By V. Venkatesan
There is an on going controversy in India about corruption on a massive scale as manifested in the 2-G Spectrum scandal.
Union Home Minister P. Chidambaram with former Telecom Minister A. Raja (right), in June 2010. Special CBI Judge O.P. Saini has dismissed the petition to include Chidambaram, who was the Finance Minister at the time of the scam, as an accused along with Raja-Pic: R. Senthil Kumar-PTI
Some elements of the political class have displayed very negative attributes by betraying public confidence and allegedly indulging in colossal corruption.
At the same time Civil society activists assisted by sections of the media have mounted a vigorous campaign to check these corrupt elements and bring them to book. Public interest litigation has been initiated in several instances
The Indian Judiciary particularly the Supreme Court has risen to the occasion and delivered some scathing judgements of far reaching consequences. As a result some politicos allegedly involved in unbridled corruption are battling to escape being severely penalised
If one were to compare the Supreme Court judges of India and our own Sri Lanka one can only sigh with frustration at what might have been
In a bid to inform readers about this positive development in India I am reproducing on my blog an article in “Frontline”newsmagazine by V.Venkatesan the Legal affairs correspondent of the Indian English daily “The Hindu” about four important cases with due acknowledgement to both the Publication and writer
Here it is Friends-DBS Jeyaraj
By V. Venkatesan
FOUR judicial verdicts delivered within the span of a week from January 31 have the potential to leave a significant imprint on the anti-corruption crusade of civil society activists in the country.
A major challenge faced by these activists whenever they tried to expose corruption by public servants was Section 19 of the Prevention of Corruption Act (PCA), 1988. This section makes it mandatory for a court to take cognisance of an offence punishable under the Act and committed by a public servant only after the government concerned sanctioned it.
This provision was enacted to prevent frivolous and vexatious litigation against public servants. However, governments, both at the Centre and in the States, often misused the provision to delay inordinately a decision on the grant or refusal of sanction, in order to protect corrupt public servants.
In the landmark Vineet Narain case in 1998, the Supreme Court had held that governments must adhere to the time limit of three months for grant of sanction for prosecution. The court allowed an additional time of one month where consultation with the Attorney General was required. On the basis of this and other related High Court judgments, the Central Vigilance Commission (CVC) framed certain guidelines in 2005. These guidelines made it clear that while granting or refusing sanction, the Competent Authority should only see whether the material placed by the complainant or the investigating agency prima facie disclosed commission of an offence and that a detailed inquiry was not required at that stage.
In the 2G case, the Central government did not comply with either the Vineet Narain judgment or the CVC’s guidelines while disposing of Janata Party president Subramanian Swamy’s petition for sanction to prosecute the former Telecom Minister A. Raja.
Swamy first made his representation to the Prime Minister on November 29, 2008, when he sought sanction to prosecute Raja under the PCA; he kept sending one reminder after another until 2010. Swamy had alleged that Raja had allotted new licences in 2G mobile services on a first-come-first-served (FCFS) basis to novice telecom companies, Swan Telecom and Unitech, in clear violation of the guidelines issued by the Ministry of Communication and Information Technology in 2005 and thereby caused a loss of over Rs.50,000 crore to the government.
However, the government chose to respond to Swamy’s petition only on March 19, 2010. The Department of Personnel and Training wrote to him saying that the Central Bureau of Investigation (CBI) had registered a case on October 21, 2009, and therefore, it would be premature to consider grant of sanction for prosecution.
It was at this stage that Swamy filed a writ petition in the Delhi High Court seeking issue of mandamus to the Prime Minister to grant sanction. The High Court dismissed his petition.
Meanwhile, Raja resigned as Union Minister, and the Supreme Court admitted Swamy’s appeal against the High Court order. Despite Raja’s subsequent resignation and prosecution, the issue of grant of sanction needed to be examined in order to fix accountability at the highest levels.
On January 31, a Bench comprising Justices G.S. Singhvi and Asok Kumar Ganguly reminded the government that investigation against Raja had begun only with the Supreme Court’s intervention and that the delay in the grant of sanction by the Prime Minister was impermissible. However, the Bench did not hold the Prime Minister personally responsible for that. It said that he was not expected to look into the minute details of each and every case placed before him and had to depend on his advisers and other officers, and that they had failed to provide the full facts to him. Had the Prime Minister been aware of the factual and legal position, he would surely have taken an appropriate decision and would not have allowed the matter to linger for more than a year, the Bench said.
The Bench, however, laid down two significant principles to be strictly adhered to in future by any government in the country. It held that all citizens had a right to seek sanction to prosecute a public servant accused of corruption and that every Competent Authority should take appropriate action on the citizen’s representation for sanction of prosecution of such public servant in accordance with the Vineet Narain judgment and the CVC’s guidelines. To this, Justice Ganguly added, in his separate opinion, that Section 19 of the PCA must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to the escalation of corruption. Delay in granting sanction for prosecution thwarted the purpose of a speedy trial, and the absence of a time limit in granting sanction was against the requirement of due process of law, he said.
He, therefore, recommended that Parliament amend Section 19 to provide that , if no decision is taken at the end of a four-month period after a citizen submits a recommendation seeking sanction, sanction will be deemed to have been granted for prosecution and the complainant/prosecuting agency will be free to file complaint/charge sheet to commence prosecution.
Observers and legal experts are convinced that no government in future will ignore this recommendation even if Parliament does not immediately amend Section 19 on the lines suggested by Justice Ganguly.
