Supreme Court orders CBI Chief to keep off 2G cases

In an unprecedented order, the Supreme Court on Thursday ordered CBI director Ranjit Sinha to completely keep off the 2G case as it found prima facie “credible” the charges that he had attempted to help the accused in the spectrum scam, as well as delay prosecution in the Aircel-Maxis case which involves former telecom minister Dayanidhi Maran.

“We direct the CBI director not to interfere in the 2G-scam investigation or prosecution. He will recuse himself from the case. The investigation team constituted in the CBI to probe this case will take over the handling of the case in place of Ranjit Sinha,” the court said.

A bench of Chief Justice HL Dattu and justices Madan B Lokur and AK Sikri refrained from spelling out the reasons for its extraordinary decision which rendered Sinha’s tenure as head of the investigating agency ignominious.

“To protect the fair name of the CBI and to protect the reputation of the CBI director, we are not giving elaborate reasons. Suffice it for us to observe that information furnished by the applicant (CPIL) appears to be prima facie credible. So, it needs to be accepted. We reiterate that we are not giving elaborate reasons as the CBI has its own reputation and we don’t intend to tarnish it,” the bench said.

SC-appointed special public prosecutor Anand Grover, who on court orders examined the evidence on Sinha’s alleged misdeeds in the 2G-scam case, held that the evidence provided by the petitioner was credible. Grover slammed the CBI director’s conduct and, in fact, said he could even face criminal contempt for attempting to obstruct administration of justice in the 2G-scam case.

The bench emphatically rejected the defence of Sinha’s counsel Vikas Singh that the CBI chief had done no wrong. “He is the head of the CBI. He should have the independence to take administrative decisions. All decisions taken were within the four corners of law and CBI manual,” Singh said.

The order, just days before Sinha’s retirement, will ensure that he leaves on an embarrassing note, perhaps keeping with the trajectory of a tenure which saw the court coming down hard on him for getting the ‘Coalgate’ probe report vetted by the UPA government before submitting it to court. The episode saw the court likening the agency to a “caged parrot”.

No Government sanction required to probe public servants: SC

Shruti Sethi

The question whether Central Government’s prior sanction under section 6A of the Delhi Special Police Establishment Act was necessary before a public servant could be proceeded against on corruption charges came before the Apex Court on 17th December 2013. This question arose through an application filed in coal block allocation scam seeking it the direction of the Court to do away with the provisions of prior sanction of the Centre in cases monitored by court.

The government presented a view that such a provision was necessary to prevent frivolous and vexatious charges being made against honest bureaucrats, affecting the efficiency of administration.
The bench deciding the question comprised of Justice R.M. Lodha, Justice Kurian Joseph and Justice Madan B. Lokur. Justice R.M. Lodha and Justice Kurian Joseph on 17th December, 2013 by its majority verdict asserted in negative and said that no such government nod was necessary. In a concurring order but with different reasoning, Justice Madan B. Lokur too held that “Sanction is not necessary under section 6A of the Delhi Special Police Establishment (DSPE) Act when the case under the Prevention of Corruption Act is monitored by court.

The three-judge bench headed by Justice R M Lodha cleared the road block and allowed prosecution to go on without waiting for sanction under Section 6A of the Delhi Special Police Establishment Act, which created the nation’s prime investigating agency. The three judges gave two separate judgments which concurred on the interpretation of law.
Accepting the argument of the petitioner, Common Cause, the bench stated that the hurdle should be removed for speedier conclusion of the investigation and trial of those who hold the post of joint secretary and above. It was argued by the petitioner that when the court takes over the monitoring, the role of the government with regard to sanction came to an end.

Recently, the CBI has also turned around against the government stand on sanction for prosecution. In the Coalgate proceedings in the Supreme Court the investigating agency had come out openly and sided with the petitioner organization that CBI should not be burdened with the tedious procedure for sanction when the court itself is monitoring the case as in the Coalgate affair. Earlier, in the 2G scam, the court had dispensed with sanction, leading to arrest of top government functionaries.


Curative Petition by Swamy in 2G Case Dismissed

Shruti Sethi, Hidayatullah National Law University, Raipur

Dr. Subramanian Swamy is an Indian academician, politician, activist and economist.He was the President of the Janata Party which merged with BJP on 11 August 2013. He has previously served as member of the Planning Commission of India and Cabinet Minister of India and has also written extensively on foreign affairs of India dealing largely with China, Pakistan and Israel.

He had filed a petition in the 2G spectrum scam, which has been described as India’s biggest swindle so far against Mr. Chidambaram the then Finance Minister (in 2008) when the Telecom Minister A Raja allegedly broke the rules to help companies who were ineligible to land valuable mobile network licenses at throwaway prices. The CBI is probing the scam in which 14 people and several companies, including the promoters of some of India’s biggest telecom companies, have been accused of conspiring to rig the process of allocation of licenses. The high-profile case is also being investigated by a Joint Parliamentary Committee, which has 20 members from the Lok Sabha and 10 from the Rajya Sabha.

