It is most heartening, most gladdening and most refreshing to learn that the Supreme Court has in a recent judgment titled State Of Rajasthan And Ors Vs Shri Ramesh Chandra Mundra & Ors in Civil Appeal No. 457 of 2004 while exercising its civil appellate jurisdiction delivered on July 11, 2019 has very rightly and laudably maintained that institutional independence, financial autonomy is integral to independence of judiciary. There can be no denying or disputing it! This was very rightly held by the Supreme Court while clearly and categorically directing the Rajasthan Government to reconsider the two decade old proposal of the then Chief Justice of Rajasthan High Court to upgrade 16 posts of its Private Secretaries as Senior Private Secretaries which it had declined without even forwarding the same to the Governor. While interpreting the term ‘approval’ in the proviso to Article 229(2) of the Constitution of India, the Apex Court observed that the only ground on which the Government may refuse such proposal of the Chief Justice is that the proposal is not in conformity with the pay scales in civil services.

To start with, this latest, landmark and extremely laudable judgment delivered by a 3 Judge Bench of the Supreme Court comprising of Justice SA Bobde, Justice R Subhash Reddy and Justice BR Gavai sets the ball rolling in para 1 itself wherein it is pointed out that, “The Chief Justice of Rajasthan High Court found it necessary and appropriate to upgrade 16 posts of Private Secretaries as Senior Private Secretaries in the pay scale of Rs. 3450-5000/- with the special pay of Rs. 350/- from the pay scale of Rs.2500-4250/-.”

As we see, it is then pointed out in para 2 that, “Presumably since the decision to upgrade was accompanied by a decision to grant a special pay of Rs. 350/- and to place the upgraded employees in a higher financial implication, the Chief Justice wrote to the Government of Rajasthan for according sanction. This is in pursuance to the proviso to Article 229(2) of the Constitution of India which reads thus:

“229. Officers and servants and the expenses of High Courts: – (1) Appointment of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct:

Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.

(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorized by the Chief Justice to make rules for the purpose:

Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.

(3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court, shall be charged upon the Consolidated Fund of the State and any fees or other moneys taken by the Court shall form part of that Fund.””

As it turned out, para 3 then states that, “The matter eventually went to the desk of the Finance Secretary of the Government of Rajasthan who wrote a dissenting note and the Government of Rajasthan declined to accept the upgradation of 16 posts of Private Secretaries. As a result, the government communicated the non-acceptance to the Rajasthan High Court by letter dated 30.04.1998. Apparently, the recommendations of the Chief Justice of the Rajasthan High Court were never sent to the Governor.”

What then ensued is stated in para 4 which envisages that, “The affected Private Secretaries challenged the decision before the High Court by way of filing a writ petition. The Division Bench of the High Court took the view that the powers of the Chief Justice in relation to the appointments, conditions of services which include strength of staff and promotional avenues etc., are supreme. The High Court held that it is the Chief Justice alone who has the power to determine these matters having regard the requirement of the High Court and for better administrative efficiency. The outside agency would have no say in the matter. While so observing, the High Court however held that the salary paid to the staff of the High Court is chargeable to the Consolidated Fund of India and there can be no Executive interference.”

As a consequence, we then see that para 5 states that, “In effect, the High Court held that the decision of the Chief Justice to upgrade the posts is part of the power to increase or reduce the strength of the staff attached to the High Court and there was no requirement of approval of the Governor under the proviso to Article 229(2) of the Constitution of India. The High Court therefore set aside the letter dated 30.04.1998 declining to accept the decision of the Chief Justice of Rajasthan High Court and directed that the letter cannot be an impediment in exercise of such authority. The result is that the approval of the government to the proposal is not necessary. When the matter was heard in this Court, this Court passed an order directing the State Government to put up the matter before the Government of Rajasthan since the proposal of the Chief Justice had not been put up before the Governor.”

