Appointment of Special Judges under Prevention of Corruption Act

Discretion to appoint judges under section 3 of PC Act:

While exercising the power under Section 3 the Government shall have to be guided by the said policy, In order to achieve the object of the Act, how many special judges would be required in ah area could not have been anticipated by the legislature as that would depend upon various factors.

The number of judges required for an area would vary from place to place and from time to time. So also requirement of a separate special Judge for a case or group of cases in addition to the area special judge who could have otherwise dealt with that case or those cases would also depend upon various variable circumstances. Therefore, no fixed rule or guideline in that behalf could have been laid down by the legislature. The legislature had to leave it to the discretion of the Government as it would be in a better position to know the requirement Further, the discretion conferred upon the Government is not absolute. It is in the nature of statutory obligation or duty. It is the requirement which would necessitate exercise of power by the Government, When a necessity would arise and of what type being uncertain the legislature could not have laid down any other guideline except the guidance of `necessity’. It is really for that reason that the legislature while conferring discretion upon the Government has provided that the Government shall appoint as many special judges as may be necessary. The words `as may be necessary’ in our opinion is the guideline according to which the Government has to exercise its discretion to achieve the object of speedy trial. The term `necessary’ means what is indispensable, needful or essential.

[Source: J. Jayalalitha v. Union of India, (1999) 5 SCC 138]
followed in 63 Moon Technologies Ltd vs. Union of India decided by SC on April 30, 2019]

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