REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) No. (s) 353 of 2006

KUNGA NIMA LEPCHA  & ORS.           …     PETITIONERS

VERSUS

STATE OF SIKKIM & ORS.                 …    RESPONDENTS

J U D G M E N T

K. G. BALAKRISHNAN, CJI

1. The present writ petition was instituted in this Court by  

way  of  public  interest  litigation  under  Article  32  of  the  

Constitution  of  India.  The  petitioners  have  levelled  some  

allegations against the incumbent Chief Minister of the State  

of Sikkim who was impleaded as Respondent No.2 herein. The  

crux of  these allegations is  that he has misused his  public  

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office to amass assets disproportionate to his known sources  

of  income.  The  petitioners  have  also  alleged  that  he  has  

misappropriated a large volume of public money at the cost of  

the Government of India and the Government of Sikkim. The  

relief  sought  by the  petitioners  is  the  issuance of  a  writ  of  

mandamus directing the Central Bureau of Investigation (CBI)  

to investigate the allegations that have been levelled against  

him.  

2. It may be recalled that the State of Sikkim had become a  

full fledged state of the Union of India, following the enactment  

of the Thirty-sixth Amendment to the Constitution which was  

given effect in 1975. The said amendment had inserted Article  

371F  into  the  constitutional  text  which  lays  down  special  

provisions  with  respect  to  the  governance  of  the  State  of  

Sikkim. We must also take note of the fact that even though  

the Income Tax Act, 1961 had been extended to the State of  

Sikkim in 1989, it has not been enforced till date on account  

of the constitutionally mandated special treatment. The non-

enforcement of the Income Tax Act is a relevant consideration  

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since  it  entails  that  the  income  details  of  individuals  who  

belong to and reside in Sikkim are not recorded by the Income  

Tax Department. Furthermore, the finances of the government  

of  Sikkim  are  enhanced  by  the  various  developmental  and  

welfare schemes of Government of India.  Respondent No. 2 is  

the founder President of the Sikkim Democratic Front and he  

has been serving as the Chief Minister of the State of Sikkim  

since 12th December, 1994. Under his leadership, the Sikkim  

Democratic Front has been successful in the periodic elections  

held to constitute the State Legislative Assembly.  

3.  However,  the  petitioners  have  levelled  some  serious  

allegations of wrongdoing on part of the second respondent. In  

Annexure P-1 of the writ petition submitted before this Court,  

a list of his family members has been provided. This list refers  

to 21 members which includes 2 wives, 4 sons, 1 daughter, 4  

brothers, 6 sisters-in-law, 1 father-in- law, and 3 brothers-in-

law.  It  has  been  pointed  out  that  in  order  to  contest  the  

elections  to  the  State  Legislative  Assembly  from  the  13-

Damthang Constituency in the year 2004, he had declared his  

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family’s  assets taken together to be Rs. 4,76,54,238/-.  This  

declaration  was  made  as  per  the  requirements  of  the  

Representation of People Act, 1951. However, the petitioners  

have  alleged  that  the  total  assets  actually  amount  to  more  

than Rs. 25 crores.        

4. In Paragraph 29 of the writ petition, the petitioners have  

incorporated  a  detailed  description  of  the  movable  and  

immovable assets that allegedly belong to Respondent No. 2  

and  his  relatives.  Furthermore,  the  petitioners  have  also  

alleged that Respondent No. 2 has acquired several immovable  

properties  either  in  his  own  name  or  in  the  name  of  his  

relatives  or  in  the  name  of  his  nominees  by  way  of  

misappropriating  funds  from  the  public  exchequer.  In  

Annexure  P-20,  the  petitioners  have  alleged  that  the  

Government  of  Sikkim  acting  through  the  Sikkim  Power  

Development Corporation has misappropriated an amount of  

Rs.  15.38 crores from the public exchequer.  The petitioners  

have  supported  these  allegations  by  submitting  that  the  

relevant information was procured in response to applications  

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filed under the Right to Information Act, 2005. It will also be  

useful to reproduce the prayer sought by the petitioners in the  

following words:  

