SCANDALOUS AND NATIONALLY SUBVERSIVE CBI COURT JUDGMENT

JUDICIALLY PERVERSE

LEGALLY SCANDALOUS 

AND

NATIONALLY SUBVERSIVE

CBI COURT JUDGMENT

By V. SUNDARAM I.A.S

All India General Secretary (Ideology), Janata Party

“Our Judges are not monks or scientists, but participants in the living stream of our national life, steering the Law between the dangers of rigidity on the one hand and of formlessness on the other.”-US Chief Justice Earl Warren.

I have derived my inspiration to write this Article from the following immortal words of BERNARD SHAW (1856-1950):

“I am, and have always been, and shall now always be, a revolutionary writer, because our LAWS make LAW Impossible; our Liberties destroy all FREEDOM; our Property is organized Robbery; our Morality is an Impudent  HYPOCRACY; our Wisdom administer by inexperienced or mal experienced Dupes, our Power wielded by Cowards and Weaklings, and our Honour False in all its points. I am an Enemy of the existing order. I speak even if none listens; I write even if none reads. I act on Voltaire’s Wisdom: The cowardice of the honest people ensures the success of the scoundrels.’”

Janata Party President Subramanian Swamy is absolutely right when he termed as “wrong”  the judgment delivered by the CBI Special Court on Saturday (4^th February 2012) dismissing his petition against Home Minister P. Chidambaram in the 2G Spectrum Case. Even a cursory perusal of the confused, confusing, wobbly and messy judgment given by the Special Judge shows that it is a classic, nay outstanding, INSTANCE OF HOW A JUDGMENT committed to upholding the Principles of the Rule of Law, Equality Before the Law and overriding Majesty of Law OUGHT NOT BE WRITTEN. Dr Swamy has said that he would prove his case against P Chidambaram in the Supreme Court.

Prima facie, Dr Swamy established a case against P. Chidambaram. My reading of the Judgment given by the learned Judge O.P Saini shows that by and large even he has not disagreed with Dr Swamy. And yet without Summoning P. Chidambaram to his Special Court, he has given a new, original and innovative definition of criminality on the part of P. Chidambaram by illegally denying Dr Subramanian Swamy, his fundamental right to cross examine P. Chidambaram in open court.

The request of Dr Swamy was that the Special Court should issue summons to Chidambaram. Without considering and conceding this simple and elemental legal request, the Special Judge has displayed all the vagaries of an Oriental Potentate and completed the case against Chidambaram in a summary manner without even summoning him to the court!

The most amusing and not totally innocent part of the judgment is this:

Up to Paragraph No.51 of the Judgment, the Special Judge is focussing on the known facts of the case. Then he springs a surprise in Paragraph No. 52 of the judgment which I am reproducing below:

Paragraph No.52. “LET ME MAKE A BRIEF SURVEY OF LAW RELATING TO CONSPIRACY”.

Is This Special Judge conducting a Mock Trial or an Imaginary Trial or a Fictitious Trial? Without Summoning P. Chidambaram to the Court, he has conducted a Mock Trial running counter to all known Canons of Both Substantive Law and Adjectival Law. I am unable to understand as to why the learned Judge is showing an extraordinary sense of urgency and anxiety to shift the focus of his attention from the corrupt deeds / misdeeds of P. Chidambaram attracting Section 13 of the Prevention of Corruption Act to the vague and vacuous “conspiracy theories” under the Indian Penal Code! The real joke is that Dr Subramanian Swamy never used the word “criminal conspiracy” in his Petition to the CBI Special Court for Summoning P. Chidambaram as a co-accused to the Special Court.

No wonder the learned Judge has been able to come to the following pre-determined, pre-judged and prejudiced conclusion declaring P. Chidambaram as innocent:

“60. NOW THE QUESTION ARISES AS TO WHAT IS THE ROLE OF MR. P. CHIDAMBARAM. THE ACTS ATTRIBUTED TO HIM BY THE COMPLAINANT ARE, HIS COMPLICITY IN FIXING THE PRICE OF THE SPECTRUM LICENCE AT 2001 LEVEL AND PERMITTING TWO COMPANIES, WHICH RECEIVED THE LICENCE, NAMELY, SWAN AND UNITECH, TO DILUTE THEIR SHARES EVEN BEFORE ROLL-OUT OF THEIR SERVICES”.

