HC cannot quash legal provision without hearing state — SC

NEW DELHI, DEC 27: The Supreme Court has ruled that a High Court cannot declare a particular provision of law as null and void without aff...

NEW DELHI, DEC 27: The Supreme Court has ruled that a High Court cannot declare a particular provision of law as null and void without affording an opportunity to the state to address it on the question of law.

Setting aside a Gujarat High Court order declaring as null and void a provision of the Vigilance Manual relating to granting of sanction by the state for prosecution of public servants, a division bench comprising Justice U C Banerjee and Justice K G Balakrishnan in a recent judgement said "the High Court by itself cannot usurp the function of the state."

"No notice, however, was sent to the Advocate General of the state before such a declaration was effected and the same thus cannot but be termed to be not sustainable", the bench observed.

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The order of Gujarat High Court giving certain directions to the state regarding granting of sanction for prosecution of eight IAS officers in corruption cases was challenged in two appeals before the Supreme Court on the grounds that the High Court was "harsh" in its language and the order was bad in law.

Taking a serious note of the "harsh" language used in the High Court judgement, the apex court expunged the observations saying "use of temperate language and tolerance are the two basic factors in any judicial approach".

However, the apex court bench referred the matter to the Central Vigilance Commission (CVC) for dealing with the sanction of prosecution of these officers and take appropriate action within a period of one year.

The Supreme court noted that the judgement under appeals delivered by the appellate bench of the High Court on the basis of a letter written by the then In-charge of the Anti Corruption Bureau and the resultant effect of which was the declaration of Para four of the vigilance manual as ultra vires.

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It said though corruption cases against some influential public servants ought not have been withdrawn at the instance of the Home Department without any basis, the "High Court cannot usurp the function in the manner as it has in the matter, rather forward the same to such of the institutions as are available in the country for such inquiries".

As regard the harsh language used, the apex court said "the language used by the High Court is rather strong and restraint and use of temperate language ought to be the basic criteria in the judicial approach".

"The violation of the Principle of natural Justice also have been contended by reason of the fact that no notice was sent in the matter for the purposes of explanation neither any explanation obtained", it said.

The High Court in its order had observed among other things that in case of failure on part of the authorities to grant sanction for prosecution against a public servant within two months of receiving the relevant papers, contempt proceedings could be initiated against them in the absence of reasonable explanation.