“(a)  issuance  of  an  appropriate  writ  in  the  nature  of  Mandamus commanding the Director, Central Bureau of  Investigation to investigate the awarding of government  contracts and/or work orders by the Respondent No. 1  State of Sikkim during the tenure of the Respondent No.2  as  the  Chief  Minister  of  the  State  of  Sikkim viz  a  viz  amassing  of  huge  assets  and/or  wealth  by  the  Respondent No. 2 and his relatives with a direction upon  it to submit its report before this Hon’ble Court within a  time frame fixed by this Hon’ble Court;

(b)  issuance  of  an  appropriate  writ  in  the  nature  of  mandamus commanding the Director, Central Bureau of  Investigation  to  investigate  the  matter  against  the  Respondent No. 2, his relatives and other guilty officials  and take appropriate legal action by way of registration of  FIR  under  the  general  provisions  of  law  and  the  provisions of Prevention of Corruption Act, 1988;  

(c)  order for rule nisi in terms of the prayers above;

(d) pass such further order(s) and/or direction(s) as this  Hon’ble Court may deem fit and proper.”

5. In  the  course  of  the  proceedings  before  this  Court,  

Sh. Vinod Bobde, Sr. Adv. argued on behalf of the petitioners.  

Thereafter,  Sh.  Ram  Jethmalani,  Sr.  Adv.  made  oral  

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submissions  on  behalf  of  the  respondents,  followed  by  Sh.  

K.K. Venugopal. Sr. Adv. Thereafter, Sh. Vinod Bobde, Sr. Adv.  

made his submissions in rejoinder.   

6. Before  addressing  the  substance  of  the  petitioners’  

submissions,  it  must  be  mentioned  that  there  are  four  

petitioners in this case who are serving as office-bearers of a  

political party in Sikkim. Petitioner No. 3 has affirmed through  

an affidavit dated 31st August, 2007, that they were advised to  

file a writ petition before this court by former Chief Minister of  

the State of  Sikkim and currently serving as President of  a  

political party. In fact, Petitioner No. 3 has sworn on affidavit  

that  he had joined these proceedings as a petitioner  at  the  

instance of him. He has also cast aspersions on the motives of  

Sh. Kunga Nima Lepcha (Petitioner No. 1) for filing the present  

writ  petition.  In  view  of  this  position,  Petitioner  No.  3  had  

sought permission to withdraw from the proceedings.     

7. The fact that this petition was instituted at the initiative of  

four  individuals  belonging  to  a  political  party  raises  the  

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apprehension that they were motivated by a sense of political  

rivalry rather than a public-spirited concern about the misuse  

of office by the incumbent Chief Minister. We must of course  

emphasise that the writ  jurisdiction exercised by this Court  

cannot  be  turned  into  an  instrument  of  such  partisan  

considerations. However, even if we were to accept the  locus  

standi of  the petitioners keeping in mind that allegations of  

corruption on part of the incumbent Chief Minister do touch  

on public interest, this Court is not the appropriate forum for  

seeking the initiation of investigation.  

8.  It  is  of  course  true  that  this  Court  has  copious  powers  

under  Article  32  of  the  Constitution  for  the  purpose  of  

enforcing the rights enshrined in Part III of the Constitution.  

Over  the  years,  this  Court  has  creatively  expanded  its  writ  

jurisdiction  to  provide  redress  against  the  infringement  of  

fundamental rights and concurrently relied on Article 142 to  

do complete justice in the matters before it. As explained by  

J.S. Verma, C.J., in  Vineet Narain v. Union of India (1998) 1  

SCC 226 (Para. 49):

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“49. There are ample powers conferred by Article 32 read  with Article 142 to make orders which have the effect of  law by virtue of Article 141 and there is mandate to all  authorities to act in aid of the orders of this Court as  provided in Article 144 of the Constitution. In a catena of  decisions of this Court, this power has been recognized  and exercised, if need be, by issuing necessary directions  to fill the vacuum till such time the legislature steps in to  cover the gap or the executive discharges its role…”  

9. However, the remedies evolved by way of writ jurisdiction  

are of an extraordinary nature. They cannot be granted as a  

matter of due course to provide redressal in situations where  

statutory remedies are available.  It is quite evident that the  

onus is on the petitioners to demonstrate a specific violation of  

any of the fundamental rights in order to seek relief under writ  

jurisdiction. In the present petition, the petitioners have made  

a rather vague argument that the alleged acts of corruption on  

part of  Shri Pawan Chamling amount to an infringement of  

Article  14 of  the  Constitution  of  India.  We do not  find any  

merit  in  this  assertion  because  the  guarantee  of  ‘equal  

protection before the law’ or ‘equality before the law’ is violated  

if  there  is  an  unreasonable  discrimination  between  two  or  

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more individuals or between two or more classes of persons.  

