Vande Mataram

Saturday, December 18, 2010

Jurisdiction of the judiciary

The Apex court ordered to broaden the time span of inquiry into the 2G licensing scam. It also has instructed that the CBI to report to it at regular intervals on the progress made in the inquiry. Some days ago when the CBI counsel had offered to submit the agency's team investigating the 2G matter to the monitoring of SCI, but the bench had declined that offer. Now, the Apex court had taken up the case under it's watch and has given instructions which sound like lecturing a new recruit on how to do a job.

It is not normal for the SCI to dictate modus operandi to any law enforcing agency inquiring into any serious charges. But now the court has taken up the inquiry which adds to the burden of the existing ship load of cases pending before the judiciary. This move comes as the confidence in the executive  for the petitioners and the bench as well was non-existent and eroded respectively.

When the counsel for the PIL petitioners asked for a special team to investigate the matter, the bench said that for the moment it was against constituting any special team to probe the issue and had instead decided to monitor the probe all by itself by calling for reports on the status of the probe being conducted by the CBI and the Enforcement Directorate (ED).

"The CBI shall, if it has already not registered a first information report (FIR) in the context of the alleged irregularities committed in the grant of licences from 2001 to 2006-07, now register a case and conduct thorough investigation. Also  probe as to how several ineligible applicants got licences in 2008 and who was responsible for the same," said the judges.

Apart from conducting a probe into the issues highlighted by the CVC and the CAG report with regards to the allotments made by Raja, the court also instructed the CBI to probe as to why the TRAI and the DoT did not take action against licensees who sold their stakes for thousands of crores and others who did not fulfil the roll-out obligations.

The petitioners had requested the court to take the assistance of one or two officers of unimpeachable integrity in monitoring the investigation being conducted by the CBI. But the bench said that it would decide on this request based on the first progress report of the CBI to be submitted on 10/2/2011, in a sealed envelope. This may leave the media in dismay for being deprived of exclusive scoops. Point to note here is that, the court has not expressed unswerving confidence on the CBI, but has given it a chance to prove its mettle. Shame on an institution which has been doing the policing job for decades, but deserving due to the recent debaucheries from impartiality by the CBI. 

But the slap on the face for the disgraced minister A.Raja came when his  lame duck defence of religiously following the predecessors was turned down, with the judges snapping his counsel saying the question was of violation of policy and not of following the policy as argued by him. Yet the court decided to widen the spectrum of the probe to allotments made by Raja's predecessors from 2001.

The Apex court also censured the Delhi High court for dismissing the petition seeking CBI probe into the 2G spectrum allocation case. “The High Court has committed serious error in dismissing the writ petition. Prima facie, there was sufficient material supported by documents to proceed on the allegation,” the bench observed.

Also, the Apex court has ordered the investigating agencies to probe the transfer of dual technology — CDMA and GSM, opining that while the notification for the dual technology was issued on October 19, 2007, one of the service provider was given the permission a day earlier.

The investigation will also cover huge loans by public sector banks to the beneficiary firms and if DoT officials were signatory to the licence agreements, the bench said. The bench instructed the CBI and ED to carry out investigations without being influenced by any individual, their ranks, functionaries and agencies. This instruction gains importance as the pamolein tainted CVC Thomas has earlier offered to recuse himself from teh 2G specturm license scam, when his credentials were questioned on the grounds of impeccable integrity.

The Government cannot go to the SCI now and submit that they would ensure a free and fair investigation in this case, since their commitment to free and fair investigations took a severe beating when the AG told the court that impeccable integrity could never be considered as a criteria for top jobs of Government.

The CBI might not be able to complete the probe within the agreed deadline as the ambit of the inquiry has been widened to cover the deals right from 2001. The evidences and leads for the Raja wrongs are readily available with recent documents, CVC & CAG reports and the Radia tapes, but still the CBI has to start from square one in the cases of Raja's predecessors. Also the money swindled through 2G scam was routed through hawala investment allegedly to European countries including Netherlands and to the countries in the Arab Gulf including Libya, it is known from the preliminary investigation.So, keeping track of them and trailing them would be a time consuming international policing exercise.

Also, the court has accepted the argument that there should be a nexus between the 2G beneficiaries and the realty loan scam, since most of the firms those got the 2G licenses were  realty firms and they were given exorbitant amount of loans flaunting the basic banking process followed in loans given to ordinary citizens. The basic structure of the constitution was shaken here as citizens of India were being treated differently for some illicit considerations.

The CM of TamilNadu is singing the old tune of action upon proof of guilty, which is a clear departure from his earlier stand of caste based discrimination by aggressive upper castes. The allegations of property worth hundreds of crores have been transferred to the CM's family members were refuted with reasons those fit the definition of the word unreasonable. How could the person handling the property matters of the CM's second wife get the power of attorney for property worth billions with the CM's family not even noticing it.

Well, with the SCI taking up the investigation in it's hands, we can expect not only some incisive questions to the conspirators, colluders, perpetrators and criminals but action too. But, come to think of the investigation process, we can only hope that files do not go missing in this case as in the Adarsh Housing scam.

The most boasted impeccable honesty of the Prime Minister Dr.Manmohan Singh took a dip when he, in May 2010, infamously said that he felt no further inquiry against Raja is needed as Raja himself had told him nothing wrong had happened. Now, with the Supreme Court of India taking up the job of monitoring inquiries to ensure impartiality and justice to the job, his Government has lost it's credibility. This confirms one thing. Dr. Manmohan Singh has stepped into the shoes of the late President Faqruddin Ali Ahmed stamping his approval in anything that came to him for consent. The de facto authority then was Indira Gandhi, now it is Sonia Gandhi.