The Bench’s clean chit to the Prime Minister, however, has confounded critics who point to its second judgment, delivered on February 2, when Justice Ganguly retired from the Supreme Court. In this judgment, the Bench cancelled the 122 licences issued by Raja on or after January 10, 2008, and directed the Telecom Regulatory Authority of India (TRAI) to make fresh recommendations for grant of licence and allocation of spectrum in 2G band in 22 service areas by auction, as was done for allocation of spectrum in 3G band. The Bench did so by following the reasoning that the FCFS principle was inherently non-transparent, and unfair. The Bench had no doubt that if the method of auction had been adopted for grant of licence, which could be the only transparent method for the distribution of national wealth, the nation would have been richer by many thousand crores of rupees.
However, by quoting from the correspondence exchanged between Raja and the Prime Minister, the Bench sought to imply that the Prime Minister knew that his Minister was against auctioning spectrum to new applicants and that he was in a position to stop Raja from going ahead with the grant of Letters of Intent (LoI) to the applicants on January 10, 2008. But the Prime Minister did not do so. Yet the Bench did not find it necessary to indict him or pass strictures for this lapse. The Bench, curiously, has also brought out how Raja ignored the concerns expressed by the Law and Finance Ministers over the adoption of the FCFS principle, but the question why the said Ministers did not protest against Raja’s defiance is not discussed in the judgment.
The Bench said that the manner in which the exercise for grant of LoIs to the applicants was conducted on January 10, 2008, left no room for doubt that everything was stage-managed to favour those who were able to know in advance the change in the implementation of the FCFS principle. Raja arbitrarily advanced the cut-off date for the receipt of applications from October 1, 2007, to September 25, 2007, and did not make this public until January 10, 2008. This was intended to benefit some real estate companies which did not have any experience in telecom services and which had made applications only on September 24, 2007. The Bench did not consider the question whether Raja could have acted alone in this manner, totally bypassing the concept of collective responsibility underlying the cabinet system of government.
The court justified its interference in policy matters in terms of the doctrine of judicial review. It said: “When it is clearly demonstrated before the court that the policy framed by the State or its agency/instrumentality and /or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the court to exercise its jurisdiction in larger public interest and reject the stock plea of the state that the scope of judicial review should not be exceeded beyond the recognised parameters…. It is the duty of the court to ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill-will and who, as any other citizen, enjoy fundamental rights but is bound to perform duties.”
Observers expect these observations will inspire public-spirited citizens to consider judicial remedy as a reliable mechanism to ensure good governance.
A glaring omission in the judgment is the role of the Attorney General, Goolam Vahanvati. As Solicitor General then, Vahanvati provided the legal justification for Raja. He wrote on the file just three days before the scam took place on January 10, 2008: “I have seen the notes. The issue regarding new LoIs is not before any court. What is proposed is fair and reasonable. The press release (the draft which was released by Raja’s Ministry on 10.1.2008) makes for transparency. This seems to be in order.” This provided the necessary legal cover for Raja.
The judgment also suffers from a serious inconsistency. The Bench justified the quashing of the licences issued in 2008 to protect institutional integrity but left the licences issued before 2008 on the basis of the FCFS principle untouched, because it said there was no challenge to it and there were no aggrieved parties before it. Those dissatisfied with this flaw ask whether the court could have allowed illegal licences issued before 2008 to continue merely because of a technical ground.
Special CBI Judge O.P. Saini’s order of February 4, however, has disappointed those who believed the Supreme Court’s three judgments would have an impact on the likelihood of Union Home Minister P. Chidambaram’s prosecution in the 2G case. Judge Saini dismissed Subramanian Swamy’s application to include Chidambaram as a co-accused under the PCA in the ongoing criminal trial of the accused in the 2G case. Swamy had earlier filed an appeal petition in the Supreme Court against the Delhi High Court’s dismissal of his plea for a direction to the CBI to probe Chidambaram’s role. On February 2, the Supreme Court Bench comprising Justices Singhvi and Ganguly refrained from passing any order on Swamy’s appeal to avoid influencing the pending matter in Saini’s court. In his February 4 order, Saini concluded that the evidence submitted by Swami did not, prima facie, attract any criminal charges against Chidambaram. Swami has said that he will appeal against Saini’s order.
Saini held that Chidambaram was party to only two decisions – of keeping the spectrum prices at the 2001 level and dilution of equity by two companies, Swan and Unitech, even before the roll-out of their services.
However, the judge said both these acts were not illegal per se. But such acts may acquire criminal colour/overtones when done with criminal intent, he said. In the case of Raja, these acts were accompanied by further acts of subverting an established policy and procedure for grant of Unified Access Service licences and the payment and receipt of bribe by other accused, who stand charged and are facing trial. Innocent and innocuous acts done in association with others did not make one a partner in crime unless there was material to indicate otherwise, which was lacking in this case, Saini said in his order.
Observers wonder whether Swamy could have got a favourable order from the Supreme Court on the Chidambaram issue had he not approached the trial court. The two issues were different – directing the CBI to investigate the role of Chidambaram and making him a co-accused in the criminal case on the basis of prima facie evidence. Clearly, in the eyes of the trial court, there is no prima facie evidence to make him a co-accused. To unearth necessary evidence, there is the need for further investigation, which the CBI alone can undertake. Saini’s court could not have directed the CBI to investigate as it was beyond its jurisdiction. On the other hand, the Supreme Court could not have directed the CBI to do so when the trial court was about to pronounce its order in a related matter. In the end, it appeared that the overenthusiastic Swami had jumped the gun by seeking redress in two forums simultaneously. [frontline]