Failing the fairness test

The legality of Manmohan's summoning order will be tested on the touchstones of our constitutional and criminal jurisprudence.

Written by Dr Ashwani Kumar | New Delhi | Updated: March 20, 2015 2:18 pm
manmohan singh, coal scam, coal block allocation, hindalco, manmohan coal scam, manmohan singh coal block, kumar mangalam birla The legality of Manmohan’s summoning order will be tested on the touchstones of our constitutional and criminal jurisprudence. (Source: Express Archive)

Special CBI court order summoning Manmohan Singh as an accused in the Hindalco case is legally unsustainable and fundamentally flawed, writes former Law Minister Ashwani Kumar.

Former Prime Minister Manmohan Singh has been summoned to stand trial for serious criminal offences under the Indian Penal Code and Prevention of Corruption Act in the matter of coal blocks allocation. The case and its outcome is understandably a matter of public interest.

The legality of the summoning order will be tested on the touchstones of our constitutional and criminal jurisprudence as well as on the validity of the explicit and implicit premises of the order. This enquiry ought to begin with the question of whether the judge was right in drawing inferences of possible criminality through deduction and whether the facts relied on by the judge constitute “sufficient ground” to support the summoning order against a former prime minister/ coal minister, who was not among the original accused, and against whom the CBI, the prosecuting agency, had twice concluded there was no prosecutable evidence.

At a more fundamental level, we need to consider whether the oppressive prosecutorial process of the criminal justice system can be unleashed against a citizen by the court itself on the basis of subjective deductions of wrongdoing — an approach that militates against the basic principles of a fair trial, an integral component of the rule of law and the basic structure of the Constitution.

Indeed, a stretched finding of criminal culpability for serious offences with penal consequences and implications on a citizen’s right to liberty, reputation and dignity runs afoul of the legal maxim: “That which does not appear will not be presumed to exist” and that “extreme law is often extreme injustice”.

The core of the summoning order against Manmohan Singh is premised on the fact that he first allowed the Talabira II coal block allocation to be reopened, despite having approved its earlier allotment to Neyveli Lignite Corporation (NLC). And that he approved then coal secretary P.C. Parakh’s suggestion to “accommodate” Hindalco in the Talabira II and III blocks, while ignoring the proposals dated September 21 and September 26, 2005, of two PMO officials. There is also a suggestion that excessive coal was allocated to Hindalco and that the right of NLC was negated in violation of established procedures and approved guidelines, resulting in a loss for the latter and windfall profits for the former. On this basis, Manmohan Singh has been summoned to stand trial for offences under Sections 120-B and 409 of the IPC and under Sections 13(1)(c) and 13(1)(d)III of the Prevention of Corruption Act.
While it is beyond the scope of this article to minutely dissect each and every aspect of the summoning order, it is apparent that the order is legally unsustainable and fundamentally flawed. I say so with respect and for the following reasons.

First, Manmohan Singh’s decision to prefer/ endorse a reasoned proposal by the head of the concerned administrative department (the coal secretary in this case), which was supported by his principal secretary, over the proposals submitted by the two joint secretaries in the PMO, cannot in itself be faulted as being in “manifest disregard of safeguards against detriment to public interest”. Second, reading the order as a whole, it is obvious that the proposal eventually accepted by Manmohan Singh was the result of unhurried reflection at various levels, supported by cogent reasons and in furtherance of public interest. Extracts of reasons reproduced in Paragraph 29 of the court order and contained in Parakh’s note August 11, 2005, are reproduced below:
“M/s Hindalco was the first applicant for the block and had applied for it on August 16, 1996.
Coal linkage earlier granted by MCL [Mahanadi Coalfields Limited] for the project could be utilised as lease of connected bauxite mines could not be obtained for setting up their aluminium plant. Government of Orissa has favoured allocation of Talabira II block to M/s Hindalco in preference to M/s Neyveli Lignite Corporation.
 n view of the current shortage of coal in MCL areas, MCL will not be in a position to honour earlier linkages given for their aluminium plant.”

Also, extracts from Parakh’s note dated September 9, 2005, which is relevant and referred to in the summoning order, are reproduced as under:
“In the light of the latest communication from the chief minister of Orissa recommending allotment of Talabira II block in favour of M/s Hindalco, the matter has been re-examined. Government of Orissa have indicated their clear preference for allotment of this block to M/s Hindalco in the interest of creating more employment and growth of manufacturing sector in the state… In order to give a reasonable level of satisfaction for M/s Hindalco Aluminum Plant while keeping interest of NLC also in mind proposals made at Para 4 of Pages 13-14/N appear reasonable. With 50:50 distribution of reserves of Talabira II block along with 33 million tonnes of reserves of coal from the barrier it will be possible to meet about 80 per cent requirement of M/s Hindalco. While in absolute terms NLC will get the same quantity of coal as M/s Hindalco its percentage satisfaction will be much lower. However, since MCL and NLC are proposing to set up a joint venture for power plant out of coal derived from Talabira II and Talabira III full requirement of NLC would be made available from the coal reserves of MCL in Talabira III.”

These notes demolish the “prima facie” view of the court that the interest of NLC was ignored. Clearly, the trial court’s order, which refers in detail to the official communications, would show that the decisions were taken after considering various inputs and options. The final decision, as approved by Manmohan Singh, was, therefore, not taken “in private or in secrecy” — an essential element in the principles governing the law of conspiracy as reproduced by the learned judge in his order.

