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We Should Get All Our Brilliant Lawyers Abroad Back To India

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falinariman

Legal Era in conversation with India’s most distinguished constitutional lawyer, the legendary Fali Sam Nariman...

Legal Era (LE): You have been Senior Advocate of the Supreme Court of India since 1971. What has the experience been like?

Fali Sam Nariman: Fantastic! A more detailed answer to that question would fill a book. In fact, it has already filled a book! My Autobiography (“Before Memory Fades”), the first edition of which was published in 2010, is currently in its seventeenth edition.

Briefly - very briefly - my experience is set out below:

I joined the Bombay Bar in November 1950.

A year later, I joined the Chambers of the greatest Advocate (of the time) in Western India, Sir Jamshedji Kanga (JBK).

Despite all physical inconveniences of a small Chamber, accommodating such a large number of advocates – many of them already in top practice – the days I spent in JBK’s Chambers at the ground floor of the High Court building were the happiest years of my early professional life. We had the most amazing leader in Sir Jamshedji Kanga – all 6 feet 4 inches of him – but much taller in heart and in mind. At 6:45 in the evening on almost every working day, when the conferences of the busy seniors were over, we would all gather around Sir Jamshedji’s table and he would regale us with stories of old. We loved him because he was so exuberant – always childlike, never childish! Kanga’s Chamber was a busy one. It was also a very happy Chamber where there was much fun and laughter.

During my early days at the Bombay Bar, I came to know and learn a great deal from the professional giants by just listening to them and watching them perform. And in my time, we were fortunate to have judges who were considerate and kind to juniors. Amongst them were Justice N. H. Coyaji, Justice Sunderlal T. Desai, and Justice Kantilal T. Desai, not to forget Chief Justice M. C. Chagla, who (as Judge) was in a class by himself!

In 1972, the then Law Minister of the Union of India offered me the post of Additional Solicitor General of India, a post which had been abolished way back in 1967 and which had just been revived.

I was young and ambitious, and I readily accepted (‘too readily’ had been my wife’s laconic comment!). But then, I had already declined one good offer and did not want to refuse another: It was in late 1966 that Justice Kotwal, Chief Justice of Bombay, pressed me to accept a judgeship at the Bombay High Court. In those days, an offer of judgeship to anyone under 40 was taboo without express clearance from the Chief Justice of India. I was nearly 38 and Justice Kotwal told me that he had sought and obtained the necessary permission. He read out to me Justice J. C. Shah’s letter to him communicating Chief Justice Subba Rao’s approval to my being asked. But it was with great regret that I was compelled to decline the offer – for financial reasons. In those days, the monthly stipend of a high court judge had remained stationary since I joined the Bar in 1950 viz. `3,500. This amount was insufficient to support, in the same style of living, my immediate family of three (my wife and two children) and my dearest grandmother who was dependent on me. So, despite Chief Justice Kotwal’s kind persuasion, I simply could not afford the luxury and ‘prestige’ of being a high court judge!

For me, accepting appointment as a law officer of the Union of India was different from declining the offer of a place on the bench of the Bombay High Court six years before. Although it meant shifting to Delhi and private practice was forbidden, a law officer’s remuneration by way of stipulated fees (`1,040 for appearance in each special leave petition and `1,680 per day for final hearings of appeals and writ petitions) did, at the time, add up to a comfortable figure. Besides, appearing for public-sector corporations and state governments for ‘normal fees’ was not prohibited. ‘Normal fees’ were hardly ever more than double the fees stipulated for appearances in matters of the Union of India. C. K. Daphtary, distinguished former Attorney General who had reverted to private practice by the time I went to Delhi, ticked me off for accepting the post of ASG. He told me, ‘Fali, you have made a grave mistake … with this government, you will find it a thankless job.’

The reaction of a trusted member of our household staff to my appointment as ASG in Delhi was no different than C. K. Daphtary’s. Babu Kalidas had worked with us for many years – in fact, he always ‘worked’ as if he had long since retired from active service. Babu did not react with great enthusiasm when my wife told him that I had been appointed Additional Solicitor General of India. He screwed up his face and said, ‘Chalo (!) vela, vela magistrate thaye jai to saroo’ (Well, it will be good if he soon becomes a magistrate!).

I am frequently asked by law students around the country as to how a lawyer must prepare for and argue important cases. The only appropriate answer I can offer is, ‘As best as you can.’ Robert H. Jackson (who was Solicitor General of the United States in the late 1930s), after he became an Associate Justice of the US Supreme Court (1941 to 1954), wrote that as a practising lawyer, he found that he made three arguments in every case: the one he planned (‘logical, coherent, complete’); the one he presented (‘incoherent, disjointed, disappointing’); and the one he did not make (‘the utterly devastating argument that I thought of after going to bed that night!’) – After 67 years in active practice as an advocate, I sometimes still experience the same feeling!

LE: You have been instrumental in the development of Indian Constitutional Law. Has the Constitution of India withstood the test of time?

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Fali Sam Nariman: I believe it has, despite many hiccups! For instance, one of the lessons of the Internal Emergency (of June 1975), which I hope we have learnt, is not to rely on constitutional functionaries. These functionaries failed us – ministers of government, members of Parliament, judges of the Supreme Court, even the President of India who signed the Proclamation of Emergency virtually at the behest of three senior lawyer-politicians of the Congress Party (then in power at the Centre). With the Basic–Structure–doctrine first pronounced by a majority of the Court (7:6) in the Keshvananda Bharati case (1973) and later cemented in the case of Raj Narain v. Mrs. Indira Gandhi (1975), the chances of constitutional functionaries failing us have now (hopefully) receded. But we must keep our fingers crossed. All of us – lawyers and judges – must never forget the lessons of the Internal Emergency of June 1975.

LE: You were a President-appointee Member of the Rajya Sabha between 1999 and 2005. What was the experience like? You’ve often said that it is not good for the country for any political party to have a majority in Parliament. Why?

Fali Sam Nariman: The happiest years of my professional life were in the Chambers of Sir Jamshedji Kanga. And, next to those years were my six years (1999–2005) in Parliament. I enjoyed the confidence of all members at all sides of the House; they always patiently listened to me, though they did not always accept what I said!

My days as a parliamentarian, I can quite frankly say, have been a rich experience and I have learned a lot. People often used to ask me how I fared as a member: ‘How could an intellectual like you fit in with a host of others?’ they would contemptuously enquire. My response would be that “The Rajya Sabha was and is a microcosm of the nation, where representatives from various sections of society mingled together, spoke passionately about problems that concerned them, and were generally tolerant of one another, although this spirit of tolerance may not have reflected outside Parliament – in the rest of the country!”

My one observation about Indian politics and Indian politicians is that it is only when our Parliament and our politics are no longer dominated by one single political party that India will once again become a country where all points of view are freely expressed and sympathetically heard.

LE: As a Member of the Rajya Sabha, you suggested that before investigating allegations of corruption against senior officers, the CBI should get approval from the Central Vigilance Commission and not the Government. However, your proposal was rejected. Don’t you think all political parties are united in shielding corrupt officers?

Fali Sam Nariman: I am compelled to believe that all political parties are united in shielding some favorite coterie of reputedly ‘corrupt’ officers!

I recall that during the debate on the Central Vigilance Commission Bill, 2003 in the Rajya Sabha, my friend Dr P. C. Alexander, M.P., spoke with some anguish. He said:

“When I entered the Civil Service way back in 1948, at the beginning of our Independence, my worry was whether my tehsildaar would be corrupt, my sub-inspector would be corrupt, my bench clerk in my court would be corrupt. I could never imagine that my senior officers would be corrupt. I could never imagine when I became a senior officer that I would ever become corrupt.

Under this Bill, we have given senior officers protection. Government sanction is needed before even an inquiry can be started against them.”

Dr Alexander characterized this clause (in the Bill) as the ‘Enemy Number One’. And former Central Vigilance Commissioner, N. Vittal, had already gone on record to say that the provision was ‘vicious’. What is most disturbing to me, however, is the polity in which we live and lived. What I regret is not that the government of the day pushed through the Central Vigilance Commission Bill, 2003 (most of whose other provisions were unexceptionable) or that the minister did not accept my proposed amendment to the ‘single-directive-clause1 What hurts me the most is that the opposition then in the Rajya Sabha (later, in government) – in August 2003 – was in an effective position to ensure that the obnoxious ‘single directive’ was not passed, but the opposition also approved the Bill in its entirety! With adult franchise, we not only get the government we deserve, but also appear to get our just political desserts!

