Union of India fails to justify modification; review under Article 137 referred to third judge for decision

SC considered an application by the Union of India seeking modification of its earlier order concerning investigation into suspected illicit foreign assets and alleged violation of separation of powers. The Court held that the Union failed to demonstrate any error warranting exercise of its review jurisdiction under Article 137 or to justify treating the modification plea as a review petition to be heard in open court. The application was therefore not entertained as a review. In view of differing opinions between the two Judges on the Bench, the matter was directed to be placed before a third Judge for resolution.

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Issues Involved:
1. Inaction of the Government in recovering money deposited by Indian citizens in foreign banks.
2. Appointment of a Special Investigation Team (SIT).
3. Maintainability of the interlocutory application filed by the Union of India for modification of the order.

Issue-wise Analysis:

1. Inaction of the Government in recovering money deposited by Indian citizens in foreign banks:
The petitioners filed Writ Petition (Civil) No.176 of 2009 against the Union of India and other respondents, alleging inaction in recovering large sums of money deposited by Indian citizens in foreign banks, particularly Swiss Banks. They sought several reliefs, including the disclosure of facts by the respondents and ensuring that the investigation outcomes are not suppressed or delayed. The Court noted the complexity of the issues, which required expertise and coordination among various agencies.

2. Appointment of a Special Investigation Team (SIT):
On 4th July 2011, the Court directed the formation of a Special Investigation Team (SIT) to investigate the matters concerning unaccounted monies of Hassan Ali Khan and the Tapurias. The SIT was to be composed of high-level officials from various departments and be headed by two former Supreme Court judges, Justice B.P. Jeevan Reddy and Justice M.B. Shah. The SIT was tasked with investigating, initiating proceedings, and prosecuting issues related to unaccounted monies in foreign bank accounts by Indians. The SIT was also responsible for preparing a comprehensive action plan to combat the generation and stashing of unaccounted monies.

3. Maintainability of the interlocutory application filed by the Union of India for modification of the order:
The Union of India filed I.A. No.8 of 2011, seeking modification of the order dated 4th July 2011, arguing that the order impinged upon the doctrine of separation of powers. The application contended that the formation of the SIT was beyond the jurisdiction conferred on the Court under Article 32 of the Constitution. The petitioners objected, arguing that the application was essentially a review petition disguised as a modification application and was not maintainable.

The Court considered the maintainability of the application. It noted that although the application appeared to be a review petition in disguise, the Supreme Court has inherent powers to make orders necessary for the ends of justice, as preserved in Order 47 Rule 6 of the Supreme Court Rules, 1966. The Court referenced previous judgments, including A.R. Antulay v. R.S. Nayak and S. Nagaraj v. State of Karnataka, which supported the exercise of inherent powers to correct errors and prevent injustice.

Separate Judgments:
One judge opined that the application was maintainable, emphasizing the Court's inherent powers to ensure justice. However, another judge disagreed, stating that the application was not maintainable as it sought to reopen the matter on merits, which should be addressed through a review petition. The differing views led to the matter being referred to the Chief Justice of India for reference to a third judge.

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