The summoning order shows that Manmohan Singh, as the then coal minister, acted on the basis of specific and reasoned recommendations relating to a policy choice. In the process, guidelines, which in law are otherwise amenable to revision in the exercise of executive authority, could certainly have been revised as was considered necessary in the note of September 21, 2005, put up by an official of the PMO endorsing Parakh’s recommendations of September 12, 2005. Further, with regard to the proposal for the amendment of the guidelines, the trial court records in Paragraph 21 of its order “that it is arguable that merely putting up signatures on a note by a senior officer has the effect of approving whatever has been mentioned above” and then goes on to deal with its “consequential effect”. This aspect is important since the officers in the PMO in their notes of September 9, 2005, and September 26, 2005, proposing allocation of coal to Hindalco and NLC, had stated that “the acceptance of the proposal would entail relaxation of the guidelines as stood approved on June 9, 2005”. Hence, the endorsement of the proposal would imply an amendment of the guidelines of June 9, 2005, so that the decision in question is traceable to revised guidelines. It is pertinent to state that the earlier guidelines of June 9, 2005, were also a result of amendments to existing guidelines.

The court finds no criminal conspiracy on the part of the chief minister of Odisha, even while holding (unreasonably, of course) that the CM’s letter advocating that Hindalco be allotted the coal block was procured primarily to scuttle the adverse notes of junior officers. The court, however, discovers such a conspiracy in Manmohan Singh acting on the recommendation of the chief minister of the state that owns the mineral. An inexplicable incongruence in approach indeed. Can a prime minister or a Union minister be accused of criminal misconduct or abuse of office for responding to a chief minister’s recommendation?

An administrative decision by the then coal minister based on a rational justification proposed in various notes and internal memoranda and in furtherance of the paramount national interest of promoting economic activity, employment generation and production of steel and power by an established public limited company cannot reasonably lead to a conclusion of even prima facie culpability for the offences in question. In a mixed economy such as ours, an important role is assigned to the private sector for spurring economic growth and development. In this context, the observations of the 25th meeting of the screening committee on the recommendations of the state of Odisha, as discussed in the trial court’s order, are reproduced:
“The representative from govt of Orissa supported the request of M/s NLC. Representative from ministry of power very strongly supported allocation of Talabira II to NLC. Representative from govt of Orissa further stated that while the power plant of NLC is being supported, it is the aluminium project of M/s Hindalco that would add maximum value and encourage downstream industries having greater employment generation and beneficial multiplier effect. He stated that the existing NTPC and OPGENCO could add capacity to their existing power plants. With increase in economic growth, the country is likely to have aluminium shortage and, therefore, the M/s Hindalco project should be considered for allocation of Talabira II in preference to NLC. Moreover, aluminium production is highly energy intensive and very sensitive to cost of power and, therefore, the captive block becomes a must for the CPP.”

In terms of the above, can it reasonably be said that the decision in question was a “completely indefensible act of a public servant something that no reasonable man would have done having regard to all circumstances”? Can it be said on the authority of the law laid down by the Delhi High Court in the case of Runnu Ghosh and cited by the judge that the decision in question was “such as no one would have taken”? I submit, not.

These questions are all the more relevant in the context of the CBI concluding that no criminal offence was committed by any of the persons involved in the entire process of the allocation of the Talabira II coal block to Hindalco. Two closure reports to the same effect were filed by the CBI when Manmohan Singh was no longer in office. And since the element of “mens rea” is excluded for determining the possible culpability of the accused for substantive offences under Section 13 of the Prevention of Corruption Act, the court, even for the purpose of arriving at “prima facie” satisfaction for issuance of summons, was expected to base its findings on the materials as they were — rather than reading an unstated intendment by an enquiry into the mental processes of those concerned. Such an approach is tantamount to a perverse appreciation of evidence, which vitiates the order.The exercise of jurisdiction to summon the additional accused needs to be so tested. The finding of the court with regard to the need for prior sanction to prosecute is also questionable. Whether, given the tenor of the summoning order and a clear predisposition of mind as disclosed therein, the perspective of the accused will receive an objective and fair consideration is also a matter that should weigh with the court of appeal.

As the wheels of justice grind on, the Supreme Court, as the final arbiter of our liberties, will be called upon to vindicate its raison d’ etre, that is, to ensure that justice is not only done but also seen to be done. It will ask itself, in the words of Justice Cardozo, an eminent judge of the US Supreme Court, whether the trial court has “exercised discretion informed by tradition, methodologised by analogy, disciplined by system”. Indeed, “the judge, even when he is free, is still not wholly free. He is not to innovate at pleasure, he is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is not to yield to spasmodic sentiment, to vague or unregulated benevolence.” The Supreme Court, as sentinel on the que vive, as keeper of the constitutional conscience, will evaluate the summoning order on the basis of larger principles of public law and policy upon which rest the foundations of our criminal justice system, including the salutary principle of procedural law, namely, that official acts are presumed to be regularly and lawfully performed unless proved to the contrary.

We know that law is no respecter of persons, but in the context of criminal processes, the apex court, if and when called upon to pronounce its view, is expected to weigh the consequences of unduly fettering the judgement of decision-makers at the highest level in the matter of preferred policy choices. Indeed, justice is larger than a judgment and law rooted in reason must embrace the realities of life including the challenges of governance. Over to you, my lords.

The writer is a Member of the Parliament (Rajya Sabha) and former minister for law and justice.

For all the latest Opinion News, download Indian Express App

    Live Cricket Scores & Results
    Express Adda