To put things in perspective, it is then noted in para 6 that, “It appears that the dissent note of the Finance Secretary of the Government of Rajasthan was put up before the Governor who has approved the dissent. No reasons have been recorded.”

While upholding the decision of Rajasthan High Court, it is then further held in para 7 that, “We find that the judgment of the High Court is undoubtedly correct to the extent that it holds that the decision to upgrade any post can be taken only by the Chief Justice and the said decision cannot be questioned by any authority.”

Furthermore, it is then clarified in para 8 that, “However, it is clear from the proviso to Article 229(2) of the Constitution of India that where any decision of the Chief Justice affects or relates to salaries, allowances, leave or pension, it would require the approval of the Governor of the State. Article 229 of the Constitution of India does not require a prior approval. Therefore, an ex post facto approval may also be valid.”

Moving on, it is then held in para 9 that, “We have no doubt that the decision in question of the Chief Justice of Rajasthan High Court affected the salaries and allowances which should be payable to the upgraded posts. The matter clearly had financial implications which would require the approval of the Government of the State. To that extent the observations of the High Court are not in accordance with Article 229 of the Constitution of India.” 

While pooh-poohing the inept manner in which the State Government and Governor handled this matter, it is then pointed out in para 10 that, “We however find that the matter has not been properly processed by the State Government. In the first instance, the government did not even forward the decision of the Chief Justice for approval to the Governor of the State. They were indeed bound to do so. They merely returned the proposal to the High Court as “not acceptable”. No reasons were given by the Governor.”

While raising a thought provoking question, it is then pointed out in para 11 that, “The present case raises an important question of law, viz., what is the meaning, scope and ambit of the word “approval” appearing in the proviso 229(2)? The issue goes to the very heart of judicial functioning, for without desirable condition of service of officers and servants of the constitutional courts, the administrative side courts may become highly inefficient. The Constitution-makers, recognizing that the officers and servants of constitutional courts require special protection, included the aforementioned provision in the Constitution itself.”

Going forward, para 12 then illustrates that, “The provision in the first draft constitution read differently from the present Art. 229(2). Further, the clause for the Supreme Court (Clause 104) and the High Courts were pari material. Clause 170, which was adopted from Section 228 of the Government of India Act, 1935 read:

“170. The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court and the salaries and allowances of the judges of the court shall be charged upon the revenue of the Province, and any fees or other moneys taken by the court shall form part of those revenues.”” 

While adding a rider, para 13 then discloses that, “However, Section 228 of the Government of India Act, 1935 contained an additional sub-clause whereby the Governor controlled the expenditures of the High Court. Section 228(2) of the Government of India Act, 1935 read:

“(2) The Governor shall exercise his individual judgment as to the amount to be included in respect of such expenses as aforesaid in any estimates of expenditure laid by him before the Legislature.””

Be it noted, para 14 then brings out that, “Departing from this, the clause was amended by the drafting committee to the following form, seemingly to ensure that the executive does not interfere with the functioning of the High Court:

“205. (2) Subject to the provision of any law made by the Legislature of the State, the conditions of service of officers of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the court or by some other judge or officer of the court authorized by the Chief Justice to make rules for the purpose:

Provided that the salaries, allowances and pensions payable to or in respect of such officers and servants shall be fixed by the Chief Justice of the Court in consultation with the Governor of the state in which the High Court has its principal seat.””

On the face of it, we then see that para 15 stating that, “A similar change was carried out in respect of Draft Article 122 (3), i.e., the provision relating to the Supreme Court. The Article took its final form on 27.05.1949 when in the Constituent Assembly, Dr. Ambedkar moved an amendment to Draft Article 122(2) to the state:

(2) Subject to the provisions of any law made by Parliament, the conditions of services of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other judge or officer of the court authorised by the Chief Justice of India to make rules for the purpose:

Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President.”” 