“61. HOWEVER, BOTH OF THESE ACTS, ATTRIBUTED TO HIM, ARE NOT PER SE ILLEGAL OR VIOLATIVE OF ANY LAW. HE AGREED WITH MR. A. RAJA NOT TO REVISE OR REVISIT THE ENTRY FEE OR SPECTRUM CHARGE AS DISCOVERED IN 2001. NON-REVISION OF PRICES IS NOT AN ILLEGAL ACT BY ITSELF. THE COMPETENT AUTHORITY IS ALWAYS AT LIBERTY TO DECIDE IN ITS DISCRETION TO NOT TO REVISE THE PRICES OR FEE FOR ANY GOODS OR SERVICES. THE SAME ENTRY FEE/ SPECTRUM CHARGES CONTINUED EVEN AFTER 2007-08. SAME IS THE CASE WITH DILUTION OF EQUITY BY A COMPANY. IT IS NOT PER SE ILLEGAL NOR WAS IT PROHIBITED AT THE RELEVANT TIME. HOWEVER, SUCH ACTS MAY ACQUIRE CRIMINAL COLOUR/ OVERTONES WHEN DONE WITH CRIMINAL INTENT”

A man with ordinary commonsense can only draw this reasonable inference from a Careful reading of Paragraph No. 61 of the highly politicized judgment, devoid of any Law or Justice, given by the Learned Judge quoted above. Even if a an avoidable public loss of Rs.175,000 Crores has been caused to the State Exchequer by the collective decision of A. Raja and P. Chidambaram NOT TO REVISE OR REVISIT THE ENTRY FEE OR SPECTRUM CHARGE AS DISCOVERED IN 2001, EVEN THEN IT IS NOT AN ILLEGAL ACT! In the same Paragraph No. 61 , the turgid  waters of Judicial confusion overflowing the known and time-honored and understood banks of Both Substantive Law and Adjectival Law, can be seen with amusement in the last two sentences of Paragraph No.61 “IT IS NOT PER SE ILLEGAL NOR WAS IT PROHIBITED AT THE RELEVANT TIME. HOWEVER, SUCH ACTS MAY ACQUIRE CRIMINAL COLOUR/ OVERTONES WHEN DONE WITH CRIMINAL INTENT.”

On the same set of facts, all the acts of Former Union Telecom Minister Raja are either illegal or criminal or both. Even though P. Chidambaram also sat with him in the same room, at the same time, on the same date, yet all the acts or actions of P. Chidambaram are neither illegal or criminal or both but actuated by the highest consideration of overriding and impersonal PUBLIC INTEREST. So much for the Rule and Reign of the Principles of the Rule of Law, Equality before the Law and the Overriding Majesty of Law in the CBI Special Court.

Just one day prior to the political verdict given by the learned Special Judge of the CBI Court on the 4^th of February 2012, the Supreme Court Judges Justice J.S Singhvi and Justice A.K Ganguly had given a historic judgment cancelling all the 2G Spectrum Licences issued by the UPA Government. These Licences were issued by former Union Telecom Minister A. Raja after a series of joint meetings with Pa Chidambaram, a fact which has been duly noted by the Supreme Court. This verdict of the Supreme Court indicts not only A. Raja but also P. Chidambaram and the Prime Minister Manmohan Singh. Against this background, the learned Special Judge giving an absolutely clean chit to P. Chidambaram to the effect that he is pure as a crystal and scrupulously honest beyond suspicion has indeed shocked all the conscientious and patriotic citizens of India.

