Opinion Account for the delay
The judgment has clearly criticised the PMO for inaction how can the PM be insulated from his office?
The judgment has clearly criticised the PMO for inaction how can the PM be insulated from his office?
The Supreme Court judgment on the issue of locus of the complainant and the principles governing grant of sanction is indeed a very good law in the fight against corruption though delivered in a bad case. It is relevant to briefly recall the facts of this case. Subramanian Swamy made a detailed representation on November 29,2008 to Prime Minister Manmohan Singh to accord sanction for the prosecution of the then telecom minister,A. Raja,for offences under the Prevention Of Corruption Act regarding undue favours to some telecom companies. He alleged that,in the allocation of 2G spectrum,there was a serious loss of public revenue,since,without auction,which were priced at 2001-levels to benefit private players. In 2001,there were only four million subscribers,compared to 350 million then,and therefore,the 2001 price could not have been taken. He also alleged that some companies that obtained licences at a low price earned substantial profits by offloading only a part of their equity after getting spectrum. Swamy also filed reminders thereafter in the PMO.
After nearly one year and five months,he received a letter from the secretary,department of personnel,that the CBI had registered a case on October 21,2009 and,therefore,the issue of granting sanction would arise only after this evidence was perused. The Delhi high court also repelled the challenge to the said direction by holding that when investigation by the CBI is in progress,no mandamus or direction can be given to take a decision on the sanction.
In the aforesaid background,two important questions arose. The first being whether Swamy has the locus standi for prosecution of A. Raja for the alleged offences under the Prevention of Corruption Act. The court rejected the argument of the attorney general,which contested this claim. Noting the Constitution Bench decision in the A.R. Antulay case,it was held that locus standi of the complainant is a concept foreign to criminal jurisprudence except where the law creating an offence provides for the eligibility of the complainant. Whenever an offence is committed,it is also an offence against the society,which,for orderly development,is interested in the punishment of the offender. If this is the public policy underlying penal law,who brings the offence to the notice of the competent authority is immaterial,unless the law provides otherwise. Such a right of a private complaint cannot be whittled down.
The second question was the issue regarding the grant or refusal of sanction. The Supreme Court has clearly held that the only thing which the competent authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. It cannot undertake a detailed inquiry to decide whether or not allegations made against the public servant are true. If the material is sufficient for prosecution of public servant,then it has to accord sanction. If the satisfaction is otherwise then the competent authority can refuse sanction. In either case,the decision taken must be conveyed to the complainant,and in case he feels aggrieved he can take recourse to appropriate legal remedy.
In the light of the Supreme Court judgment in the Vineet Narain case,the court held that a time-limit of three months for the 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 or other law officer. Justice Ganguly,in his separate,yet concurring judgment,has suggested certain guidelines for the consideration of Parliament,which,among others,suggest that if at the end of three months (extended by one extra month for legal consultation),no decision is taken,then sanction will be deemed to have been granted. It is respectfully submitted that this,at best,will be an observation and not a decision,because Justice Singhvi has not concurred with the same. The proposed Lokpal bill removes the obligation of sanction altogether.
The role of the PMO has come for severe criticism. Officers there sent the application seeking sanction to the department of telecom,where the minister seized the opportunity and justified the grant of licences. Officers in the PMO and ministry of law and justice,who were to give proper advice,including the seriousness of offence and the time limit in the Vineet Narain case,failed to do so and the matter was kept pending. The court also observed that Swamy did not allege any malafide against the prime minister,though the delay that happened in his office is unfortunate.
The larger question remains can the PM be insulated from the PMO? The 2G scam has shocked the conscience of the nation because of the enormity of loot. The seriousness of the offence was very much in the public domain. The prime minister himself has cautioned A. Raja in his various letters in November-December 2007,and yet he proceeded,and the PM took no steps to prevent it. In this light,if the PMO kept sitting on the matter for a full 16 months,can the PM remain completely unaccountable? The PM has to lead and govern the nation,and if he could not lead his own office on such a sensitive issue,then the country is entitled to draw its own conclusions.
The writer is a BJP MP,general secretary and chief spokesperson,and a senior advocate in the Supreme Court
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