The Reliance Telecom on Wednesday told the Supreme Court that its right to move the high court under Article 226 could not be washed away as such a step was not in conformity with the basic structure of the constitution.
Article 226 of the constitution prescribes the power of high courts to issue certain writs.
Senior counsel Mukul Rohatgi, appearing for the company, told the apex court bench of Justice G.S. Singhvi and Justice K.S. Radhakrishnan: “Article 226 of the constitution is a part of the basic structure of the constitution and it can not be take away.”
“It can’t be ousted by law or even by constitutional amendment,” said Rohatgi.
The court was told this in the course of the hearing on the company’s plea seeking the recall of the court’s order of April 11, 2011 by which it had barred any other court, including high court, from entertaining any plea against the order or any proceeding of the 2G special court holding trial in the 2G cases.
Seeking the recall of the order, the Reliance Telecom said: “The right to approach the high court under Article 226/227 forms part of the basic structure of the constitution.”
The April 2011 order of the court said: “We also make it clear that any objection about appointment of special public prosecutor or the assistant advocate or any prayer for staying or impeding progress of the trial can only be made before this court and no other court shall entertain the same. The trial must proceed on a day-to-day basis.”
Describing as “laudable” the object of the apex court in passing such an order to have a “fair and fast” trial, Rohatgi said that court in its anxiety to have fast and fair trial felt that normal channel would impede the fast tracking of the trial.
He said in its anxiety to have a fair and fast trial, the court could not oust the constitutional provision.
The apex court could pronounce a law in a space that was unoccupied by the constitution or statute but it “does not operate where a substantive law already exists and take away that area”, Rohatgi told the court.
“The right to file a petition under section 482 of the Cr.P.C. (dealing with inherent power to the high court) is also a statutory right,” the Reliance Telecom said.
“The sui generis criminal procedure which is being evolved is arbitrary, as it singles out the applicant and the other co-accused for discriminatory treatment in violation of Article 14 (equality before law),” it said.