The Hindu : National : “Executive cannot take over judicial functions”

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“Executive cannot take over judicial functions”

J. Venkatesan

New Delhi: “It is necessary that the court may draw a line which the Executive may not cross in their misguided desire to take over bit by bit the judicial functions and powers of the State exercised by duly constituted courts,” the Supreme Court has said.

“While creating a new avenue of judicial forums, it is the duty of the government to see that they are not in breach of the basic constitutional scheme of separation of powers and independence of the judicial function,” said a Bench comprising Chief Justice K.G. Balakrishnan and Justices L.S. Panta and P. Sathasivam.

The Bench, while giving its nod for proposed provisions, directed the Union of India to constitute the Appellate Tribunal under the Prevention of Money Laundering Act within six months. The object of the Act is to prevent and punish offences of money laundering and to constitute an appellate authority to look into the role of banking companies, financial institutions and intermediaries.

Process challenged

It was disposing of a public interest litigation petition filed by advocate Pareena Swarup challenging the selection process for appointment of the chairperson and a member of the adjudicating authority and the appellate tribunal and certain other provisions intended to vest judicial functions with the Executive.

During the hearing, the petitioner and the government came out with amendments to the law to restore the powers to the judiciary and the Bench approved the proposed amendments.

Writing the judgment, Justice Sathasivam said: “We agree with the apprehension of the petitioner that the provisions of the Act [in the present form] are so provided that there may not be an independent judiciary to decide the cases under the Act but by the Members and Chairperson to be selected by the Selection Committee headed by the Revenue Secretary.”

The Bench said: “The Constitution guarantees a free and independent judiciary and the constitutional scheme of separation of powers can be easily and seriously undermined, if the legislatures were to divest the regular courts of their jurisdiction in all matters, entrust the same to the newly created tribunals which are not entitled to protection afforded to regular courts.”

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