The jurisdiction of the judiciary has to be widened due to the amoral attitude of the Government and the normative economist attitude of the Prime Minister. We need a Government which cares for the people and a PM who walks the talk rather than the one who doesn't even talk when a run is needed.

Friday, December 3, 2010

Quo Vadis, my dear nation?

We are witnessing disturbing trends in doing business with the judiciary of the nation. Judiciary is the last resort of justice that a common man still trusts. The Apex court of the nation strives to live up to that confidence, come to talk of the recent observations and judgments. We do have a complaint pending inquiry in the Apex court on the questionable probity of some of our former CJs. But that doesn't give anyone the authority to show disrespect, or threaten the judiciary in any manner.s

We have the Attorney General, the top law officer of the Government, making statements threatening the judiciary of questioning its integrity when questions were raised on the Government's questionable decisions. The CVC appointment which is per se non compliant with the regulations, that a person with unquestionable integrity should man that office. The CJI questioned the appointment of Mr.P.J.Thomas as CVC based on service jurisprudence. How a person, who could not even be considered for promotion, was appointed as the top officer to oversee the investigation in all the corruption cases in the nation, with judicial decision still pending on the charge sheet which blames him with criminal conspiracy, since 2002?

When the first bench of the nation's top judicial body asked the Government whether the procedure of checking for impeccable integrity was followed in this appointment, the AG retorted if the criterion of impeccable honesty and integrity in appointments to higher positions has to be followed in every case then all judicial postings would come under scrutiny. This is a clear threat to the judiciary, meaning that if the actions of Government could be questioned on the integrity grounds by the judiciary, the Government could question the actions of the judiciary on the same grounds. The question went unasked in the court room was "Does your statement include the appointment of the AG also?" But that was asked by Justice (Retd) V.R. Krishna Iyer in his article in the Hindu condemning the AG for his insinuations.

This is like talking in a political meeting challenging an opponent with embarrassing exposes whenever the opponent questions your activities. Is this the signal the Government is sending to the world that it has scant respect for the judiciary? The kind of signal sent by the Government that any sort of insinuations could be made against the nation's judiciary and still defend such insinuations as abstract legal argument shows the quality of the people manning the Government. This is not expected from a man supposedly of impeccable integrity, Dr.Manmohan Singh. Is he doing all these on his own or is he operated with a remote control? In both cases the nation doesn't deserve either an arrogant personality or a meek personality holding a powerful responsibility.

Someone has picked up the cue from the Government's action in the Supreme court and had justified their actions questioning the trustworthiness of the judiciary and making it official with the UN. It is none other than the infamous human rights activist Teesta Setalvad.

She has, in the Godhra and related cases, sent 2 letters to the United Nations Commission on Human Rights, which were originally addressed to the SIT chief, complaining about the poor witness protection in the Godhra cases and even contained information of how her former aide Rais Khan Pathan was bought over by the other side. The amicus curiae Harish Salve said that the SIT was disturbed over the constant airing of grievances to the international body. Of course this could put further impediments with too many institutions with different perspectives monitoring an investigation. When the top legal body of the nation monitors an investigation, another is unnecessary and too many monitoring would spoil the course of investigation.

The lawyer for Ms.Setalvad chose to justify the airing of grievances with the UN body, which prompted the SC take serious exception and at one point the bench asked, "Will Switzerland provide you witness protection and not the Supreme Court?” When Setalvad's lawyer said that her NGO was associated with the Geneva based UNCHR, the court said irrespective of associations, the SC would not allow outside bodies to oversee what it was overseeing. Such an insensitive approach towards a sensitive matter brings into question the lawyering skills of Ms. Setalvad in the first place, which should be a worry of practicing lawyers, though.

If a lawyer chooses to dishonor the court she was approaching for justice, what is the point in still pursuing the matter with the same judiciary? She resorts to dilly-dallying when it comes to appeal against judgments not in her. She tries to paste a picture that the High Court of Gujarat is untrustworthy and she has to take the Supreme Court's order for every step in the case, but yet approaching the UN perhaps to caution the Supreme Court of an international repercussion if she feels she was not given a fair deal. This kind of manipulating the system may work with common man with little legal knowledge and no political or other powers to muster, but when dealing with the Apex judiciary of the nation manipulation means mean attitude.

The reason behind such insensitive activities is the Union Government, as it, through it's top legal representative, questioned the very integrity of the judiciary, in the veil of replying to an incisive question and tried to cover it up as discussing an abstract legal point. Suspicion about the probity and impartiality of the judiciary has been expressed openly by the AG in doing so.

The  Government has a lot of explaining to do here. Was that statement by AG reflect the view of the Government? If so, what are the steps taken to check the impeccable integrity and other ethical issues on appointments to highest offices? Or as the AG told it is not a matter of concern, would the Government take steps to amend the law suitably to the effect that impeccable integrity is not a concern for holding any high office in the nation?

The moot question in the mind of common man is "Quo Vadis, my dear nation?" My question is where are you leading the nation, Mr. Prime Minister? If you don't, Sir, please ask your Boss and let the nation know, as we the citizens trust that it would not be a classified information!