DR. S. AUSAF SAIED VASFI comments on the recent Supreme Court judgement that empowers the Indian citizen to prosecute a corrupt public servant.
Before dealing with the landmark judgement that empowers each and every citizen of the plural country to prosecute an allegedly corrupt government servant – be he a Joint Secretary or a Minister – let us ask a very rudimentary, very simple question: Are all the people equal before the law or not? Or some are equal more than others? To put it differently: Are some less-than-equal? Or are some more than equal?
This quixotic question in a vibrant democracy sounds somewhat odd. But it has been very much alive, kicking and strangulating in our society since long.
DEEMED SANCTION
The path-breaking verdict rather verdicts which have been delivered separately by the two honourable Justices of the Apex Court have been described in various ways: to the politically uncommitted, it is a victory of the Constitution. To the Saffron, it is the second indictment of the Prime Minister, the first being the case of the former CVC, PG Thomas’ appointment fiasco. The most pithy and to-the-point comment came from Mr. KTS Tulsi: The verdict plugs a major loophole by providing for ‘deemed sanction’.
Whatever the judgement, it is not the indictment of the Prime Minister as no Judge says so. In fact, it is the indictment of some sections of bureaucracy manning the Prime Minister’s Office (PMO). It is also an indictment of the Law Ministry as both failed to perform their respective duties to keep the Prime Minister well posted with developments.
To quote the verdict: “We have no doubt that if the Prime Minister had been apprised of the true factual and legal position regarding the representation made by the Appellant, he would have surely taken appropriate decision and would not have allowed the matters to linger on for a period of more than one year,” said the Bench of Justices GS Singhvi and AK Ganguly. Sounding like a note of empathy, the Bench said: “The very nature of the office held by the Prime Minister, he is not expected personally to look into the minute details of each and every case placed before him and has to depend on his advisors and other officers.”
The Saffron, fond of attacking the Prime Minister right and left without any substantial reason, is on a weak wicket in this regard also. Nobody is prepared to buy what the BJP is saying.
What is noteworthy is how the PMO reacted to its indictment. When it said we welcome the judgement and it vindicates the Prime Minister. On the surface of it, this comment appears to be less-than-sound.
AG ARGUMENT REJECTED
The Bench rejected the argument of Attorney General, Mr. GE Vahanvati that the Janata Party president, Mr. Subramanian Swamy, the petitioner in the 2G scam case, had no locus standi to seek sanction for prosecution of the ex-Telecom Minister, Mr. A Raja. The Bench said: “There is no provision either in the 1988 Act (Prevention of Corruption Act) or the Code of Criminal Procedure, 1973 which bars a citizen from filing a complaint for prosecution of a public servant who is alleged to have committed an offence.”
The Apex Court, as referred to above, blamed the PMO for sitting on Mr. Swami’s plea. The PMO was duty-bound to apprise Dr. Manmohan Singh about the seriousness of the allegations against Mr. Raja. To quote the judgement: “Unfortunately those who are expected to give proper advice to the Prime Minister and place full facts and legal position failed to do so.”
The Court did not spare the Law Ministry and said it was bound to apprise the Prime Minister of the facts.
In fact, the Apex Court thinking on the ‘sanction’ has been almost uniform since long. In 1997, in the Vineet Narain Vs. Union of India case, a 3-Judge Bench ordered that the time limit of three months for grant of sanction for prosecution should be strictly adhered to. That judgement also said an additional time of one month should be allowed where consultation is required with the Attorney General or any other Law officer.
Another example: Not long ago, a Parliamentary Standing Committee averred: Once the CBI came to the conclusion that prosecution was necessary and the Director of Prosecution concurred, sanction should be given within 15 days.
Yet another example: On June 23, 2010, the Central Vigilance Commissioner issued guidelines to all ministries and departments, asking them to ‘strictly’ stick to the time-frame fixed in the Vineet Narain case.
RESTRUCTURE SEC. 19 OF P.C.
In the trailblazing judgement, Mr. Justice Ganguly said: Parliament should consider the Constitutional imperative of Article 14 enshrining the rule of law wherein ‘due process of law’ has been read into it by introducing a time limit in Sec. 19 of the P.C. Act, 1988 for its working in a reasonable manner. Making it clear that the power under Sec. 19 must be reasonably extended, he said: “Parliament and the appropriate authority must consider restructuring Sec. 19 of the P.C. Act in such a manner as to make it consonant with reason, justice and fair play.”
The courts, till now, have been prevented by Sec. 19 of the P.C. Act from taking cognizance of crimes committed under the Act by a public servant without prior permission of the Government. Simultaneously, Sec. 197 of the Code of Criminal Procedure apprises us of the general requirement of the prior sanction for the prosecution of a public servant.
Good faith says these provisions should have been there lest the Government servant should feel harassed by the frivolous complaints. With the passage of time the moral fibre got loosened as a whole in the country,so much so thatsome bureaucrats and ministers have turned accused in several cases.
Now the highest palladium of justice has taken a serious note of the moral slide. And it deserves to be taken with equal seriousness. The Lokpal and the Lokayukta Bill passed recently by the Lok Sabha had also dispensed with the provision of prior sanction. This provision, as all of us know, has worked to the detriment of fair trials. To the legal wizards, this provision has neither basis nor defence. It was archaic, ante-Diluvian and a remnant of the imperial and the imperialist past. It had to go, and has gone lock, stock and barrel.
YEARS OF TRIALS IN COURTS
However some legal experts have justifiably expressed the view that years of trials in courts must also go. A case started by father reaches its conclusion during his grandson’s old age. There must be restriction on this longevity of trials. There must, therefore, be a deadline for the courts to decide a case. That understandably necessitates an increase in the number of judges at all levels. Time has come when the Central Government, the Ministry of Law and other judicial institutions see to it that all the vacant posts of judges are filled at all levels, sooner the better.