Truth be told, para 16 then brings out that, “Shri M. Ananthasayanam Ayyangar and Shri Pandit Thakur Das Bhargava raised objections to the amendment of the article on the grounds that it impedes the independence of the judiciary. In reply, Dr. Ambedkar stated that the real object of the provision is to create uniformity in pay scales across all civil services. He stated:

“But it seems to me that there is another consideration which goes to support the proposition that we should retain the phrase “with the approval of the President” and it is this. It is undoubtedly a desirable thing that salaries, allowances and pensions payable to servants of the State should be uniform, and there ought not to be material variations in these matters with regard to the civil service. It is likely to create a great deal of heart burning and might impose upon the treasury an unnecessary burden. Now, if you leave the matter to the Chief Justice to decide, it is quite conceivable- I do not say that it will happen- but it is quite conceivable that the Chief Justice might fix scales of allowances, pensions and salaries very different from those fixed for civil servants who are working in other department, besides the Judiciary, and I do not think that such a state of things is a desirable thing, and consequently in my judgment, the new draft, the new amendment which I have tabled contains the proper solution of this matter, and I hope the House will be able to accept that in place of the original proviso.””

More importantly, it is then observed in para 17 that, “On a reading of the constituent assembly debates, it is clear that the real object of the proviso is to ensure that the pay-scales between officers of constitutional courts and civil services are kept equal. In the present case, this purpose has not been violated. It is not open to the government to reject a proposal which is not in violation of this object. In other words, the only ground on which the Government may refuse the proposal of the Chief Justice is that the proposal is not in conformity with the pay scales in civil services.”

What’s more, para 18 then stipulates that, “In Supreme Court Employees’ Welfare Assn. v. Union of India, (1989) 4 SCC 187 it was held that the conditions of service of officers and servants of the Supreme Court in relation to salaries, allowances, leave or pension are to be decided by the Chief Justice and his proposal will ordinarily be accepted by the President. It was held:

“62. Thus, as delegated legislation or a subordinate legislation must conform exactly to the power granted. So far as the question of grant of approval by the President of India under the proviso to Article 146(2) is concerned, no such conditions have been laid down to be fulfilled before the President of India grants or refuses to grant approval. By virtue of Article 74(1) of the Constitution, the President of India shall, in exercise of his functions, act in accordance with the advice of the Council of Ministers. In other words, it is the particular department in the Ministry that considers the question of approval under the proviso to Article 146(2) of the Constitution and whatever advice is given to the President of India in that regard, the President of India has to act in accordance with such advice. On the other hand, the Chief Justice of India has to apply his mind when he frames the rules under Article 146(2) with the assistance of his officers. In such circumstances, it would not be unreasonable to hold that the delegation of the legislative function on the Chief Justice of India and also on the President of India relating to the salaries, allowances, leave and pensions of the officers and servants of the Supreme Court involve, by necessary implication, the application of mind. So, not only that the Chief Justice of India has to apply his mind to the framing of rules, but also the Government has to apply its mind to the question of approval of the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions. This condition should be fulfilled and should appear to have been so fulfilled from the records of both the Government and the Chief Justice of India. The application of mind will include exchange of thoughts and views between the Government and the Chief Justice of India and it is highly desirable that there should be a consensus between the two. The rules framed by the Chief Justice of India should normally be accepted by the Government and the question of exchange of thoughts and views will arise only when the Government is not in a position to accept the rules relating to salaries, allowances, leave or pensions.””

Do note, para 19 then states that, “It seems to us that the proviso to 229(2) (as also Article 146) does not reflect an architecture of hierarchy. We think that the correct constitutional approach is one of comity between different institutions working under the Constitution. The emphasis is not on the supremacy of one institution or demarcating the boundaries of the other. It is about ensuring institutional integrity of one while respecting the functional domain of the other. These provisions are meant to facilitate a dialogue of governance between high constitutional functionaries. A healthy dialogue, perhaps, even a debate is necessary for an efficient constitutional polity. The constitutional vision is not to draw “lakshman rekhas” between constitutional functionaries; its command is for the constitutional functionaries to efficiently coordinate to best achieve constitutional goals. It is this constitutional essence that was ignored when the request of the Ld. Chief Justice was not even placed before the Governor.”

