PM was not advised properly on 2G, SC pulls up PMO

PM was not advised properly on 2G, SC pulls up PMO

Indicting the PMO but letting the Prime Minister off lightly on failure to decide on prosecuting the then telecom minister A Raja in the 2G case, the Supreme Court today set a limit of four months for deciding the issue of sanction for prosecution of corrupt public servants.

Allowing Janata Party President Subramanian Swamy's petition against the Delhi High Court judgement refusing to direct the Prime Minister on his plea for prosecution of Raja, the apex court upheld the right of a private citizen to seek sanction for prosecution of a public servant for corruption.

Rejecting Attorney General G E Vahanvati's arguments, a bench comprising justices G S Singhvi and A K Ganguly held that Swamy had the locus standi to seek sanction.
The apex court blamed the Prime Minister's Office (PMO) for sitting on the plea to Prime Minister Manmohan Singh for granting sanction to prosecute Raja.

It said that those who were "duty bound" to apprise the Prime Minister about the "seriousness" of the allegations to enable him to take appropriate decision in the matter "failed" to do so.

"Unfortunately, those who were expected to give proper advice to Prime Minister and place full facts and legal position before him failed to do so.

"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 matter to linger for a period of more than one year," the bench said.

The court said sanction should be granted within a time frame and the competent authority shall take action in accordance with the guidelines laid down by the apex court in the Vineet Narain case of 1998 (three months for grant of sanction and additional one month time may be allowed where consultation is required with the Attorney General).

Justice Ganguly, who wrote a separate judgement, agreed with Justice Singhvi and said sanction would be deemed to be granted if the competent authority fails to take a decision within a period of four months.

Further, he said since the Prevention of Corruption Act (PCA) does not provide for a time limit, Parliament may consider "introducing a time limit in section 19 of the Act for its working in a reasonable manner".

On the handling of the issue by the Prime Minister, who was the competent authority in this case, the bench said "By the very nature of the office held by him, Prime Minister is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers".

It said the officers in the PMO and the Ministry of Law and Justice, were "duty bound" to apprise about "seriousness" of allegations made by Swamy.
The bench also set aside the High Court order which had refused to direct the Prime Minister to take decision on granting sanction to prosecute Raja saying that it had passed the order on a wrong presumption that it was PM who had ordered CBI probe in the scam.
"The High Court had proceeded under a wholly erroneous assumption that PM had directed investigation by the CBI into the allegations of grave irregularities in the grant of licences," the bench said.

The apex court said the inquiry was done by the CVC which had forwarded its report to the CBI for making investigation to establish criminal conspiracy in the allocation of 2G spectrum.

"The material placed on record does not show that the CBI had registered a case or started investigation at the instance of PM," it said.

The bench also thrashed aside the governemnt stand that Swamy had no locus standi and the grant of sanction for prosecution of a public servent arises only at the stage of taking cognisance of the case by the court.

"The argument of the Attorney General that the question of granting sanction for prosecution of a public servant charged with an offence under the Prevention of Corruption Act, 1988 arises only at the stage of taking cognizance and not before that is neither supported by the plain language of the section nor the judicial precedents relied upon by him," the bench said.

"There is no provision either in the 1988 Act or the Code of Criminal Procedure, 1973 (CrPC) which bars a citizen from filing a complaint for prosecution of a public servant who is alleged to have committed an offence.

"Therefore, the argument of the Attorney General that the appellant cannot file a complaint for prosecuting Raja merits rejection," the bench said while holding that Swamy has right to file a complaint for prosecution of DMK leader under the Act.

While maintaining that the competent authority should follow the guidelines laid down by the apex court in the Vineet Narain judgement (1988), the bench said "the guidelines are in confirmity with the law".

The court said on the issue of considering grant or refusal of sanction "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."

"The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true," the bench said.
The court also observed that "grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter".

"What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant," the bench said.

Justice Ganguly elaborated that grant of sanction for prosecution must be within three months on receipt of the proposal by the competent authority and where consultation is required with the Attorney General or the Solicitor General or the Advocate General, an extension of one month may be allowed.

However, Justice Ganguly said the request for consultation has to be sent in writting within three months.

Justice Ganguly also said that the right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the Court in order to set the criminal law in motion against a corrupt public official.

"This right of access, a Constitutional right should not be burdened with unreasonable fetters. When a private citizen approaches a court of law against a corrupt public servant who is highly placed, what is at stake is not only a vindication of personal grievance of that citizen but also the question of bringing orderliness in society and maintaining equal balance in the rule of law," Justice Ganguly said.
The whole controversy on sanction arose after the Prime Minister had allegedly refused to take any decision on granting sanction for Raja's prosecution.

Swamy had written letters to the PM on May 30, October 23, October 31 in 2009 and on March 8, March 13 in 2010 requesting for grant of sanction to prosecute Raja but the PM dis not take any decision on it.

Aggrieved by delay in taking decision on part of the Prime Minister, Swamy approached the Delhi High Court which dismissed his plea.

"At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the chargesheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit.