The Supreme Court has declined to entertain a writ petition challenging constitutional validity of various provisions of the Central Goods Service Tax Act, 2017.

"We are of the view that it would be appropriate to relegate the petitioner to the remedy of a petition under Article 226 so that this Court has the benefit of the considered view of the jurisdictional High Court," the bench headed by Justice DY Chandrachud observed.

The court observed though the jurisdiction under Article 32 is a salutary constitutional safeguard to protect the fundamental rights of citizens, the recourse to the jurisdiction under Article 32 should be entertained in a particular case is a matter for the 'calibrated exercise of judicial discretion'.

The petitioner (Mr. Kapil Kumar) contended that (a) Sections 69 & 132 of GST Act are ultra vires to Article 21 of the Constitution of India (b) Section 70( 1) is ultra vires to Article 20(3) of the Constitution, (c) Section 67 (1) and S. 69 of the CGST Act are ultra vires and violative of the principles of natural justice, as the said Section does not provide for recording of reasons to believe in writing, unlike other statutes such as Prevention of Money Laundering Act, 2002, (d) Section 137 of the CGST Act 2017 is contrary to the settled principles of law, which provide that there can be no fastening of vicarious liability for a criminal offence requiring mens rea, without there being an active role being proved by the prosecution. (e) Section 135 of CGST Act, 2017 is unconstitutional as it requires Accused to disprove the reverse burden of proof not by preponderance of probability but beyond reasonable doubt.

Section 67 deals with power of inspection, search and seizure, Section 69 with power to arrest, Section 70 with power to summon persons to give evidence and produce documents,  Section 132 with punishment for certain offences, Section 135 with Presumption of culpable mental state, Section 137 with offences by companies.

The bench, also comprising Justices Indira Banerjee and Sanjiv Khanna noted that several other petitions which were instituted under Article 32 of the Constitution have eventually been withdrawn, and some were dismissed. The bench, therefore, observed:

"The petitioners have an efficacious remedy in the form of proceedings under Article 226 of the Constitution to challenge the constitutional validity of the provisions of the statute which are placed in issue. Following this course of action is desirable, for this Court will then have the benefit of a considered view emanating from the High Court. Though the Counsel for the petitioners invokes Article 21, this is a case involving essentially a challenge to revenue legislation. Undoubtedly, the jurisdiction of this Court under Article 32 is a salutary constitutional safeguard to protect the fundamental rights of citizens. The Court must be solicitous in exercising it where a breach of fundamental human rights is in issue. But equally, whether recourse to the jurisdiction under Article 32 should be entertained in a particular case is a matter for the calibrated exercise of judicial discretion. There is regime of well-established remedies and procedures under the laws of criminal procedure. Revenue legislation also provides its own internal discipline. Short circuiting this should not become a ruse for flooding this court with petitions which can, should and must be addressed before the competent fora. Hence we are of the view that it would be appropriate to relegate the petitioner to the remedy of a petition under Article 226 so that this Court has the benefit of the considered view of the jurisdictional High Court."

While dismissing the writ petition, the bench further observed:

Besides the fact that the constitutional challenge can be addressed before the High Court, the grievance in regard to the conduct of the investigation can appropriately be addressed before the competent forum, either in exercise of the jurisdiction under Article 226 or, as the case may be, Section 482 or analogous provisions of the Code of Criminal Procedure 1973

CASE: DEVENDRA DWIVEDI vs. UNION OF INDIA [Writ Petition(s)(Criminal) No(s).272/2020]CORAM: Justices DY Chandrachud, Indira Banerjee and Sanjiv KhannaCITATION: LL 2021 SC 9

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