Most importantly, it is then rightly underscored in para 20 that, “That independence of Judiciary is part of the basic structure of the Constitution is now well entrenched. The Constitution has insulated the Judiciary from outside influences both by the Executive and legislature. Article 223 to 234 in Chapter VI in part VI of the Constitution dealing with the Courts below the High Courts also show that the Constitution makers were equally keen to insulate even Subordinate Judiciary. Independence of Judiciary takes within its sweep independence of the individual Judges in relation to their appointments, tenure, payment of salaries and also non-removal except by way of impeachment. An integral part of ‘Independence of Judiciary’, as a constitutional value is the ‘Institutional Independence’ i.e. the aspect concerning the financial freedom or autonomy which the judiciary must possess and enjoy. This effective involvement of the judicial branch in budgeting, staff and infrastructure has also been recognized by the international community.”

In this context to what is mentioned in the last point of para 20, it would be worthwhile to mention what is then mentioned in para 21 that, “The United Nations Sub Committee in its preliminary reports in 1980, (Committee of Jurist and the International Commission of Jurist at Syracuse) emphasized the “Institutional Safeguards” for Independence of the Judiciary and the need for collaboration with the Judiciary in the preparation of budget. The relevant clauses are as under:-

“Financial Provisions: 

Article 24:- To ensure its independence the Judiciary should be provided with the means and resources necessary for the proper fulfillment of its Judicial Function.

Article 25:- The budget of the Judiciary should be established by the competent authority in collaboration with the judiciary. The amount allotted should be sufficient to enable each court to function without an excessive workload. The judiciary should be able to submit their estimate of their budgetary requirements to the appropriate authority.

[Note:- An inadequate provision in the budget may entail an excessive workload by reason of an insufficient number of budgetary posts, or of inadequate assistance, aids and equipments, and consequently by the cause of unreasonable delays in adjudicating cases, thus bringing the judiciary into discredit.]””

Not stopping here, it is then further pointed out in para 22 that, “The Universal Declaration of the independence of Judges has resolved as follows:

“2.40: The main responsibility for court administration shall vest in the judiciary.

2.41: It shall be a priority of the highest order of the state to provide adequate resource to allow for the due administration of justice, including physical facilities appropriate for the maintenance of Judicial independence, dignity and efficiency, judicial and administrative personnel; and operating budget.

2.42: The budget of the courts shall be paid by the competent authority in collaboration with the judiciary. The Judiciary shall submit their estimate of the budget requirement to the appropriate authority.””

Interestingly enough, it is then further stated in para 23 that, “The Seventh UN Congress on the prevention of Crime and treatment of offenders, Milan adopted the following resolutions:-

“7. It is the duty of each member state to provide adequate resources to enable the Judiciary to properly perform its function.””

Of course, para 24 then also points out that, “The Lusaka Seminar 1986 noted as follows:-

“23. Resources.

The executive shall ensure that the courts are adequately supplied with Judicial Officers and supporting staff.

49. Administration of the Post.

The Judiciary being a separate branch of Government should fall under the sole responsibility of the Chief Justice. Problem may arise when the Judicial Branch is considered as a department of a Ministry. Condition should therefore be created whereby the Judiciary has a greater say in the allocation of funds for the Judiciary.””

No doubt, it would be imperative to now mention that para 25 then reveals that, “Adequate budgeting so as to meet the judiciary’s work demands, so as to ensure proper infrastructure and facilities is integral to judicial functioning. In that sense, it is an aspect of judicial independence. That independence of Judiciary is part of the basic structure of the Constitution is by now well entrenched. An integral part of ‘Independence of Judiciary’, as a constitutional value is the ‘Institutional Independence’ i.e. the aspect concerning the financial freedom or autonomy which the judiciary must possess and enjoy.” 

