SAC’s growing assertiveness disturbs Govt, suo-moto powers challenged in SC

Mohinder Verma
JAMMU, Nov 16: Perturbed over State Accountability Commission’s assertive role in ensuring accountability of public functionaries, the PDP-BJP Coalition Government has again entered into legal battle with the Commission by challenging its powers to initiate suo-moto proceedings in the Supreme Court.
However, this step has been initiated one and half year after the landmark judgment of Division Bench of the State High Court, which had held the Accountability Commission as superior authority akin to a constitutional authority with the objective of keeping the public functionaries within the bounds of law.
Official sources told EXCELSIOR that on the directions of the Minister for Law Abdul Haq Khan a Special Leave Petition (SLP) was recently filed in the Supreme Court challenging the judgment of the Division Bench of the State High Court whereby it was held that Commission has powers to initiate suo-moto proceedings against the public functionaries.
“An application has also been moved for condonation of delay in filing SLP against the judgment of highest court of Jammu and Kashmir”, they said, adding “as per the provisions of law, challenge to any judgment in the higher court can be thrown within a period of 90 days but in this case the SLP has been filed one and half year after the judgment of Division Bench”.
They informed that Supreme Court will first entertain the application for condonation of delay and then take up the SLP. “Generally, Apex Court entertains the application seeking condonation of delay when any Government is in petition”, sources said while disclosing that the SLP and the application were listed before a Bench of the Apex Court some days back but because of paucity of time the same could not be taken up.
According to the sources, who are privy to the contents of the Special Leave Petition (SLP), the Government has mainly taken the stand that Regulation 9 of Jammu and Kashmir Accountability Commission Regulations, 2005 is ultra vires the Act of 2002 and has been framed beyond the powers given to the Commission under Section 31 of the Act.
“It seems that Government is perturbed over the State Accountability Commission’s assertive role in achieving the intent of the legislation whereby it was established otherwise there was no justification behind challenging the suo-moto powers”, sources said, adding “the Accountability Commission has been constituted to accomplish the ultimate societal good of having a corrupt free society. It is believed by several legal experts that the legislative intent and purpose underlying the Act of 2002, would be defeated than being achieved in case the powers to initiate suo-moto proceedings are denied to the Commission”.
This is for the second time that suo-moto powers of the Accountability Commission have come under challenge. First these powers were challenged before the Single Bench of the High Court, which vide judgment dated January 4, 2013, had held Regulation 9 of the J&K Accountability Commission Regulations, 2005 as ultra vires the Act of 2002 while striking down the same.
The judgment of the Single Bench was challenged by the Accountability Commission before the Division Bench of the State High Court, which vide judgment dated February 1, 2016 had held that the Accountability Commission has the powers to initiate suo-moto proceedings against the public functionaries.
The DB had held that the Accountability Commission, although created by Statute, is not mere a statutory authority but a superior authority akin to a constitutional authority to keep the functions of the highest constitutional authorities in the State within the bounds of law and to provide an institution to the citizens of Jammu and Kashmir for highlighting their just and lawful grievances/complaints in respect of actions of the public functionaries.
The DB had also gone to the extent of saying that Accountability Commission in essence resembles a constitutional authority and in legal sense wears constitutional complexion and radiates constitutional flavor. “Though it has to act in accordance with the Statute but its functioning cannot be circumscribed or limited by the Statute as such this Commission cannot be denied the powers to initiate suo moto action for achieving the purpose of considerable public importance”, reads the judgment of the Division Bench.
“The Statutes are to be interpreted for securing public good for which the laws are enacted. For proper interpretation of the Statute one has to delve deep in it to ascertain its real purpose and has to provide legal aura to it, which makes it purposeful and meaningful”, the DB had further held, adding “by this process of interpretation, the Accountability Commission is held to be not a mere statutory authority but a superior authority akin to a constitutional authority and by this reasoning Commission can, in law, initiate suo moto proceedings notwithstanding the fact that no such power is conferred on it by the Act of 2002”.

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