Defying & Challenging the Supreme Court

The corruption scam in allocation of coal blocks to private entities by the ministry of Coal, Government of India, when the Prime Minister Man Mohan Singh held the charge of the coal ministry was first detected by the Comptroller & Auditor General of India more than a year ago. The loss to the exchequer estimated by the National Auditor under the Constitution of India, by dishonest allocations was placed at Indian Rupees 1,86,000 crores(1 crore=10 millions).This loss of revenue was greater than the earlier scams like the Commonwealth Games (76000 crores) or 2G spectrum allocation  (1,76,000 crores). A reputed and highest circulated English language daily newspaper put this loss even higher at 10,57,000 crores.  The scam has since acquired the nomenclature of “Coalgate Scam”. The government has been ridiculing the Comptroller & Auditor General in various ways ever since. Some politicians even violated the norms of decency, decorum and dignity in their attacks on the C&AG of India. They are the shouting brigades, trained to mount this Pindari attack on whosoever is perceived by them to be their adversary or made to charge at voices against such historic corruption. They can abuse, rough up, beat, thrash, injure, maim, disable or even kill their opponents. Such treatment is normal for political rivals, government officers, businessmen, media, lower judiciary or intellectuals. But it is rare towards the higher judiciary, excepting terming it as “judicial activism”.

The Government of the corrupt and the crooked has always found the higher judiciary standing in its way and had attempted to discipline it. The worst attempts were made during the black Emergency imposed on the country in June 1975. Such excesses of the Emergency cost the ruling establishment heavily and it has failed to win a clear majority after that, excepting once in the aftermath of the assassination of the incumbent Prime Minister in 1984 in a wave of sympathy. The assassination incited riots in Delhi and elsewhere against the Sikhs. The victims are still pursuing cases in the court against the perpetrators, the latest case was decided only on 30th April 2013 and the victims have decided to file an appeal against the exoneration of a political leader. Other cases are awaiting decisions. Such grave blunders of challenging the authority of law only ended up in further strengthening the judiciary, which is held in the highest esteem so far in India. So, when the coal block allocation case came to the Supreme Court of India, the people were keenly watching the progress. The Supreme Court had directed the CBI (Central Bureau of Investigation) to carry out a free and fair investigation in the case and file a status report in the court directly, without sharing it with the political Executive. The CBI did not obey the court. It defied the court. It challenges the court when its Director/Chief makes a public statement that he is a part of the government and cannot act independent and has not shared the report with anybody other than the government. The challenge lies in this statement. Where was the need for the CBI Director to make such a bold statement? His words, expressions, gestures, tone and tenor were different in the morning but suddenly took a turn by the afternoon. Why? Was he doing it on his own or acting under orders?

There is reason to believe that the CBI Director was acting under orders of the government, may be even the Prime Minister himself, as he is personally accountable in this scam which happened during his tenure as the coal minister. This government has been most abrasive in attacking the judiciary in the 2G spectrum allocation case. It made no bones about its displeasure against the Supreme Court for cancelling 122 licences for the 2G spectrum. Taking refuge behind the territorial jurisdiction of framing the “policy”, it was irked at the Supreme Court deciding whether the FCFS (First Come First Served) policy was right or wrong or merely a machination to rig the whole licensing process. Its ministers showed little respect for similar territorial jurisdiction of the Judiciary, which is “independent” of the government and can be controlled by the Parliament of India alone, through the well laid out procedure for impeachment of a judge of the Supreme Court. It has been flinging charges of “judicial activism” to tame the higher judiciary, which has refused to be intimidated so far. It is a different matter that the establishment has tried to influence the appointment of judges, but the collegium system has come in their way. They have been trying to set up a judicial commission too without any success so far. A government without a clear majority and thus, a clear mandate from the people to govern, ends up sewing up a most unethical and disparate coalition of sorts. That is what sums up the UPA-I & II governments headed by Man Mohan Singh. It is no quality of his Prime Ministership that he has survived for almost 9 years and is hopeful of another stint of 5 more years after the 2014 General Elections, which might take place earlier or even later as had happened during the black Emergency. If Emergency is imposed this time for any reason, it will be blacker than the earlier one, exactly like the scams of this government which prove blacker than the earlier ones every time they surface.