LE: You have mentioned that the two most influential judges of the Supreme Court so far have been Justice Subba Rao for his political agenda and Justice Krishna Iyer for his social agenda. Please substantiate.

Fali Sam Nariman: It has been said that Subba Rao (and the Subba Rao Court) was ‘rightist’, and Justice Krishna Iyer (and those of his school of thought) was ‘leftist’. This is a superficial characterization indulged in by those who are obsessed with ‘isms’. Besides, it is not even correct. Each had many similar and abiding major concerns.

The abiding concerns of the Subba Rao Court were underlined (coincidentally, but characteristically) by the first and the last case in which this great judge presided as Chief Justice. In the first case, he firmly upheld the independence of the judiciary by ensuring that the subordinate judiciary should not be selected except from the judicial service. In Chandra Mohan’s Case (1966), it was contended for the State that it was permissible for the Governor (which meant the State Government) to frame rules permitting the recruitment of judges in the subordinate judiciary not only from advocates and pleaders of requisite standing but also from members of the executive departments discharging revenue or ministerial functions. Chief Justice Subba Rao (in this first case in which he presided as chief justice) said that it was unreasonable to attribute to the makers of the Constitution who had so completely provided for the independence of the judiciary an intention to destroy it by an indirect method! ‘What can be more deleterious for the good name of the judiciary than to permit at the level of District Judges recruitment from the executive department?’ he asked and then declared the Uttar Pradesh Higher Judicial Service Rules framed by the State Government as unconstitutional.

In the last case over which he presided (Satwant Singh vs. Assistant Passport Officer – also known as the ‘Passport case’), Chief Justice Subba Rao speaking for a majority in a bench of five judges held that the expression ‘personal liberty’ in Article 21 encompassed a right of locomotion, of the right to travel abroad. Every person living in India has a fundamental right to travel, even outside India, and the refusal of the government to give him a passport without a valid law - prescribing reasonable restrictions - was held to be an arbitrary exercise of executive power, infringing the Equality Clause of the Constitution. In this last case, Subba Rao had, with the help of Justices J. M. Shelat and C. A. Vaidialingam (who concurred with him), converted his minority opinion in Kharak Singh (1964) as the declared law of the land!

LE: You had said at one point that Soli Sorabjee became the Attorney General of the Vajpayee government after you declined the post. Sorabjee said that you got the Union Carbide brief after he declined to take it. Was this just a rivalry between two eminent Parsi jurists?

Fali Sam Nariman: Our careers in the profession – Soli Sorabjee’s and mine – have run along almost parallel lines – though we have not always seen eye to eye. I was two years his senior in the Chamber, but he was two years my senior in marriage! (He got married before I did.)

Being older than him, I became a law officer first, but then resigned during the 1975 Emergency. But Soli has to his credit not just a stint as Solicitor-General of India but as Attorney-General of India as well – not once but twice.

Over the years, we have been rivals in the rough and tumble of the legal profession, and now for many, many years, in the evening of our lives, we have remained friends!

LE: You received a lot of flak for appearing for Union Carbide in the Bhopal gas leak case. Given your credentials as a defender of human rights, do you, in retrospect, wish that you hadn’t accepted the brief?

Fali Sam Nariman: For a truthful and effective answer to the question, you must read Chapter 10 (“The Bhopal Case”) in my Autobiography (“Before Memory Fades”).

As to whether, in retrospect, I wish I hadn’t accepted the brief of Union Carbide Corporation in the Civil Litigation arising out of the Bhopal gas tragedy, my answer is rhetorical - a stanza from the Rubaiyat of Omar Khayyam – a world famous poem – translated by Edward Fitzgerald:

Moves on: nor all thy Piety nor Wit, Shall lure it back to cancel half a Line Nor all thy Tears wash out a Word of it.”

LE: In an earlier interview, you had said that the Supreme Court must oversee the resolution of the Babri Masjid dispute. Why?

