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The court’s contradictions

The 2G orders are internally inconsistent,and downplay ministerial and cabinet responsibility

Written by Pratap Bhanu Mehta | Published: February 10, 2012 3:38:32 am

The 2G orders are internally inconsistent,and downplay ministerial and cabinet responsibility

In its implications for political institutions,the 2G orders are distinctly worrying. Simply put,they seem to have put a seal of approval on the evisceration of two cardinal principles of democratic government — ministerial responsibility and cabinet responsibility. And the form in which it is done makes the court somewhat less than convincing and internally inconsistent. Consider,for example,this rather odd sentence: “Unfortunately those who were expected to give proper advice to Respondent No. 1 and place the full facts and legal position before him failed to do so. We have no doubt that if Respondent No. 1 had been appraised of the true factual and legal position regarding the representation made by the appellant,he would surely have taken appropriate decision and would not have allowed the matter to linger for a period of more than one year.” This is an astonishing character certificate to the prime minister. But it is,legally,beside the point. How could anyone determine what someone else would without a doubt have done in the future? A supposition about character,not a consideration of official responsibility,is the ground for exoneration.

But what makes this logic utterly specious are the facts in the second 2G order cancelling licences. The court indicts A. Raja for not following the PM’s advice. But it does not follow through on the implication of its own reasoning. In this instance,the PM and the EGOM knew exactly that a wrong policy was being pursued and did not act on it. So much for the assurance that the prime minister would without a doubt have acted if only he knew. There is an old joke that if you refute yourself,it does not count as a refutation. The court seems to be following a similar logic. The prime minister advised the minister,but he did not do anything to stop the policy from taking effect. In the first judgment,the PM is exonerated because he did not know,but would have acted if he had known. In the second,he knew but merely urged Raja to do something else. His knowledge,which should have signalled at least that he was capable of failing to act,is used as evidence for exoneration.

There are two things odd about this: first,the presumption that the prime minister could not possibly abdicate his responsibility. One ought not to prejudge the matter; as one ought not to prejudge anyone’s guilt till the full facts are out. But the way the judgments are written,it comes across as if the prime minister,simply by virtue of who he is,could not have been guilty of any omission. This is an amazing personification of an office. Although it is a different type of case,even Judge Saini’s order on P. Chidambaram has this quality. It does not contest the fact that Chidambaram knew and concurred with the policy. It finds,contrary to the spirit of the Supreme Court,that the policy decisions were per se not illegal or arbitrary. Much is being made of the fact that in the context of a criminal proceeding,one ought to make a distinction between possible criminal liability and possible moral or political responsibility. But this distinction is beside the point. The court was not being asked whether to judge Chidambaram was guilty. It was being merely asked whether there were grounds for further investigation. Given the court’s own pointed description of how much Chidambaram knew about the policy,and how he was in a position to stop it,the refusal to further look into the matter comes across as not consistent with its own logic. The standard of proof required,even to merely inquire further,would be,by definition,impossible to meet. To reiterate: nothing in this argument implies that the PM or Chidambaram did anything wrong. It merely points out that the reasoning behind the refusal to even inquire further,seems less than convincing.

But the fundamental institutional mistake in this case seems to be to do away with any idea of ministerial responsibility or cabinet responsibility. In the first case,PMO officials are chided for not placing the full facts and legal issues before the PM. It is an interesting legal question,whether this should constitute grounds for appropriate investigation and action against those bureaucrats. Did they — and there seem to be many of them — merely make a mistake,or was it by design? But surely ministerial responsibility enters in somewhere in the picture? Or is every official in the hierarchy now entitled to get off the hook because they were not fully appraised?

It is true that the petition had not itself specifically alleged any wrongdoing by the prime minister. But the court pulls up the government for serious constitutional arbitrariness in the 2G decision. It could have taken the view that there was nothing illegal about the policy. But having thumpingly indicted the policy,the court fails to ask any probing questions of all those in a position to stop it. Having drawn a mighty sword on behalf of accountability,the court then lets it fall entirely on bureaucrats,corporates and Raja alone. Given that it pulls up TRAI,Raja and civil servants,it is a bit surprising that it does not show the slightest interest in the core question: Given that the PM himself seemed to know that a wrong policy was being acted upon,given that an empowered group of ministers could have stopped it,why did they not act? In a parliamentary system of government,is there absolutely no conception of collective responsibility left? Is the prime minister’s office simply like that of a private citizen’s — all he can do is write a letter? The court seems to be rewriting the principles of parliamentary democracy: a minister is not responsible for actions taken in his department. The cabinet is not responsible,even when it has full knowledge and empowered the decisions taken by one of the ministers. This can potentially have huge governance implications,because key actors are not being held responsible for decisions. But it is hard to fathom the revolutionary character of what the court has enunciated. At least Judge Saini’s order is premised on saying no wrong was done in the policy. But the Supreme Court,having said that the policy was arbitrary,goes on to imply that ministers have no responsibility for fundamental decisions of their department,as in the sanction to prosecute case. The cabinet has no collective responsibility for any policy decisions. Never has there been such subtle subversion of the basic principles of a parliamentary government.

Consistency may be the virtue of small minds. But it is also a vital attribute of the rule of law. Whatever be the truth of the matter,the court’s reasoning is internally full of tensions,and inconsistent with the basic norms of accountable governance in a parliamentary democracy. This is what makes these orders,perhaps unintentionally,more political than might appear on first reading of the high-minded principles the court so eloquently and bravely enunciated. What message will this send out? One lesson to all bureaucrats is: the concept of ministerial responsibility is dead. You are on your own. The other is that the order of proof required,merely to to ask questions of ministers,is impossible to meet. Perhaps we need not worry about this. Given who they are,they,without a doubt,act out of virtue. Raja must be wondering — if people can be exonerated for who they are,can they also be so convicted? The tragedy of Indian democracy is that the connection between the authority of and principle in a range of institutions remains tenuous.

The writer is president,Centre for Policy Research,Delhi(Concluded)

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