The government is entitled to place its point of view before the court. But this is not the way to do so. This is no way to defy and challenge the supreme court in the matter of jurisdiction. It is contemptuous of the CBI Director to make a public statement that he is a part of the government and thus entitled to refuse to obey the orders of the court not to share the status report with the political executive, because he has shared it with the law minister and others in the government only of which he is a part and nobody outside. Who knows he might still be indulging in being economical with truth, especially regarding sharing the status report with anybody “outside”. If the court finds it out that the CBI shared the report with someone “outside”, that is, someone who is not a member of the Union Council of Ministers, the Director may marshal any such defence by saying that it is as per the desire of the government. In this context, the existence of extra-constitutional centres of power in India raises doubts on the veracity of the statement of the CBI Director. The issue got suddenly charged when the assertion of the Additional Solicitor General of India before it in March 2013 that the CBI status report has not been shared with anybody as it was a confidential document meant only for the eyes of the court, sounded somewhat misleading. Not convinced, the court asked the CBI Director to file a sworn affidavit before the court that CBI status report was not shared with anybody. It was in this affidavit that the CBI Director admitted that the status report was indeed shared with the Law Minister and joint secretaries from the Prime Minister’s Office and the Coal Ministry. The court was irked !  The court was angry, reflecting only the horror of the aam aadmi about corruption under this dispensation and its brazen attempts to cover it up. It should have led to the collapse of this government, but it has dismissed it all as simply observations of the court and not the final judgement. The statement of the CBI Director is clearly to defy and challenge. The question is: who should a public servant obey- the court or the government? The government appoints the CBI Director, who is not independent of the government. Can the court make him independent selectively? Can he survive the onslaught of the political Executive thereafter? The government can be nasty anytime for the public servant. The government seems to be asking if it can similarly order any officer of the court to act independent of the Judiciary.  But there are better ways to decide these cases. Any ugly spat with the judiciary will only result in further erosion of the moral authority of the Executive.

The proceedings in the Supreme Court have already raised a political storm. It is for the first time in the history of India that the Additional Solicitor General of India asserted before the court that the contents of the status report were not shared with anybody. Later it came to light from his letter to the Attorney General of India that the report was not only shared but prepared under the supervision of the Law Minister and the Attorney General and the joint secretaries from the PMO and the coal ministry. On a specific query by the Supreme Court to the Attorney General if he had a copy of the status report, the A.G. denied it. As is clear from the letter of his 2 i/c, the AG had not only seen but approved of the final report. He tried to make a legal distinction between seeing (meaning reading) and having a copy of the report when he flatly denied it in the supreme court. But the letter of the Additional SG Harin Raval, revealed it all. The AG, however, did not resign, but the Addl. SG Raval did resign by the evening. How many more heads shall roll in this case will be known after the next hearing on 8 May, 2013. But the developments have a lesson for every public servant, especially after the most untenable statement of the CBI Director that he is a “part of the government” and acted lawful.

This is how the end comes to all those government functionaries, who compromise on integrity and tell lies to the nation, the aam aadmi and even the Supreme Court. This is the result of subversion of the constitution. Those who seduced the ASG have lost nothing but the ASG has lost his office, dignity and integrity. It is well known in government circles that every such decision is taken by the Extra-constitutional Authority. The ASG would do the nation a great service to reveal all the facts within his knowledge as to who decided the government response in all the scams from CWG onwards and whose interests were protected and by whom. The country is at a very very precarious turn and these scams have undermined the sovereignty and independence of the nation. He will be painted as the only villain (as Raja of 2G scam) by the Establishment of the congenitally corrupt unless Raval makes every effort to retrieve his own reputation by coming clean on every point.

Such situations arise only when the government ignores the parliament and the parliament fails to exercise legislative authority over the government. As in the status report before the SC, so in reply to parliament questions, call attention motions, half an hour discussions, cut motions and proceedings of the parliamentary committees, the government fiddles with truth and fudges facts. There is a doctrine of The Pleasure of the President, which means the activities of the government in the scam cases attract the severest “displeasure of the President”.i.e. the Parliament. This displeasure leads to resignation of the government. Unfortunately a corrupt regime slams the duty bound functionaries with severe displeasure and the consequences are public- Harin Raval has resigned. The choice is clear today: either join the corrupt or opt out. The Supreme Court observations are in the nature of severest displeasure and the aam aadmi & the civil society too conveys its severest displeasure at the government attempting to protect the corrupt. It is indeed a serious matter and cannot be simply pushed under the carpet.

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