By Arushi Garg

Recently, the Supreme Court has refused to stay the operation of the Bihar Special Courts Act, 2009 (hereinafter “the Act”), while agreeing to hear the SLP against the Patna High Court judgment upholding the constitutional validity of the Act.

The text of the Act is available here.

The Act provides for the setting up of special courts in order to try the offence specified under Article 13(1)(e) of the Prevention of Corruption Act, 1988, which deals with owning disproportionate assets. Under the Act, assets of public officials can be attached even while the probe is under way if the authorized officer concludes that the assets were obtained as a result of corruption.

This judgment is specifically important in the light of the movement against corruption that has gripped the civil society today. The Jan Lokpal Bill, available here specifies in section 18(v) that once a complaint has been made against a person, a list of all his moveable and immoveable assets is to be made and notified, after which no transfer of these assets will be permissible in law. This is somewhat similar to the authorized officer under the Bihar Special Courts Act, being able to confiscate property which prima facie seems to be the fruit of corruption. Both deal with action taken against the property of the accused before the conclusion of the trial. This is not strictly in consonance with the presumption of innocence.

The primary objection before the High Court was that if it was assumed that there was a prima facie case against the accused, it would prevent him from getting a fair hearing since a bias would be created in the mind of the judge after confiscation had been carried through on the basis of this assumption. This was rejected by the Court since the authorized officer (who decides on the confiscation) is a distinct authority from the judge who would be presiding over the main issue. This is also true in case of the Lokpal Bill. The Lokpal, which is supposed to decide upon the question of freezing the assets of the accused, is a distinct authority from the judge before whom prosecution will ultimately be initiated.

The second objection was that there was no way to appeal the decision for confiscation; but the High Court held that the jurisdiction of the High Court as well as the Supreme Court remained under Article 226 and 32 respectively, so the procedure remained just. The same can be said of the Jan Lokpal Bill.

While the Supreme Court is yet to rule on the issue, it seems unlikely that such provisions suffer from legal infirmity. But it seems the government is following the progress of this case closely before reaching a final decision on the introduction of such a provision into the Lokpal Bill.

Apart from the other challenges to the Act, another aspect of the judgment that stands out is the strange manner in which the High Court dealt with the provision relating to the return of the confiscated property. It was claimed that the provision allowing the State to return the price of the property (with 5% interest) instead of the property confiscated could inflict “humliation and suffering” on the accused and should be struck down on the ground of Article 21. The High Court opined that this cannot be done without seeking a special order from the High Court or the Supreme Court, and if the property could not be returned, then the interest paid on the compensation should not be 5% but whatever the prevailing bank rate is. The most the High Court could have done is to strike down the offensive provisions, and not substitute the number decided upon by the Legislature with whatever the judges thought was more just.