More pertinently, it is then elucidated in para 26 that, “The scheme of Article 229 of the Constitution of India obviously requires a joint consideration of the proposal which the Chief Justice may make in regard to appointments, conditions of services, etc., in accordance with the Rules. Undoubtedly, if the Chief Justice takes a decision which has financial implications and that decision cannot be questioned by any authority, the financial implications which such decisions may have imposed, should receive due consideration at the hands of the State Government and eventually the Governor.”

For the sake of brevity, we have discussed only the key point of para 26. As a corollary, we further see that it is then observed in para 27 that, “We are in agreement with the above observations and find that in the present case, the State Government has not considered the issue in accordance with the spirit and letters of the Constitution of India.”

Suffice it to say, it is then held in para 28 that, “Having regard to the importance of the matter, we consider it appropriate to set aside the decision of not accepting the proposal of the Chief Justice and remand the matter back to the State Government for appropriate consideration. Undoubtedly, in case the State Government considers it necessary, it may hold a meeting with the concerned officers of the Rajasthan High Court as may be appropriate for resolving the issue.” Para 29 then says that, “Order accordingly.” Lastly, it is then held in para 30 that, “The instant appeal is disposed of in the above terms.”

In conclusion, it may well be said that this latest, landmark and extremely laudable judgment has sought to send the right, loud and unmistakable message to all the state governments and state governors that institutional autonomy and financial independence is integral to the independence of judiciary. Also, the decision to upgrade any post can only be taken by the Chief Justice of the concerned High Court and the said decision cannot be questioned by any authority. Also, in such cases where Chief Justice takes decision which cannot be questioned should receive due consideration from the State Government and eventually the Governor! There can be no two opinions that the State Government and the Governor should desist from not accepting what is recommended by the Chief Justice in such cases in keeping with what the Apex Court has clearly and convincingly held in this noteworthy case! 

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Political communication is a sub field of correspondence and political
theory that is worried about how data spreads and impacts legislative
issues and arrangement producers, the news media and citizens. As of
late, AI, normal language preparing, and organize examination have
turned out to be key instruments in the sub field. It manages the
creation, scattering, parade and impacts of data, both through broad
communications and relationally, inside a political setting. 

 

This
incorporates the investigation of the media, the examination of
addresses by government officials and those that are attempting to
impact the political procedure and formal and casual discussions among
individuals from people in general, among different angles. The media
goes about as scaffold among government and open. Political
correspondence can be characterized as the association concerning
governmental issues and residents and the cooperation modes that
interface these gatherings to one another. Political communication is a
procedure that incorporates political establishments and performing
artists, the news media and, critically, residents. 

 

Each demonstration
of political correspondence delivered by gatherings, intrigue
gatherings, or the media is intended for natives, to educate them, to
impact them. It is the association between these three gatherings that
issue in political communication. Inside governmental issues,
correspondence streams move in numerous ways: descending from
administering specialists to natives, on a level plane between political
performers, including news media, and upward from residents and
gatherings to the political foundations. Political communication is
worried about being effectively connected with nearby worldwide issues
and how the intensity of data, influence and key message configuration
can be utilized to comprehend and influence results at those dimensions,
especially in the territory of administration and legislative and
societal conduct.

In a big jolt to former Finance Minister – P Chidambaram, the Supreme Court most recently on September 5, 2019 in the notable judgment titled P Chidambaram Vs Directorate Of Enforcement in Criminal Appeal No. 1340 of 2019 (Arising out of SLP (Cri.) No. 7523 of 2019) has dismissed the fervent plea of pre-arrest bail plea made by him. It has also made some important observations vis-à-vis application of Prevention of Money Laundering Act and the scope of power vested under Section 438 of CrPC to grant anticipatory bail. The Bench of Apex Court comprising of Justice R Banumathi and Justice AS Bopanna also made it clear that though it disapproved the approach of the High Court Judge in extracting the note produced by the Enforcement Directorate but agreed with his conclusion that it is not a case fit to grant anticipatory bail.

