is true that in the past, the Supreme Court of India as well as the various High Courts have indeed granted remedies relating to investigations in criminal cases, we must make a careful note of the petitioners’ prayer in the present case. In the past, writ jurisdiction has been used to monitor the progress of ongoing investigations or to transfer ongoing investigations from one investigating agency to another. Such directions have been given when a specific violation of fundamental rights is shown, which could be the consequence of apathy or partiality on part of investigating agencies among other reasons. In some cases, judicial intervention by way of writ jurisdiction is warranted on account of obstructions to the investigation process such as material threats to witnesses, the destruction of evidence or undue pressure from powerful interests. In all of these circumstances, the writ court can only play a corrective role to ensure that the integrity of the investigation is not compromised. However, it is not viable for a writ court to order the initiation of an investigation. That function clearly lies in the domain of the executive and it is upto the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation. It must also be borne in mind that there are provisions in the Code of Criminal Procedure which empower the courts of first instance to exercise a certain degree of control over ongoing investigations. The scope for intervention by the trial court is hence controlled by statutory provisions  and it is not advisable for writ courts to interfere with criminal investigations in the absence of specific standards for the same.

11. Hence it is our conclusion that the petitioners’ prayer cannot be granted. This court cannot sit in judgment over whether investigations should be launched against politicians for alleged acts of corruption. The Supreme Court of India functions as a Constitutional Court as well as the highest appellate court in the country. If the Supreme Court gives direction for prosecution, it would cause serious prejudice to the accused, as the direction of this Court may have far reaching persuasive effect on the Court which may ultimately try the accused. It is always open to the petitioners to approach the investigative agencies directly with the incriminating materials and it is for the investigative agencies to decide on the further course of action. While we can appreciate the general claim that the efforts to uncover the alleged acts of corruption may be obstructed by entrenched interests, in this particular case the petitioners would be well advised to rely on the statutory remedies. It is only on the exhaustion of ordinary remedies that perhaps a proceeding can be brought before a writ court and in any case the High Court of Sikkim would be a far more appropriate forum for examining the allegations made in the present petition.

Have a look at the decision.