Evidence vs perception

The 2G verdict asserts inviolability of procedural justice and is a triumph for principles of fair trial.

Written by Dr Ashwani Kumar | Updated: December 26, 2017 1:18:40 am
Evidence vs perception The judgment raises larger questions of fundamental importance. (Illustration: C R Sasikumar)

The verdict in the 2G spectrum allocation cases is significant on various counts. By categorically declaring that no case of “high political corruption” was made out, in the absence of proven facts through “legally admissible evidence,” the court has drawn a distinction between persecution and lawful prosecution. In the process, it rejected the evidentiary value of the Comptroller and Auditor General (CAG) report, earlier junked by the Public Accounts Committee (PAC), in establishing a case of corruption.

Judge O.P. Saini’s finding that “everybody was going by public perception created by rumour, gossip and speculation… (which) has no place in judicial proceedings” is a resounding triumph of the principles of fair trial over trial by accusation. The court affirmed what is now an integral part of our jurisprudential lexicon, that trial by media militates against the rule of law and is, therefore, an infraction of the basic structure of the Constitution. In stating that he waited for the last seven years for “some legally admissible evidence” in support of the prosecution’s case, the judge has demonstrated expected fidelity to facts over fiction, to procedural regularity and a degree of judicial detachment as a guarantee of justice according to law. The decision validates William Hazlitt’s celebrated reminder that “calumny requires no proof”.

The ruling is distinguished by its candour and forthright indictment of the prosecutors for having “miserably failed” to establish criminal culpability of any of the accused. Considering the huge political fallout of the case and the fact that the related investigation was monitored by the apex court itself, such candour testifies to a robust judicial edifice. Even as the verdict is likely to be appealed, its significance in asserting the inviolability of procedural justice and integrity of the judicial process cannot be emphasised enough.

The attempt by those stung by the verdict to juxtapose the trial court’s decision with the judgment of the Supreme Court in the 2G case, to fault the former is utterly misconceived and betrays a feigned ignorance of the scope of the SC’s jurisdiction. The extraordinary writ jurisdiction of the apex court was invoked to pronounce upon the validity of the Department of Telecom’s “first come- first serve” policy in the allocation of Unified Access Services (UAS) licenses. The Supreme Court invalidated the licences essentially on the ground that the policy and its implementation did not meet the standards of reasonableness, fairness and absence of arbitrariness which are integral to the constitutional promise of equality under Article 14. The apex court did not and could not have been called upon to decide the question of criminality as if it was a court of fact. It may be usefully recalled that while similarly setting aside coal block allocations on the touchstone of Article 14, the Supreme Court, speaking through Chief Justice R. M. Lodha specifically, stated that to avoid a possible misconstruction of its judgment in deciding upon the constitutionality of the coal block allocations, the court was not expressing any opinion on the alleged criminality.

Clarifying the SC division bench judgment in the 2G case, concerning the auction as a mode for distribution of the state’s natural resources, a Constitution Bench of the apex court, speaking through Justice D.K. Jain, in the Presidential Reference, held that, “.. The methodology pertaining to disposal of natural resources is clearly an economic policy. It entails intricate economic choices and the court lacks the necessary expertise to make them. As has been repeatedly said, it cannot, and shall not, be the endeavour of this court to evaluate the efficacy of auction vis-à-vis other methods of disposal of natural resources. The Court cannot mandate one method to be followed in all facts and circumstances.”

Considering the scope of review jurisdiction exercised by the apex court in the 2G case, it is futile, therefore, to invent an inconsistency between the judgment of the highest court and that of the trial court. The former affirmed the Constitutional imperatives of fair play, transparency and reasonableness of the government’s policy decisions and the latter decided the issue of corruption and criminality — the exclusive province of the trial court. Justice G.S. Singhvi, who authored the 2G judgment of the Supreme Court, has since confirmed this distinction.

The judgment raises larger questions of fundamental importance. How do we, consistent with the fundamental rule of constitutional jurisprudence, ensure that a person is presumed innocent until proven guilty in an age in which “gossip is gospel” and a person stands condemned by accusation alone? Can the right to know and freedom of expression be stretched to a point where human dignity, which stands at the pinnacle of the hierarchy of fundamental rights, is repeatedly compromised? Likewise, can we allow the cause of justice to be defeated through trial by media? In seeking to win the perception battle, is it fair to sacrifice innocence and truth in a trade off between political expediency and principle? What is the recourse, if any, for those who suffer endless trauma, loss of reputation and social ostracisation in various ways while criminal investigation and trial lingers on endlessly? We must also ask ourselves whether political democracy in the country can survive if reckless allegations without factual foundation are allowed to compromise the institutional integrity of democratic institutions. The answer to these troubling but necessary questions will define the future and resilience of our constitutional democracy and our proclaimed commitment to the rule of law.

The writer, a former union law minister, is a senior advocate in the Supreme Court. Views expressed are his own.

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