To start with, the ball is set rolling in this noteworthy judgment authored by Justice R Banumathi for herself and Justice AS Bopanna by first and foremost observing in para 2 after granting leave in para 1 that, “This appeal relates to the alleged irregularities in Foreign Investment Promotion Board (FIPB) clearance given to the INX Media for receiving foreign investment to the tune of Rs 305 crore against approved inflow of Rs 4.62 crores. The High Court of Delhi rejected the appellant’s plea for anticipatory bail in the case registered by Central Bureau of Investigation (CBI) being RC No. 220/2017-E-0011 under Section 120B IPC read with Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. By the impugned order dated 20.08.2019, the High Court also refused to grant anticipatory bail in the case registered by the Enforcement Directorate in ECIR No. 07/HIU/2017 punishable under Sections 3 and 4 of the Prevention of Money-Laundering Act, 2002.”

Going forward, it is then pointed out in para 3 that, “Grievance of the appellant is that against the impugned order of the High Court, the appellant tried to get the matter listed in the Supreme Court on 21.08.2019; but the appellant could not get an urgent hearing in the Supreme Court seeking stay of the impugned order of the High Court. The appellant was arrested by the CBI on the night of 21.08.2019. Since the appellant was arrested and remanded to custody in CBI case, in view of the judgment of the Constitution Bench in Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565, the appellant cannot seek anticipatory bail after he is arrested. Accordingly, SLP (Cri.) No. 7525 of 2019 preferred by the appellant qua the CBI case was dismissed as infructuous vide order dated 26.08.2019 on the ground that the appellant has already been arrested and remanded to custody. This Court granted liberty to the appellant to work out his remedy in accordance with law.”

What’s more, it is then brought out in para 4 that, “On 15.05.2017, CBI registered FIR in RC No. 220/2017-E-0011 under Section 120B IPC read with Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the accused viz. (i) INX Media through its Director Indrani Mukherjea; (ii) INX News through its Director Sh. Pratim Mukherjea @ Peter Mukherjea and others; (iii) Sh. Karti P. Chidambaram and others; (v) Advantage Strategic Consulting through its Director Ms. Padma Vishwanathan @ Padma Bhaskararaman and others; (vi) unknown officers/officials of Ministry of Finance, Govt. of India; and (vii) other unknown persons for the alleged irregularities in giving FIPB’s clearance to INX Media to receive overseas funds of Rs 305 crores against approved Foreign Direct Investment (FDI) of Rs. 4.62 crores.” 

Furthermore, it is then also brought out in para 5 that, “Case of the prosecution in the predicate offence is that in 2007, INX Media Pvt. Ltd. approached Foreign Investment Promotion Board (FIPB) seeking approval for FDI upto 46.216 percent of the issued equity capital. While sending the proposal by INX Media to be placed before the FIPB, INX Media had clearly mentioned in it the inflow of FDI to the extent of Rs. 4,62,16,000/- taking the proposed issue at its face value. The FIPB in its meeting held on 18.05.2007 recommended the proposal of INX Media subject to the approval of the Finance Minister-the appellant. In the meeting, the Board did not approve the downstream investment by INX Media in INX News. In violation of the conditions of the approval, the recommendation of FIPB:- (i) INX Media deliberately made a downstream investment to the extent of 26% in the capital of INX News Ltd. without specific approval of FIPB which included indirect foreign investment by the same Foreign Investors; (ii) generated more than Rs. 305 crores FDI in INX Media which is in clear violation of the approved foreign flow of Rs 4.62 crores by issuing shares to the foreign investors at a premium of more than Rs. 800/- per share.”

