Amaravati Land Scam Case Hearing : SC Says Judicial Review Power & Govt's Power To Reconsider Previous Govt Decision Not Comparable

The Bench was considering an SLP filed by the Andhra Pradesh government against a common interim order on September 15, 2020 by the Andhra Pradesh High Court which stayed the government's decision to probe into the conduct of the previous government on allegations of corruption including the Amaravati land scam matter.

"We are not on merits but the High Court's reasoning. The power of Courts to review cannot be compared with government's power to investigate", a Bench of Justices MR Shah and MM Sundresh observed.

In its 2020 order, the High Court had said that the decision of the executive amounts to 'review while adding that no power of review can be exercised in absence of a specific statute.

Countering this, Senior Advocate Abhishek Singhvi appearing for the petitioners argued that the High Court had completely misguided itself by drawing an equivalence between the Court's power of judicial review and the Executive's power to investigate. The Executive draws its powers from Article 154 and 162 of the Constitution.

"This analogy is completely misplaced", he said.

While taking the Court through the 2020 order in question, he contended that all the judgements relied upon by the High Court were totally inapplicable.

He also took objection to the High Court's reasoning that successive governments cannot re-look at the projects or policies of an erstwhile government for mere political reasons.

The High Court also said that it had the power to review policy decisions in order to check unfettered discretion of the executive.

"Decisions of the government can be reviewed but not be given permanent injunction from fact finding", Singhvi argued before the Bench today.

The senior counsel also relied on the Supreme Court decision in Jagannath Rao case which held that the existence of political rivalry in itself is not sufficient to hold that the appointment of a Commission of Inquiry is illegal.

"The result of this is that a government cannot initiate an executive order of fact finding merely because it is a succeeding government", he argued.

At this point, the bench asked,

"SIT was constituted for fact finding or investigation?

"For investigation to decide whether criminal action is to be taken or not, the advocate replied.

"In the terms of reference, SIT has power not only to investigate but also to conclude investigation", Justice Sundresh pointed out.

"Conclude doesn't mean to come to a verdict against you. It's not that. Nothing has happened. They've filed a report. If there's a stay on this then where is the power of the State to inquire? It is throttling of any inquiry, investigation at the threshold….Your Lordships are asked to throttle any inquiry, to stop any investigation before it starts? That's what is camouflaged into these doctrines", it was clarified, in response.

He further questioned how a blanket stay on the inquiry could done in this manner.

"It's highly premature. What you are saying is, don't inquire, nothing. Remit is extremely narrow. How can this be stayed in a blanket manner like this?"

Senior Advisor Siddharth Dave, vehemently opposing these arguments, submitted that the motive was to add "dirt" on the previous government.

"It a case of regime revenge after the change of government. The motive of SIT is not just fact finding. It's to have some way to connect them to criminal cases"

"The enquiry was with respect to wastage and misuse of money, correct? Suppose any transaction happens with malafide intentions, that also needs to be inquired into. We are not on individual FIRs….", Justice Shah said.

Dave said that apart from not registering FIRs, the notification which constituted the SIT did not specify the allegations that it would be investigating.

"If there is a cognizable offence, they can register an FIR. Nothing stops them from doing so. This is a roving and fishy inquiry. They constitute an SIT. There's nothing in notification to show what offences are going to be investigated. Investigate what?"

The High Court had stayed two government orders by way of its 2020 order. By the first GO, the State Government (YSRCP) had constituted a Cabinet Sub-Committee to review various policy decisions, programmes, etc., undertaken by the erstwhile Government (TDP) during their tenure, owing to the widespread allegations of corruption. Especially with respect to projects such as the Capital Region, Polavaram.

The Sub-Committee furnished a report with preliminary findings of corruption and fraudulent transactions perpetuated by individuals involved in the erstwhile government in relation to land transactions pertaining to the Capital Region.

Consequently, after the Second GO was issued, a SIT was constituted to conduct an investigation into the allegations.

"A successor government may investigate allegations and charges against erstwhile government and the existence of political rivalry does not vitiate any enquiries conducted by the successor government", the petition contended.

According to the plea, the High Court cannot review the Impugned GOs since they are not unreasonable or arbitrary, and are a mere policy decision regarding exercise of executive power.

Furthermore, there is no bar against the complainant and investigating officer being the same person and there is no default assumption of bias in those circumstances, the plea added.

"Interference with constitution of an SIT by the HC is a violation of separation of powers, especially since the constitution of the SIT did not offend any statutory / constitutional provisions", the plea submitted.

The hearing in the matter will continue today.

Case Title: State of Andhra Pradesh v. Varla Ramaiah | SLP(C) No. 11912-13/2020