The CBI Special Judge quotes from Dr Swamy’s Statement:

“This evidence reveals the connivance, collusion and the consent of the then Finance Minister Sh. P. Chidambram in the decisions taken by the then telecom Minister in the matter of:

A. Fixing the price of the spectrum licence; and

B. In the matter of permitting two companies, which received the licence, namely, Swan and Unitech, in dilution of shares even before roll-out of their services.”

Further:

“I have also brought on record evidence to show that Sh. Chidambram is also guilty of breach of trust in question of national security for not disclosing that Etisalat and Telenor were black listed by Home Ministry Advisory.”

After reporting these two allegations the confused and self contradicting CBI Judge makes a fantastic and fanciful claim in the very next paragraph:

“46. I may add that the complaint did not contain any allegations against Mr. P. Chidambaram, as is clear from a bare reading of the facts, extracted above in detail.”

Perhaps George Orwell (1903-1950) had learned Special Judges in view when he wrote the following immortal lines: “A scrupulous writer, in every sentence that he writes, will ask himself at least four questions, thus: ‘What am I trying to say? What words will express it? What image or idiom will make it clearer? Is this image fresh enough to have an effect? And he will probably ask himself two more: Could I put it more shortly? Have I said anything that is avoidably ugly? But you are not obliged to go to all this trouble. You can shirk it by simply throwing your mind open and letting the ready-made phrases come crowding in. They will construct your sentences for you --- even think your thoughts for you, to a certain extent --- and at need they will perform the important service of partially concealing your meaning even from yourself. It is at this point that the special connection between politics and the debasement of language becomes clear. Such a language is designed to make lies sound truthful and murder respectable and to give an appearance of solidity to pure wind.”

Thus we can see there will be a rush of unnecessary and irrelevant words like criminal conspiracy, social conspiracy, economic conspiracy and such a plethora of never ending conspiracies invading the text of the politically expedient and legally abominable judgments, making a mockery of any system of law.

Supreme Court Judge Justice G.S Singhvi in his judgment cancelling all the 2G Spectrum Licences has quoted the views of Shri Prashant Bhushan and Dr. Subramanian Swamy with approval. To quote the words of Justice G.S Singhvi:

“Both, Shri Prashant Bhushan and Dr. Subramanian Swamy pointed out that although the Prime Minister had suggested that a fair and transparent method be adopted for grant of UAS Licences through the process of auction, the Minister of C&IT casually and arbitrarily brushed aside the suggestion and granted licence to the applicants for extraneous reasons.”

In my considered view, not only the men in the Executive Arm of the Government, or the Legislative Arm of the Government but also the Judicial Arm of the Government ought not to take decisions on EXTRANEOUS CONSIDERATIONS.

The Judgment given by the CBI Special Court is bad in Law and worse in Justice. Truth and Justice have been choked to death with impunity using the impregnable umbrella of Judicial Independence. In 1954, Sir Winston Churchill told the House of Commons that Judges are required to conform to standards of life and conduct far more severe and restricted than that of ordinary people. The Prime Minister asked rhetorically: “What would be thought of a Lord Chief Justice if he won the Derby?” Not insularity but dignity, not cloistered or ostrich-like refusal to run away from the realities but an exalted aloofness with eyes open, heart sensitive and head ready to heed progressive humanism --- that is the Judge par exellance from Magistrate or Munsif to the highest on the Bench, attired and articulating the Law which binds all. The Robe Syndrome is a Pathology which must be therapeutised because the JUDGE & Co is run is a matter of profound public concern for a democracy. A Judicial Ombudsman is not an outrageous idea but a matter for deeper thought, public debate and delicate but constructive constitutional provision. TRUTH is subversive when UNTRUTH wears the mask of MAJESTY. But TRUTH will out someday. Let us midwife that day…. If Lawyers are polluted and Judges are contaminated, the institution of Law collapses. So it is necessary as part of the Grammar of Justice, Justices and Justicing that there should be a machinery to maintain the morality and morale of Justices and the high mores of the Fraternity. So I plead for a Judicial Commission to see the TRANSPARENCY and ACCOUNTABILITY become part of the Jurisprudence of Immaculate Justice.”