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CURRENT ARTICLES OF V. SUNDARAM (JANUARY 2010 ONWARDS)

Thursday, February 2, 2012

Supreme Court Upholds A Citizen's Right To Prosecute Corrupt Public Officials

SUPREME COURT

UPHOLDS A CITIZEN’S

RIGHT TO PROSECUTE

CORRUPT PUBLIC

OFFICIALS


By V. SUNDARAM I.A.S (r)

Dr Subramanian Swamy, an exemplary nationalist citizen, has won a great victory for and on behalf of the common citizens of India in their current ongoing war against the Himalayan corruption in India’s public life and more particularly against the Alpine corruption of Antonia Maino (a.k.a Sonia Gandhi) and her clan, both in India and in Italy. It will not be too much to say that Dr Subramanian Swamy has become a National Iconic Figure, indeed the Conscience Keeper of our Nation today.
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Justice G.S. Singhvi        Justice A.K Ganguly


The Appeal Petition of Dr Subramanian Swamy, President of Janata party and former Union Minister for Law and Commerce, in the Supreme Court of India against the Orders of the Delhi High Court refusing to issue a Writ of Mandamus to the Prime Minister Manmohan Singh to pass an order for grant of sanction for prosecution of Union Minister A Raja under Section 19 of the Prevention of Corruption Act has been allowed by a Bench of Supreme Court of India consisting of Justice G.S. Singhvi and Justice Asok Kumar Ganguly.

These two great judges, Justice G.S. Singhvi and Justice A.K Ganguly, have made Constitutional History by upholding the Fundamental Right of a citizen to seek the prosecution of corrupt public servants under the Prevention of Corruption Act. These two Men In Robes are held in the highest esteem by all the patriotic, enlightened and responsible citizens of India for their unimpeachable integrity and impeccable judicial conduct.

 Dr Subramanian Swamy

Dr Subramanian Swamy, an exemplary nationalist citizen, has won a great victory for and on behalf of the common citizens of India in their current ongoing war against the Himalayan corruption in India’s public life and more particularly against the Alpine corruption of Antonia Maino (a.k.a Sonia Gandhi) and her clan, both in India and in Italy. It will not be too much to say that Dr Subramanian Swamy has become a National Iconic Figure, indeed the Conscience Keeper of our Nation today. Duty- Honour-Country, these are his hallowed watch words setting the standard for all his public actions as a National Leader. They are his rallying points:
To build courage when and where courage seems to fail;
to restore Faith when and where there seems to be little cause for Faith;
to create Hope when Hope becomes Hopeless. 

These two Judges have set aside the Orders of the Delhi High Court by making it clear that a complaint can be filed by any citizen for prosecuting a public servant for an offence under the Prevention of Corruption Act, 1988. They have also said that the authority competent to sanction prosecution of a public servant for offences under the 1988 Act is required to take a decision within the three month time limit specified in the judgment of the Supreme Court in Vineet Narain v. Union of India (1998) 1 SCC 226 and with due regard to the guidelines issued by the Central Government, Department of Personnel and Training and the Central Vigilance Commission (CVC).

For the last more than three years, Dr Subramanian Swamy, the Appellant in this case has been vigorously pursuing, in public interest, the cases allegedly involving loss of thousands of crores of rupees to the Public Exchequer due to arbitrary and illegal grant of licenses in the Telecom sector at the behest of Mr. A. Raja while functioning as Minister for Communication and Information Technology.

Dr Subramanian Swamy sent letters dated 30.5.2009, 23.10.2009, 31.10.2009, 8.3.2010 and 13.3.2010 to the Prime Minister reiterating his request / demand for grant of sanction to prosecute Union Minister A. Raja under the Prevention of Corruption Act 1988.

After 1 year and 4-1/2 months of the first letter written by him, Secretary, Department of Personnel and Training, Ministry of Personnel sent letter dated 19.3.2010 to Dr Swamy mentioning therein that the CBI had registered a case on 21.10.2009 against officers of the Department of Telecommunications (DoT) and others and that the issue of grant of sanction for prosecution would arise only after perusal of the evidence collected by the CBI and that it would be PREMATURE TO CONSIDER SANCTION FOR PROSECUTION AT THAT STAGE.