Clearly the alleged acts of  misappropriation from the public  

exchequer cannot be automatically equated with a violation of  

the guarantee of ‘equal protection before the law’.   

10. Furthermore, we must emphasise the fact that the alleged  

acts  can easily  come within the ambit  of  statutory offences  

such  as  those  of  ‘possession  of  assets  disproportionate  to  

known  sources  of  income’  as  well  as  ‘criminal  misconduct’  

under  the  Prevention of  Corruption  Act,  1988.  The onus of  

launching an investigation into such matters is clearly on the  

investigating  agencies  such  as  the  State  Police,  Central  

Bureau  of  Investigation  (CBI)  or  the  Central  Vigilance  

Commission (CVC) among others. It is not proper for this court  

to give directions for initiating such an investigation under its  

writ jurisdiction. While it is true that in the past, the Supreme  

Court of India as well as the various High Courts have indeed  

granted remedies relating to investigations in criminal cases,  

we must make a careful note of the petitioners’ prayer in the  

present case. In the past, writ jurisdiction has been used to  

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monitor the progress of ongoing investigations or to transfer  

ongoing  investigations  from  one  investigating  agency  to  

another.  Such  directions  have  been  given  when  a  specific  

violation of fundamental rights is shown, which could be the  

consequence  of  apathy or  partiality  on part  of  investigating  

agencies  among  other  reasons.  In  some  cases,  judicial  

intervention  by  way  of  writ  jurisdiction  is  warranted  on  

account of obstructions to the investigation process such as  

material threats to witnesses, the destruction of evidence or  

undue  pressure  from  powerful  interests.  In  all  of  these  

circumstances, the writ court can only play a corrective role to  

ensure  that  the  integrity  of  the  investigation  is  not  

compromised. However, it is not viable for a writ court to order  

the initiation of an investigation. That function clearly lies in  

the domain of the executive and it is upto the investigating  

agencies themselves to decide whether the material produced  

before  them  provides  a  sufficient  basis  to  launch  an  

investigation.  It  must  also be borne in  mind that  there  are  

provisions in the Code of Criminal Procedure which empower  

the  courts  of  first  instance  to  exercise  a  certain  degree  of  

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control over ongoing investigations. The scope for intervention  

by the trial court is hence controlled by statutory provisions  

and it is not advisable for writ courts to interfere with criminal  

investigations  in  the  absence  of  specific  standards  for  the  

same.     

11.   Hence it  is  our  conclusion that  the  petitioners’  prayer  

cannot  be  granted.  This  court  cannot  sit  in  judgment  over  

whether investigations should be launched against politicians  

for  alleged  acts  of  corruption.  The  Supreme Court  of  India  

functions  as  a  Constitutional  Court  as  well  as  the  highest  

appellate  court  in  the  country.  If  the  Supreme  Court  gives  

direction for prosecution, it would cause serious prejudice to  

the  accused,  as  the  direction  of  this  Court  may  have  far  

reaching persuasive effect on the Court which may ultimately  

try  the  accused.   It  is  always  open  to  the  petitioners  to  

approach  the  investigative  agencies  directly  with  the  

incriminating materials and it is for the investigative agencies  

to  decide  on  the  further  course  of  action.  While  we  can  

appreciate  the general  claim that  the efforts  to uncover  the  

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alleged acts of  corruption may be obstructed by entrenched  

interests, in this particular case the petitioners would be well  

advised to  rely on the statutory remedies.  It  is  only on the  

exhaustion  of  ordinary  remedies  that  perhaps  a  proceeding  

can be brought before a writ court and in any case the High  

Court of Sikkim would be a far more appropriate forum for  

examining the allegations made in the present petition.   

12. Hence,  the writ  petition is  dismissed,  however with no  

order as to costs.         

                                                                       .……………………….…CJI                                                                          [K.G. BALAKRISHNAN]  

                     .....…… ……………………J.  

                                                                       [P. SATHASIVAM]   

              ……………. …………….J.

                 [J. M. PANCHAL]  

New Delhi  March 25, 2010  

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