Moving on, para 6 then further states that, “Upon receipt of a complaint on the basis of a cheque for an amount of Rs. 10,00,000/- made in favour of M/s Advantage Strategic Consulting Private Limited (ASCPL) by INX Media, the investigation wing of the Income Tax Department proceeded to investigate the matter and the relevant information was sought from the FIPB, which in turn, vide its letter dated 26.05.2008 sought clarification from the INX Media which justified its action saying that the downstream investment has been authorised and that the same was made in accordance with the approval of FIPB. It is alleged by the prosecution that in order to get out of the situation without any penal provision, INX Media entered into a criminal conspiracy with Sh. Karti Chidambaram, Promoter Director, Chess Management Services Pvt. Ltd. and the appellant-the then Finance Minister of India. INX Media through the letter dated 26.06.2008 tried to justify their action stating that the downstream investment has been approved and the same was made in accordance with approval.”

What is even more damning is what is stated in para 7 that, “The FIR further alleges that for the services rendered by Sh. Karti Chidambaram to INX Media through Chess Management Services in getting the issues scuttled by influencing the public servants of FIPB unit of the Ministry of Finance, consideration in the form of payments were received against invoices raised on INX Media by ASCPL. It is alleged in the FIR that the very reason for getting the invoices raised in the name of ASCPL for the services rendered by Chess Management Services was with a view to conceal the identity of Sh. Karti Chidambaram inasmuch as on the day when the invoices were raised and payment was received. It is stated that Sh. Karti Chidambaram was the Promoter, Director of Chess Management Services whereas ASCPL was being controlled by him indirectly. It is alleged that the invoices approximately for an amount of Rs. 3.50 crores were falsely got raised in favour of INX Media in the name of other companies in which Sh. Karti Chidambaram was having sustainable interest either directly or indirectly. It is alleged that such invoices were falsely got raised for creation of acquisition of media content, consultancy in respect of market research, acquisition of content of various genre of Audio Video etc. It is alleged that INX Media Group in his record has clearly mentioned the purpose of payment of Rs. 10,00,000/- to ASCPL as towards “management consultancy charges towards FIPB notification and clarification”. Alleging that the above acts of omission and commission prima facie disclose commission of offence, CBI has registered FIR in RC No.220/2017-E-0011 on 15.05.2017 under Section 120B read with Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the aforesaid accused.”

Be it noted, it is then illustrated in para 8 that, “On the basis of the said FIR registered by CBI, the Enforcement Directorate registered a case in ECIR No.07/HIU/2017 against the aforesaid accused persons for allegedly committing the offence punishable under Sections 3 and 4 of the Prevention of Money-Laundering Act, 2002 (PMLA). Ever since the registration of the cases in 2017, there were various proceedings seeking bail and number of other proceedings pending filed by Sh. Karti Chidambaram and other accused. Finally, the Delhi High Court granted bail to Sh. Karti Chidambaram in INX Media case filed by CBI on 23.03.2018. Thereafter, the appellant moved Delhi High Court seeking anticipatory bail both in CBI case and also in money-laundering case filed by Enforcement Directorate. On 25.07.2018, the Delhi High Court granted the appellant interim protection from arrest in both the cases and the same was extended till 20.08.2019 – the date on which the High Court dismissed the appellant’s petition refusing to grant anticipatory bail.”

While continuing in the same vein, it is then envisaged in para 9 that, “The High Court dismissed the application refusing to grant anticipatory bail to the appellant by holding that “it is a classic case of money-laundering”. The High Court observed that “it is a clear case of money-laundering”. The learned Single Judge dismissed the application for anticipatory bail by holding “that the alleged irregularities committed by the appellant makes out a prima facie case for refusing pre-arrest bail to the appellant”. The learned Single Judge also held that “considering the gravity of the offence and the evasive reply given by the appellant to the questions put to him while he was under the protective cover extended to him by the court are the twin factors which weigh to deny the pre-arrest bail to the appellant”. Being aggrieved, the appellant preferred this appeal.” 