On receipt of the above communication, Dr Subramanian Swamy filed a Civil Writ Petition No. 2442/2010 in the Delhi High Court and prayed for issue of a Writ of Mandamus to the Prime Minister to prosecute Union Telecom Minister A. Raja. The Learned Delhi High Court dismissed the Writ Petition of Dr Swamy on the grounds that “matter is being investigated by the CBI, and the investigation is in progress”. The real comedy of the situation is that no inquiry had in fact been initiated by the CBI up to that point of time and therefore the Delhi High Court made a cardinal mistake by making the reference to a CBI investigation which had not yet begun. The Attorney General Vahanvati had succeeded in misleading the Delhi High Court in the manner and measure required, not by the letter or spirit of the law but by the fleeting and floating exigencies and expediencies of his high political Law Office.

The legally abominable argument of the “learned” Attorney General Vahanvati to the effect that a private citizen like Dr Subramanian Swamy had no “locus standi” to seek sanction from the Prime Minister for prosecuting Union Minister A. Raja has been summarily rejected by both Judges Justice G.S. Singhvi and Justice AK Ganguly.

According to Justice G.S. Singhvi there is no provision either in the 1988 Act or the Code of Criminal Procedure, 1973 (CrPC) which bars a citizen from filing a complaint for prosecution of a public servant who is alleged to have committed an offence.

Justice G.S. Singhvi has reiterated the judgment of the Constitution Bench in A.R. Antulay v. Ramdas Sriniwas Nayak 21 (1984) 2 SCC 500. “Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision.”

I fervently applaud the view of Justice A.K Ganguly that “The right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the Court in order to set the criminal law in motion against a corrupt public official. This right of access, a Constitutional right should not be burdened with unreasonable fetters.”

Justice G.S Singhvi in his judgment has invited attention to the case of Vineet Narain v. Union of India (1996) 2 SCC 199, wherein the Supreme Court referred to the allegations made in the writ petition that Government agencies like the CBI and the revenue authorities have failed to perform their duties and legal obligations ….

In paragraph 58 of that judgment, the Supreme Court gave several directions in relation to the CBI, the CVC and the Enforcement Directorate. In para 58 (I)(15), the Court gave the following direction:
“TIME-LIMIT OF THREE MONTHS FOR GRANT OF SANCTION FOR PROSECUTION MUST BE STRICTLY ADHERED TO. HOWEVER, ADDITIONAL TIME OF ONE MONTH MAY BE ALLOWED WHERE CONSULTATION IS REQUIRED WITH THE ATTORNEY GENERAL (AG) OR ANY OTHER LAW OFFICER IN THE AG'S OFFICE.”

In the same judgment, the Supreme Court had also made the following observations in the larger public interest which are worth quoting in this context.
“The facts and circumstances of the present case do indicate that it is of utmost public importance that this matter is examined thoroughly by this Court to ensure that all government agencies, entrusted with the duty to discharge their functions and obligations in accordance with law, do so, bearing in mind constantly the concept of equality enshrined in the Constitution and the basic tenet of rule of law: “Be you ever so high, the law is above you. … This is imperative to retain public confidence in the impartial working of the government agencies.”

JUSTICE G.S SINGHVI IN HIS LATEST JUDGMENT HAS UPHELD THIS TIME-LIMIT OF THREE MONTHS FOR GRANT OF SANCTION FOR PROSECUTION, WITH AN ADDITIONAL MONTH BEING ALLOWED WHEREVER CONSULTATION WITH THE ATTORNEY GENERAL (AG).

The Office of the Prime Minister cannot function like the Durbar of a despotic Mughal Emperor like Aurangazeb. This Office has strictly displayed all the vagaries of an Oriental Potentate like Chenghiz Khan. I am saying this because they did not deem it necessary to send even an interim reply to Dr Subramanian Swamy, the appellant in this case. Taking note of the insurmountable difficulties, bottlenecks and other hurdles arising from the rabid red tapism pervading the PM’s Office Justice G.S Singhvi and Justice A.K Ganguly have made the following Observations:

“We may also observe that grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter. What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant. If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. IF THE SATISFACTION OF THE COMPETENT AUTHORITY IS OTHERWISE, THEN IT CAN REFUSE SANCTION. IN EITHER CASE, THE DECISION TAKEN ON THE COMPLAINT MADE BY A CITIZEN IS REQUIRED TO BE  COMMUNICATED TO HIM AND IF HE FEELS AGGRIEVED BY SUCH DECISION, THEN HE CAN AVAIL APPROPRIATE LEGAL REMEDY. The Office of the Prime Minister kept the request of Dr Subramanian Swamy hanging for more than two years.