Fali Sam Nariman: My regret has been that in the first round of the Babri Masjid case in 1994, a five-judge bench of the Supreme Court (on this point) unanimously refused to answer pertinent questions in the Presidential Reference saying that it had to be decided in the civil cases filed (and then pending) in the High Court of Allahabad. In 2018, we have now come full circle – the Allahabad High Court has decided the dispute in the civil cases and the ball is back again in the Supreme Court – in appeal from the decision of a three-judge bench of the Allahabad High Court. This was and still is a nation-shaking case for India, and hence, the earlier the Supreme Court had put its mind to the factual dispute, the better it was (and is) for all citizens.

LE: In December 2009, the Committee on Judicial Accountability stated that it considered that recommendations for judicial appointments should only be made after public debate, including review by Members of the Bar of the affected high courts. This statement was made in relation to the controversy over the appointment of Justices C. K. Prasad and P. D. Dinakaran. You were among the legal luminaries who signed the statement. Please comment.

Fali Sam Nariman: Since December 2009, there has been far too much disputation at the Bar, and my comment to this question is that what I stated then is not precisely what I think now!

LE: It was you who argued in the famous case of the Supreme Court AoR Association in which the Supreme Court took over the appointment of judges in the higher judiciary. However, in an earlier interview, you said that you regret you won that case. Why?

Fali Sam Nariman: Here again, I must press upon you to read Chapter 16 of my book ‘A Case I Won – But Which I Would Prefer to Have Lost’.

The principal point I made in that Chapter was that:

Once systems are in place and the method and procedure of appointment is known, the confabulations within the Judiciary must be left to the justices without the intruding eyes of members of the public or the media. The problem today – as also the problem that was there yesterday and in the days before – is that in public perception, not enough time and attention appear to be given by successive ‘collegiums’ to the important task of recommending judges for appointment to the high courts and to the Supreme Court, simply because the judges at the top (the first three or the first five depending on whether the recommendations to the government for appointment are to a high court or to the Supreme Court) are far too busy in the important constitutional task entrusted to them – to decide the largest possible volume of cases that keep coming up to the Highest Court for final adjudication: a supremely important task!

LE: You represented the Gujarat government in the matter of the Narmada rehabilitation but resigned shortly after the attacks on Christians in the area and burning of copies of the Bible. Please comment.

The chances of constitutional functionaries failing us have now (hopefully) receded. But we must keep our fingers crossed. All of us – lawyers and judges – must never forget the lessons of the Internal Emergency of June 1975

Fali Sam Nariman: Prior to December 1998, I was instructed and was appearing for quite some time as a Senior Counsel in the Supreme Court for the State of Gujarat in a public interest litigation (PIL) filed on behalf of tribals who were displaced (and to be displaced) by the rising height of the Narmada Dam in Gujarat. The principal question in this PIL was whether the indigenous people of this country had an inherent right to live wheresoever they chose and in the manner in which they had been living for centuries, or whether and to what extent could they be compelled to shift to higher locations in wider public interest. Linked to all this was the question of whether there were adequate measures of rehabilitation.

While the PIL was pending in the Supreme Court of India, the then Chief Minister of Gujarat, Keshubhai Patel, called on me at my residence in New Delhi. It was a courtesy call, but since a few days before I had read from press reports that Christians in certain parts of Gujarat were being harassed and their Bibles were being burnt, I told him that this action (though having nothing to do with the Narmada case) was something which was a total anathema to me, and I would like to see this stopped. He assured me that it would be, and in fact, he said that really there was nothing in it.

A couple of months later, since there was some policy decision to be taken-up about improved measures of rehabilitation in the Narmada case, the same Chief Minister again called on me. Meanwhile, the situation of minorities in the government appeared to have worsened, according to press reports. The media had reported that not only Bibles, but now even churches were being destroyed and desecrated in various parts of Gujarat. I was extremely annoyed and told the Chief Minister that unless conditions in Gujarat improved, I would have to do what I thought was correct in the circumstances.

Again came more reassurances – both orally and in writing – but all to no effect, and then, ultimately in December 1998, since nothing was done at all by the then Gujarat government to alleviate the plight of the minorities, particularly the Christians, I returned my brief and said that I would not appear for the State of Gujarat in this or in any other matter. This caused a great furore!

