G.R.SWAMINATHAN Vs. ADDITIONAL DIRECTOR GENERAL

JUDGEMENT

(1.) While reading the great Indian epics, namely, the Ramayana and the Mahabharatha, we feel that some of the principal characters have been less than fair while dealing with their antagonists. Was Lord Rama justified in shooting the fatal arrow at Vali by hiding behind a tree?. Kama is another unforgettable character. The wheel of his chariot was stuck in the mud and when he was attempting to retrieve it, Arjuna's arrows struck him. What about Abhimanyu ?. Though the Sastras spoke of rules of war (Yudha Dharma), the approach was often that all is fair in love and war. Attainment of victory was more important than observing the niceties of the game.

(2.) But, a constitutionally governed democratic State which is committed to upholding the rule of law shall not adopt unfair methods when prosecuting citizens and non-citizens alike. And if the executive wing does, judiciary shall not wink. I must, with a sense of moral unease, acknowledge that there exists an exception to this lofty principle. An illegally procured evidence may still be admissible provided it is relevant. Just as an accused in a criminal case is entitled to fair trial, a noticee is entitled to fair adjudication and enquiry. This is implicit in Article 14 as well as Article 21 of the Constitution of India. It can be taken as axiomatic and an uncontestable proposition. What are the contours of this right?. While it is not necessary to exhaustively delineate its scope, there can be no doubt that the noticee is entitled to copies of documents in official custody if they have a bearing on the defence. Denial of access to such documents may result in prejudice to the noticee in properly defending his or her case.

(3.) The question that arises for consideration in these writ petitions is whether this right to fair adjudication has been infringed. To answer the said question, it is necessary to take note of the competing versions presented by the petitioners as well as the department.