The Prime Minister Manmohan Singh is probably under the delusion that he is no more than a Despatch Clerk in the Durbar of Sonia Gandhi. He does not realize that the post of the Prime Minister is a public office entrusted with powers to be exercised in public interest alone and not in the interest of his political boss Sonia Gandhi. He has not followed the path of public rectitude at all and instead indulged in repeated acts of breach of public trust in dealing with cases of gargantuan corruption relating to the Cabinet Ministers, Ministers of State and other very senior civil servants. He should have taken utmost care to see that such cases of corruption were duly investigated to ensure that the majesty of law is upheld and the rule of law vindicated.

Now that Justice G.S. Singhvi and Justice A.K Ganguly have clearly laid down the time limit of three months for granting sanction for prosecution in all cases excepting those cases where consultation with the Attorney General (AG) is needed and in such cases one extra month has been granted, all the decks have been cleared for the Prime Minister and his Office to accord immediate sanction to Dr Subramanian Swamy for the prosecution of Sonia Gandhi under the Prevention of Corruption Act. Even if the Prime Minister’s Office feels politically constrained to oblige Sonia Gandhi by remaining silent, or through masterly inactivity, it has to be DEEMED that the sanction for prosecution of Sonia has already been GRANTED.

THIS IN EFFECT IS THE BURDEN OF THE HISTORIC AND LANDMARK ORDER PASSED BY JUSTICE G.S. SINGHVI AND JUSTICE A.K GANGULY IN THE APPEAL PETITION FILED BY DR SUBRAMANIAN SWAMY.

Sonia Gandhi the Congress party supremo has been a public servant from 1991, initially by getting a Government bungalow allotted to her in No:10 Janpath as a residence for life. Since 2004 she has been Chairperson of the National Advisory Council (NAC) with Cabinet rank which is administratively serviced by Cabinet Secretariat. Her Order of Appointment as Chairperson of the National Advisory Council was signed by the Cabinet Secretary. I fully endorse the view of Dr Subramanian Swamy that Sonia Gandhi, a public servant, is culpable of criminal offences eg, offence u/s 13 of Prevention of Corruption Act in the Bofors scam and hence the criminal law has to be set in motion and for which he sought the sanction of the Prime Minister in his letter dated 15th April 2011.

A careful reading of the separate judgments given by Justice G.S. Singhvi and Justice A.K Ganguly clearly brings out the fact that DUE PROCESS is not a mechanical yardstick. It does not afford mechanical answers. Justice Felix Frankfurter rightly said: “There is no table of weights and measures for ascertaining what constitutes the DUE PROCESS.”

Empiricism implies judgment upon variant situations by the wisdom of experience. Ad-hocism in adjudication means treating a particular case by itself and not in relation to the meaning of a course of decisions and the guides they serve for the future. There is all the difference in the world between disposing of a case as though it were a discrete instance and recognizing it as part of the process of judgment, taking its place in relation to what went before and further cutting a channel for what is to come. No mischievous effort should be made to imprison the DUE PROCESS within tidy categories. Such an effort misconceives the underlying nature of DUE PEOCESS and is a futile endeavour to save the judicial functions from the pains of judicial judgment. Against this background, it will be clear that the Orders passed by these two Judges Justice G.S. Singhvi and Justice A.K Ganguly have indeed made judicial history.

Lord Edward Coke (1552-1634)
Chief Justice of the King’s Bench

Let me conclude in the bracing words from the judgment of Justice A.K Ganguly:
Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity, which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it. In this connection we might remind ourselves that courts while maintaining rule of law must structure its jurisprudence on the famous formulation of Lord Coke where the learned Law Lord made a comparison between “the golden and straight metwand of law” as opposed to the “uncertain and crooked cord of discretion”.”

Post Script:

The Union Minister for Law (nay, Lawlessness), for Justice (nay, InJustice), the Office of the Prime Minister, the Office of the Union Home Minister, all taken together, couldn’t care less for the golden and straight metwand of law immortalized by Lord Coke. They are only committed to upholding the uncertain and crooked cord of Sonia discretion, nay, indiscretion, at any public cost and in spite of all the threats and dangers posed to the very survival of India as a Nation!

  

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