More importantly, it is then very rightly pointed out in para 55 that, “Of course, while considering the request for anticipatory bail and while perusing the materials/note produced by the Enforcement Directorate/CBI, the learned Single Judge could have satisfied his conscience to hold that it is not a fit case for grant of anticipatory bail. On the other hand, the learned Single Judge has verbatim quoted the note produced by the respondent-Enforcement Directorate. The learned Single Judge was not right in extracting the note produced by the Enforcement Directorate/CBI which in our view, is not a correct approach for consideration of grant/refusal of anticipatory bail. But such incorrect approach of the learned Single Judge, in our view, does not affect the correctness of the conclusion in refusing to grant of anticipatory bail to the appellant in view of all other aspects considered herein.”

Of course, while clarifying that pre-arrest bail should be given only in exceptional cases, it is then made absolutely clear in para 67 that, “Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that the exceptional circumstances exist to resort to that extraordinary remedy.”

Needless to say, it is then clarified in para 69 that, “Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the Article i.e. “…except according to a procedure prescribed by law.” In State of M.P. and another v. Ram Krishna Balothia and another (1995) 3 SCC 221, the Supreme Court held that the right to anticipatory bail is not a part of Article 21 of the Constitution of India and held as under:-

“7. …..We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed:

“We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.”

In the light of this recommendation, Section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.” [underlining added]”

Frankly speaking, it is then conceded in para 70 that, “We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual’s personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights – safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India.” 

While explaining why anticipatory bail should not be given at the stage of investigation and in economic offences, it is then usefully pointed out in para 81 that, “Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.”

Most importantly, while explaining why bail should not be given to P Chidambaram, it is then held in para 82 that, “In a case of money-laundering where it involves many stages of “placement”, “layering i.e. funds moved to other institutions to conceal origin” and “interrogation i.e. funds used to acquire various assets”, it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma, success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the department. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the process of investigation. Though we do not endorse the approach of the learned Single Judge in extracting the note produced by the Enforcement Directorate, we do not find any ground warranting interference with the impugned order. Considering the facts and circumstances of the case, in our view, grant of anticipatory bail to the appellant will hamper the investigation and this is not a fit case for exercise of discretion to grant anticipatory bail to the appellant.”

Finally, it also cannot be lost on us as to what is then held in the last para 83 that, “In the result, the appeal is dismissed. It is for the appellant to work out his remedy in accordance with law. As and when the application for regular bail is filed, the same shall be considered by the learned trial court on its own merits and in accordance with law without being influenced by any of the observations made in this judgment and the impugned order of the High Court.”

What followed next was as we saw how a Delhi court on September 5 sent former Union Home Minister and former Finance Minister – P Chidambaram to custody till September 19 in Tihar jail in the INX Media case even as another court granted anticipatory bail to him and his son Karti in the Aircel-Maxis money laundering case. Special Judge Ajay Kumar Kuhar said that, “Having considered all the facts and circumstances of the case, the nature of offences and the stage of investigation, which is still in progress, the accused is remanded in judicial custody till September 19.” In other words, P Chidambaram will be in judicial custody in Tihar jail for the next fourteen days from September 5 to September 19! After being sentenced, P Chidambaram was taken in a blue police bus to Tihar prison from a special CBI court in Rouse Avenue – a distance of 18 km and was ironically lodged in the same jail No. 7 where his son Karti was locked up for 12 days in the same case last year. This is so because Jail No. 7 usually houses those facing ED cases. This is also the first time that a former Union Finance Minister and also a former Union Home Minister has been sent to Tihar jail! But all is not over for Chidambaram. 

In conclusion, there can be no gainsaying that his vastly experienced legal team comprising of senior lawyers like Kapil Sibal and Abhishek Manu Singhvi are certainly not going to give up so easily! They will certainly strive to again try more harder when his case comes up for regular bail in a trial court! But they too must have now realized that the going would not be so smooth as they had anticipated earlier which they saw for themselves first in Delhi High Court and now in the Supreme Court! 

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.