Besides the purely egoistic, there is a point in my recalling all this. The point is that but for the revelations by the media – that is its responsibility as a free press to disseminate information which is of concern to the general public – I would have been ignorant and would not have known, living in the capital city of Delhi, about what was happening in remote parts of Gujarat. It was the press which brought these attacks on minorities to light. And I think that it disclosed a very important aspect of press responsibility or (if you don’t like the word ‘responsibility’) of press ethos, i.e., to always lean on the weaker side and to effectively perform the role of an opposition to the government – whether at the Centre or in the State. To me, this is one of the finest attributes and an essential role of a free press. And this is why when dictatorial governments take over in other countries and parliamentary systems of governments are given a go-by, it is the press that is always the first victim! (Next are the practicing lawyers!)

LE: At one point, Justice Markandeya Katju made damaging allegations against the judiciary and the rampant disorder running through the collegium system. Please comment.

Fali Sam Nariman: I suggest you enquire from the Judge who made these allegations.

LE: Leaving aside Justice Katju’s allegations, there has always been criticism that more often than not, vendetta and bias govern the working of the collegium. Is this true?

Fali Sam Nariman: I do not believe it is true, although even responsible people (sometimes) do float rumors to this effect! If vendetta and bias permeate the ‘collegium’ system (which I doubt and deny), it must necessarily affect decisions on the judicial side, and I do not at all believe that judicial decisions in the country’s Highest Court are influenced by either vendetta or bias. If God forbid they ever are, we will have to recruit our judges from outside India: a horrible thought!

LE: The collegium has also been criticised for leaving no room for the executive to play a role in the appointment of judges to the higher judiciary. What are your views about this?

Fali Sam Nariman: The justification for the ‘collegium – system’ is the Nine-Judge- Bench decision in the Second Judges Case (Supreme Court Advocates-on-Record Association & Others vs Union of India – 1993(4) SCC 441). Under this decision, the Executive does have a role, but only a limited role, not the role initially propounded in the First Judges case, by a seven-judge bench of the Supreme Court of India (by majority of 4:3) in the year 1981: the decision of the majority in the 1981 decision has been overruled by the Nine–Judge Bench decision in the Second Judges case (Supreme Court Advocates-on-Record Association & Others vs Union of India – 1993(4) SCC 441).

LE: The Vice-President of India was criticized for his hasty dismissal of the motion to impeach the Chief Justice of India. What do you think about this move to impeach the CJI?

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Fali Sam Nariman: In my view, it was not a hasty decision, and in any case, subsequent events (viz. the withdrawal of proceedings initiated to challenge the view of the Chairman of the Rajya Sabha) provide an effective answer to the question posed.

LE: Do you think that the grounds for such a motion were created back in January when four of the seniormost judges of the SC aired their grievances in an unprecedented press conference?

Fali Sam Nariman: Possibly. The public were led to believe that in the opinion of four seniormost Judges there was something wrong in the functioning of the Supreme Court – a premier institution of great prestige.

LE: In September 2016, the then Chief Minister of Karnataka claimed that you had not consulted the government before informing the Supreme Court about Karnataka’s offer to release 10,000 cusecs of water to Tamil Nadu as a goodwill gesture. There was a lot of controversy around the matter, so much so that some people even pointed at a conflict of interest with your representing the then Tamil Nadu Chief Minister Jayalalithaa in the disproportionate assets case. Please comment.

falinariman4Fali Sam Nariman: There was and there is no conflict of interest because appearing as Counsel for obtaining bail in the disproportionate assets case was way back in the year 2014, whereas the Chief Minister of Karnataka’s reported statement was of a subsequent year (September 2016).

In my experience, when a Counsel is briefed in a proceeding in Court without any specific restrictions from the client, the Counsel is free to make binding commitments on behalf of the client, and if the client chooses not to honor the commitment so made, the client is free to discharge the Counsel engaged and to brief another. This has been my settled view, and I have so acted, whether appearing for governments or private parties, in my active practice as an Advocate for over 65 years.

