For all its stout defence in Parliament, the Centre is hard-pressed to make at least two major moves against Railway Minister Laloo Prasad Yadav in the next few days before the Patna High Court. The first move is due when the newly-constituted bench of the High Court, comprising Justices Aftab Alam and Chandramauli Kumar Prasad, begins to hear Yadav’s petition, challenging the validity of the Bihar Governor’s sanction to prosecute him without consulting the then state government headed by Rabri Devi. The CBI will be under pressure to declare or in some way acknowledge to the High Court that the legal question raised by Yadav had already been settled by a Constitution Bench of the Supreme Court six months ago. In a similar but unrelated case emanating from Madhya Pradesh, Justice S N Variava delivered the judgment, on behalf of five judges of the apex court, upholding the Governor’s authority to act in his own discretion and grant sanction in the teeth of a contrary order issued by the council of ministers. ‘‘If, on these facts and circumstances, the Governor cannot act in his own discretion, there would be a complete breakdown of the rule of law inasmuch as it would then be open for Governments to refuse sanction in spite of overwhelming material showing that a prima facie case is made out,’’ Justice Variava held, adding that democracy itself will be at stake and ‘‘people in power may break the law with impunity’’, safe in the knowledge that they will not be prosecuted as the requisite sanction will not be granted. When the Supreme Court laid down the law in this manner in November 2004, a two-judge bench of the Patna High Court, comprising Justices Indu Prabha Singh and B K Jha, happened to be at an advanced stage of hearing Yadav’s petition. The hearings concluded and the case was reserved for judgment on December 6. But the bench sat on the matter for two months till one of the judges, Jha, retired on January 31. Laloo Prasad Yadav’s petition was subsequently heard afresh by a second bench, which was again disbanded after the conclusion of the hearings in April, this time because one of the judges recused himself without giving any reason. It was in such circumstances that last week, a bench headed by Justice Variava, the very judge who had laid down the law on sanction, took the extraordinary step of bypassing the Acting Chief Justice of the Patna High Court, Nagendra Rai, and directly selecting the two High Court judges who will constitute the third bench to deal with this slippery case. The new bench headed by Justice Alam has been directed to dispose of the matter within a month. Besides telling Justice Alam’s bench about the Supreme Court judgment on sanction, the Centre may soon file an appeal against the clean chit given to Yadav and Rabri Devi by the Income Tax Appellate Tribunal (ITAT) in July 2004, cancelling a penalty of Rs 40 lakh that had been slapped on them. Since it had ruled that Yadav and Rabri Devi did not have any undisclosed income, the ITAT order could fatally affect the CBI’s chances in its disproportionate assets case against the couple. Yet, the Centre failed to appeal against the ITAT order before the High Court. This omission put the Centre in a spot on April 26, when the apex court bench headed by Justice Variava demanded to know why no appeal had been filed against the ITAT order. Solicitor-General G E Vahanvati earned a short reprieve for the Centre by promising a review of the matter. The Centre is, thus, under pressure to file a belated appeal against the ITAT order by May 10, which is the next date of hearing in the Supreme Court.