On August 24, 2012, the Bench, headed by Justice Singhvi rejected the petitions filed by Dr.  Subramanian Swamy and the Centre for Public Interest Litigation (CPIL) seeking a CBI probe into Mr. P. Chidambaram’s (Union Minister for Finance as of today) alleged role in the 2G spectrum allocation scam.’ It also dismissed Dr. Swamy’s appeal against a trial court order rejecting his plea to make Mr. Chidambaram co-accused along with Mr. Raja.

Then Dr. Swamy applied for a review petition which was rejected in December 2012 by a Bench of Justices Singhvi and Radhakrishnan saying the order “does not suffer from any error apparent” which might warrant reconsideration.

Dr. Swamy then took recourse to a “Curative Petition” which is a procedure evolved by Supreme Court through judicial pronouncement which provide that an aggrieved person, even after final verdict of Supreme Court and after dismissal of review petition may request the court to reconsider its judgment by showing gross miscarriage of justice. The concept of curative petition and the proper analysis of the judgment were pronounced in the case of Rupa Ashok Hurra v. Ashok Hurra ((AIR 2002 SC 1771)).

This was Mr. Swamy’s last legal option against Mr. Chidambaram in the high-profile case which has seen unprecedented acrimony between the BJP and the Congress. Dismissing the petition, the court said, “We have gone through the curative petition and the relevant documents. In our opinion, no case is made out within the parameters indicated.”

Further References:

Will the Government be a successful drafter this time?

By: Aastha Mehta, Student of Law, GNLU, Gandhinagar

India, is notoriously famous for its loopholes and poor application of mind when it comes to international arbitration disputes, a very few coming in favor of the Indian Government. But with arbitration notices from foreign investors like Axiata, Sistema, and other telecom companies after 2G verdict mounting the tables of officials, Indian Government has finally decided to pull up its socks and do something about how International Investment treaties are drafted.

The latest development in this direction is drafting a new draft model for MNCs, which will make sure that India does not come across the problems which it faced due to its loopholes in their previous treaties. The new draft may be a lawyer’s paradise, since many legal jargons have been incorporated into it, giving huge scope for interpretation. This draft provides that no unfavorable decision can be challenge by the investors under Indian courts. The government has felt the need to keep the “exhaustion of remedies” clause in the draft, maintain status –quo with regard to the proposition that the investor has to exhaust all local remedies first, before resorting to international arbitration under bilateral investment protection agreements (BIPA). This has been done with the hope that it will lessen the number of litigations filed against India in recent times. Also the new draft will work as base for future agreements, since presently functioning treaties do not address the issue of changes in regulatory framework of industries. This takes care of any conflict between two treaties; the newer draft (still proposed) will be helpful in guiding what will be the effect of any changes in future regulatory system.

The new draft also focuses on narrowing the scope of the definition of “investment” pursuant the latest White Industries case, where India lost against White Industries an Australian company, due to broad interpretation of “investment”. An ancillary progress has been made by the ministry of Finance to review all Free Trade Agreements (FTAs), being compelled to do so, by increasing pressure from public that such agreements have not reaped any return for Indian economy. It may seem that doing all the reviewing together will cause benefit while drafting the model text, so that grey areas of Bilateral Investment treaties (BIT) and FTAs are covered making the India system look complete.

Till the new draft is brought into effect and reviewed, all negotiations with other countries for investment treaties have been suspended, adversely affecting the weakening investment climate of India.  This has also created plethora of problems for foreign investors who are in fix, whether to invest or pull out of Indian market. It is hoped that the new treaty becomes the one-stop solution to all treaties entered into by India with foreign investors, for all grievances of both parties.

Further readings

Supreme Court Canceled 122 2G Spectrum Licences

Allowing writ petitions filed by the Centre for Public Interest Litigation and others and Janata Party president Subramanian Swamy seeking the cancellation of the licences, a Bench of Justices G.S. Singhvi and A.K. Ganguly said: “The licences granted to the private respondents — Etisalat DB Telecom (Swan Telecom); Unitech Wireless; Loop Telecom; Videocon Telecommunications; S-Tel Ltd; Allianz Infratech; Idea Cellular and Aditya Birla Telecom (Space Communications); Tata Teleservices; Sistema Shyam Tele Services (Shyam Telelink); Dishnet Wireless; [and] Vodafone Essar South — on or after January 10, 2008, pursuant to two press releases issued on January 10, 2008, and the subsequent allocation of spectrum to the licensees are declared illegal and are quashed.” Continue reading “Supreme Court Canceled 122 2G Spectrum Licences”