Devendra Dwivedi VS Union Of India

The petitioners have invoked the jurisdiction of the Court under Article 32 of the Constitution, seeking various reliefs regarding the constitutionality and legality of certain provisions of the Central Goods and Service Tax Act, 2017 (CGST Act), as well as the procedural aspects of investigations initiated under it. The reliefs sought include:

1. Declaration of Sections 69 & 132 of the CGST Act as unconstitutional and ultra vires to Article 21 of the Constitution, and therefore illegal and unenforceable.
2. Directing the Respondent to comply with the mandatory procedures under Chapter XII of the Code of Criminal Procedure, 1973 (CrPC) for the valid commencement of investigations into any offense against the petitioner.
3. Declaration of the entire investigations initiated by the Respondents against the petitioner as non est, illegal, and void ab initio for not adhering to the mandatory procedures under Chapter XII of the CrPC, thus violating the “procedure established by law.”
4. Declaration of Section 70(1) of the CGST Act as unconstitutional and ultra vires to Article 20(3) of the Constitution, and hence illegal and unenforceable.
5. Declaration that Sections 67(1) and 69 of the CGST Act are ultra vires and violative of the principles of natural justice, as they do not require the recording of reasons to believe in writing, unlike other statutes such as the Prevention of Money Laundering Act, 2002.
6. Declaration that the provisions of Section 137 of the CGST Act 2017 are contrary to settled principles of law, as they allow for vicarious liability for a criminal offense without proving an active role by the accused.
7. Declaration that the provisions of Section 135 of the CGST Act, 2017, are unconstitutional as they require the accused to disprove the reverse burden of proof not by preponderance of probability but beyond reasonable doubt.

These reliefs indicate a comprehensive challenge to various aspects of the CGST Act, including its constitutionality, procedural aspects of investigations, and specific provisions related to burden of proof and liability. The petitioners seek to ensure adherence to constitutional principles, procedural fairness, and the protection of individual rights within the framework of taxation laws.

The petitioners in this case seek a combination of reliefs, encompassing challenges to the constitutional validity of certain provisions of the Central Goods Service Tax Act 2017 (CGST Act), directions for compliance with investigation procedures outlined in Chapter XII of the Code of Criminal Procedure 1973 (CrPC), and a declaration of the illegality of investigations initiated against them.

During the proceedings, it was argued on behalf of the petitioners that the Court should entertain the present proceedings under Article 32 of the Constitution due to previous orders issuing notice on similar issues. They contend that considering these orders and the constitutional issues raised, the Court should address both the challenge to the constitutional validity of the statute and the legality of the investigations, asserting that the right to life under Article 21 of the Constitution is implicated in the challenge.

However, these arguments have been contested by the learned Attorney General for India, Mr. K K Venugopal, and the learned Solicitor General, Mr. Tushar Mehta.

The court notes that on April 10, 2019, a Bench of three Judges declined to entertain Writ Petition (Crl) Nos 107 and 108 of 2019. Additionally, several other petitions instituted under Article 32 of the Constitution have been withdrawn, including Writ Petition (Crl) Nos 260, 167, 241, and 157 of 2020. These withdrawals occurred on various dates, indicating a trend of petitioners opting to withdraw their cases.

Furthermore, the earlier petition under Article 32 was withdrawn before the Court today after submissions were made.

This summary reflects the ongoing legal dispute concerning the constitutional validity of certain provisions of the CGST Act and the procedural aspects of investigations, along with the withdrawal of similar petitions in the past.

The court acknowledges that the petitioners have an alternative remedy available through proceedings under Article 226 of the Constitution to challenge the constitutional validity of the provisions of the statute in question. Pursuing this course of action is deemed preferable as it would provide the Court with the benefit of a well-considered perspective from the High Court. While the petitioners’ counsel invokes Article 21, emphasizing fundamental rights, the case primarily revolves around a challenge to revenue legislation.

The jurisdiction under Article 32 of the Constitution serves as a crucial constitutional safeguard for protecting citizens’ fundamental rights. However, its invocation should be cautious, especially when the breach of fundamental rights is not the core issue. The decision to entertain recourse to Article 32 is subject to the court’s judicious discretion. There exist established remedies and procedures under criminal procedural laws and revenue legislation, which should not be circumvented to flood the court with petitions that could and should be addressed through appropriate channels.

Therefore, the court concludes that it would be suitable to direct the petitioners to pursue their remedy through a petition under Article 226. This approach ensures that the Court can benefit from the informed opinion of the relevant High Court, fostering a more comprehensive and considered adjudication of the matter.

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