Bail was granted by the Supreme Court of India to Selvi J. Jayalalithaa only on the condition (which was the offer made by me as her Counsel in Court) that Jayalalithaa would ensure that the Appeal filed by her would be heard by the High Court of Karnataka from January to April 2015, and to facilitate that very early hearing, we would ensure that all the voluminous records in the Case (343 printed volumes) were got printed by her at her cost before December 2015. “If not,” as the Chief Justice of India had warned in open court, “Ms. Jayalalithaa will go back to jail”! The case regarding bail was heard by a bench consisting of Chief Justice H. L. Dattu, Justice Madan B. Lokur, and Justice A. K. Sikri and the order is recorded in 2015 (3) SCC 111 (18.10.2014). It reads as follows:

“ORDER

1. After hearing Shri Fali S. Nariman, Shri K.T.S. Tulsi, learned Senior Counsel for the petitioners and Shri Subramanium Swamy, party-in-person and also the complainant, for the present, we suspend the sentence and direct that the petitioners, (i) Selvi J. Jayalalithaa, (ii) Tmt. N. Sasikala, (iii) Mr. V.N. Sudhakaran, and (iv) Tmt. J. Elasvarasi be released on bail on executing a bond with two solvent sureties by each of them to the satisfaction of the Thirty-sixth Additional City Civil and Sessions Judge (Special Court for trial of criminal cases against Km Jayalalithaa and others) at Bangalore.

2. Call these matters on 18.12.2014.” The sting was in the tail – the last sentence. The subsequent order (dated 18.12.2014) of the same court records that the undertaking given by Ms. Jayalalithaa to have the records printed (343 volumes) and copies supplied to all parties before December 2014 had been honoured, and accordingly, bail granted was confirmed, and the Appeal of Smt. Jayalalithaa was to be, and was in fact and was directed to be, heard in January 2015 by the Karnataka High Court: The High Court of Karnataka by its judgment dated 11.5.2015 reversed the verdict of the special court and acquitted all the accused including Smt. Jayalalithaa of all charges. But on further appeal in the Supreme Court of India, where the matter was heard from February 2016 to June 2016, orders were at first reserved. Meanwhile, Smt. Jayalalithaa died on 5.12.2016 and judgment in the case was pronounced by a two-judge bench of the Supreme Court in February 2017, setting aside the high court judgment of acquittal (reported in 2017 (6) SCC 263).

LE: You’ve been quoted as saying that Roosevelt’s two freedoms, i.e., freedom from want and freedom from fear, are a cause for concern in this country. Why?

Fali Sam Nariman:The quote from ‘WALK THE TALK’ reads as follows:

“Fali Nariman, ‘the liberal lion of the Bar’ as he is called by most of his well-wishers, says he is worried about freedom in India today. People are not free from fear, it’s gnawing on them, so feels Mr. Nariman. He talks about the sedition law and how the problem of sedition comes from fear. He is a Nehruvian and he believes that Nehru’s ‘Discovery of India’ made us proud. He also feels that criminal defamation should be abolished and civil defamation law made stronger. Mr. Nariman dislikes hate speech as it pulls down the atmosphere of progress. ‘Must preserve what our Constitution has given us’ is how Mr. Nariman concludes this very candid interview.”

LE: You’ve also said that Indians need to be more tolerant? Please elaborate.

Fali Sam Nariman: If I recollect, I had said that all citizens need to be far more tolerant than they are because intolerance breeds disharmony and often leads to violence.

LE: You are an internationally recognized jurist on international arbitration. What are your views on arbitration in India?

Fali Sam Nariman:Arbitration is a good thing as compared to litigation, but mediation, when successful, is even better. With the recent amendments in the Arbitration Law, whenever an arbitration proceeding is handled with skill and efficiency, it makes for a far better (and quicker) method of dispute resolution than litigation, since litigation in India takes place at least at three levels – first in the Trial Court, then in the High Court, and finally in the Supreme Court of India!

LE: What led you to pen your Autobiography “Before Memory Fades”?

Fali Sam Nariman:For two reasons:

(i) Because in the year 2010 when my Autobiography was first published, I had already reached 80 - the age of forgetfulness! and

(ii) because of the fear expressed by the great English poet, Mathew Arnold: “And we forget because we must, And not because we will”!!

In my Autobiography, I have recalled episodes from my life and (along the way) commented on men and matters.

1. The single directive was an order issued by the Government of India in 1969 (and thereafter frequently amended); it required prior sanction of the designated authority in Government to initiate investigation against officers above a certain rank – not only in the government, but also in public sector undertakings and in nationalized banks. The single directive was struck down in Vineet Narain’s case (1998) on the ground that it was not permissible under the Central Government’s general power of superintendence under Section 4(1) of the Delhi Special Police Establishment Act 1946, but it was revived under the Central Vigilance Commission Bill 2003 – which on being passed became an Act of Parliament.

 


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