Indian Kanoon - Search engine for Indian Law

The rival submissions of Counsel on either side can, conveniently, be examined under different sub-heads.

I. ARE THESE WRIT PETITIONS MAINTAINABLE?

Sri T. Niranjan Reddy, Learned Standing Counsel for the CBI, would submit that in view of the directions of the Supreme Court in its orders dated 26.10.2010 and 04.11.2011, and the undertaking given by the petitioners and their counsel to the Supreme Court, the remedy which the petitioners may have is only to approach the Supreme Court, and the Writ Petitions as filed are not maintainable. While entertaining an objection as to the maintainability of a writ petition, the Court should bear in mind that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature, and is not limited by any other provisions of the Constitution. (ABL International Ltd v. Export Credit Guarantee Corporation of India Ltd1). The power of judicial review, vested in the High Courts under Article 226, is an integral and essential feature of the Constitution, constituting a part of its basic structure. (L. Chandra Kumar v. Union of India2). Article 226 of the Constitution is couched in the widest possible terms. The power of the High Court thereunder can be exercised when any action is against any provision of law. (K. Venkatachalam v. A. Swamickan3). There are no unreviewable discretions under the constitutional dispensation. The overall constitutional function, to ensure that constitutional/statutory authorities function within the sphere of their respective constitutional/statutory authority, is that of the Courts, including the High Court. (Election Commission of India v. Union of India4). The function of determining whether the act of a statutory functionary falls within the legislative conferment of power is a matter for the Court. (Epuru Sudhakar v. Govt. of A.P.5; Kehar Singh v. Union of India6). If exercise of the power of Judicial review under Article 226 cannot be barred even by a Constitutional provision, as it forms part of the basic structure of the Constitution, it does not stand to reason that the power of judicial review can be barred by Legislation - plenary or subordinate. It would, therefore, be difficult to hold that this Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, should not even entertain a Writ Petition of this nature or that the Writ Petitions as filed are not maintainable.