Text of the opinion of Justice JS Verma, Former Chief Justice of India


 

 

A central requirement for upholding the rule of law is that there should not be any executive interference in the independence and integrity of the judicial process.

The rapid expansion of the power and jurisdiction of quasi judicial bodies raises new challenges in this regard. Great caution is called for on the part of the Government, the judiciary and society to ensure that the independence of quasi judicial bodies is fully protected and that executive power is not misused to interfere with their decision making, their independence and their integrity. It is essential to ensure that quasi judicial orders should not be subject to review or interference by executive authorities that have neither the power nor the requisite expertise to review, alter or nullify quasi judicial orders. Quasi judicial orders should be subject to review only by lawfully authorised tribunals or by courts, based on well established principles of law.
 
The recent decision SEBI board to review and declare as "non-est" two quasi judicial orders of SEBI violates established legal and Constitutional principles. These quasi judicial orders may be reviewed only by a judicial forum with requisite jurisdication, at the instance of a petitioner with standing to seek relief.
 
The decision to declare these quasi judicial order as void is meaningless in any absolute sense. Its meaning is relative, depending upon the courts' willingness to grant relief in any particular situation. Even if a decision is 'void' or a 'nullity', it remains in being unless and until some steps are taken before courts to have it declared void.
 
Lord Radcliff said in Smith v/s East Ellse, 1956 A.C. 736 at 769
 
"An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset.
It will remain as effective for its ostensible purpose as the most impeccable of orders".
 
The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council, without distinction between latent and patent defects. Supreme Court of India has taken the same view.
 
The order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue.
 
The court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, … or for some other legal reason. In any such case, the 'void' order remains effective and is, in reality, valid. (see pg. 341-344, Administrative Law, 7th Edn., by Wade and cases in footnote).
 
All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction ( de Smith, 5th Edn.- See Chapter 5-048 at pg. 259-260 and cases in footnotes 17&18).

December 5 2009                                                                    Justice J S Verma
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