Thread by @barandbench

Delhi High Court to shortly begin hearing appeals preferred by CBI and Enforcement Directorate against the acquittal of all accused in 2G Spectrum case.

The appeals are at the stage of leave to appeal.

#ARaja #2G #2GAppeal

@dir_ed

Bench of Single Judge Justice Brijesh Sethi assembles.

Hearing begins.

#ARaja #2G #2GAppeal

@dir_ed

Advocate Vishal Gosain mentions an application seeking permission from Court to hold meetings with his client in prison.

Court allows the application.

#ARaja #2G #2GAppeal

@dir_ed

Senior Advocate Siddharth Luthra begins his submissions.

Luthra briefly recaps his arguments from yesterday.

#ARaja #2G #2GAppeal

@dir_ed

Luthra: We have an acquittal in our favour and they are seeking to leave to appeal, not even an appeal.

Luthra: My submission is twofold - If there is a determination of a legislative intent desiring to efface the old S.13(1)(d) then my right which is the accrued right of acquittal ought not to be interfered with.

(Luthra refers to Section 6 of the General clauses Act)

Luthra: Legitimate question before Your Lordship is, do they have a right to appeal. My answer is No.

Rights of appeal are guaranteed by statutes and are not vested rights.

Luthra: Secondly, do they have the right to the remedy in respect to the right under (c).

Can such a remedy be excluded by law?

I would say, it can be.

(Luthra cites the decision in the case of NG Sheth vs CBI on the aspect of the right to appeal)

#ARaja #2G #2GAppeal

@dir_ed

Luthra: Some statutes which provide for right to second appeal which is only on substantial question of law.

In essence there is no "right to appeal", it is a creation of the statute and therefore, for State to say that they have a vested right, it is not a tenable stand.

Luthra: Alternatively, they don't even have a right to appeal. They have a leave to appeal.

My submission is Criminal Leave appeal under Section 378 is discretionary.

#2G #2GAppeal #DelhiHighCourt

Luthra: My submission is -

Where is the right (to appeal)?

Is the remedy good enough to invoke Section 6 (of General Clauses Act on what is saved in case of repeal)?

#DelhiHighCourt #2GAppeal

@dir_ed

(Luthra refers to the Parliamentary debates from 1999 ahead of tabling of the Prevention of Money Laundering Bill)

Luthra: Legislative intent there was akin to the intent in our case.

Luthra: At the time of FERA v FEMA, there were provisions brought in and some removed.

When we look at the select committee it reflects that the in our case the intent was to curtail the indiscriminate application of Section 13(1)(d).

(Luthra now refers to the judgment in the case of Kalpana Mehta vs UOI on the value of and procedures to be followed by committee reports.

The judgement also deals with constituent assembly debates vis-a-vis legislative intent et al)

#2G #2GAppeal #DelhiHighCourt

@dir_ed

(Luthra now refers to the SC's CB Judgment in Indore Development Authority case where Parliamentary debates were referred to to ascertain the legislative intent behind Section 24 of the Land Acquisition Act)

#DelhiHighCourt #2G #2GAppeal

@dir_ed

Luthra now addresses the Court on the aspect of restrospectivity/retroactivity, cites the judgment in the case of Mithilesh Kumari vs Prem Behari Khare.

#2G #2GAppeal #DelhiHighCourt

Luthra: Prior to the 2018 amendment, conduct of a public servant could atract criminal sanction.

The only issue was a decision that an action is not in public interest. Even if the act was done bona ride but was believed to be against public interest, could be booked.

Luthra: Parliament seeks to remedy that saying that actions of public servants cannot draw criminal sanctions except in cases of 13(1)(a) and 13(1)(b).

#2G #2GAppeal #DelhiHighCourt

Luthra: Every transaction involves a series of decisions. But ultimately what matters is the final decision.

#DelhiHighCourt #2G #2GAppeal

Luthra: My submission is that the amendment to the Act, the effacement of the provisions, will have retroactive effect.

And criminal leave appeal is not even a vested right.

#DelhiHighCourt #2GAppeals #2G

@dir_ed

Luthra is taking the Court through judgments in support of his case.

#DelhiHighCourt #2G #2GAppeal #ARaja
.

Luthra: There is no application of Section 6 of the General Clauses Act here.

#DelhiHighCourt #2G #2GAppeal #ARaja #2GSpectrum

Luthra: The absence of amendment to Section 30 (PC Act) means that the old remedies will have to be effaced with the effacement of the substantive law.

#DelhiHighCourt #2G #2GAppeal #ARaja #2GSpectrum

Luthra: There is a judgement which says that beneficial legislations must be construed to have prospective application.

The amendment being a beneficial legislation, it would be unjust to give it retrospective application.

#DelhiHighCourt #2G #2GAppeal #ARaja #2GSpectrum

Luthra: Ours is a case where there is a rejection of a completely inconsistent enactment.

#DelhiHighCourt #2G #2GAppeal #ARaja #2GSpectrum

Luthra: I had begun by saying that there is no right to appeal and they have a remedy to leave appeal.

Point is, how does one deal with the situation where there is no vested or embedded right?

#DelhiHighCourt #2G #2GAppeal #ARaja #2GSpectrum

Luthra: My acquittal is finalised. That is a vested right in me. This right will be unaffected and preserved even after the repeal.

The LP is an abstract right and is not a fructified right.

#DelhiHighCourt #2G #2GAppeal #ARaja #2GSpectrum

Luthra: The question of interpretation is pending before the Supreme Court.

There is a hierarchy.

Your Lordship is a Constitutional Court. SC is also a Constitutional Court and inter se there is a deference due to judicial propriety

Luthra: This is a material issue.

Matter is before the Division Bench.

Your Lordship may either defer the decision till the Division Bench decides or refer the matter to a larger Bench.

(Luthra concludes)

#DelhiHighCourt #2GAppeal #2G #ARaja #2GSpectrum

Hearing for the day concludes.

The Court will continue the hearing tomorrow at 2.30 PM.

#DelhiHighCourt #2G #2GAppeal #2GSpectrum #ARaja