By Shyam Khosla
In a tough no-nonsense judgment in 2G case, the Supreme Court of India comprehensibly indicts A Raja and jailed former Telecom Minister, for mala fide and unconstitutional actions. He is found guilty of conspiring to award licenses to cronies who had knowledge of his key decisions and were, in several cases, unqualified to receive them. The fact that several beneficiaries of Raja’s arbitrary decisions could produce bank drafts of over Rs 1,600 crore within hours after the DoT announced the revised rules shows there was indeed a conspiracy to loot public funds. The bench didn’t spare the corporate sector and punished them by cancelling 120 licenses awarded in 2008. The affected entities, however, are angry and unrepentant. The court came down heavily even on the Telecom Regulatory Authority (TRAI) for giving conflicting advice and questioned regulatory authority on several counts. However, the bench appears to have mellowed down while dealing with the Prime Minister. It is no one’s case that the Prime Minister was unaware of the wrong doings by Raja. Again, it is an undisputed fact that Dr Manmohan Singh advised the Minister concerned not to persist with his faulty policy and asked him to follow a rational and transparent policy. The Minister ignored the advice and went ahead with his mala fide actions and arbitrariness. The Prime Minister miserably failed to discharge his duties as head of the government. He could have taken appropriate action to stop Raja from acting against public interest. Yet, the Court didn’t consider indicting the Prime Minister for his act of omission.
Raja was a member of the UPA Cabinet and there is something called collective responsibility. Surprisingly, the bench chose not to invoke this cardinal principle of parliamentary system of government. No Prime Minister can legally argue that he is helpless because of coalition compulsions. Instead of learning lessons from gross failure of the Government that led to huge loss to public exchequer, the Congress party and the PMO claim that the verdict “completely vindicated” the Prime Minister. They have good reasons to welcome the verdict even though it virtually indicted the Government. If Dr Subramanian Swamy is to be believed, a majority of the dirty money made out of A Raja’s loot went to top Congress party leaders. The apex court may have let the Prime Minister off the hook, but its verdict has huge moral and political implications. A Prime Minister committed to ethics would have accepted his moral responsibility by putting in his papers.
In the first of the two orders, the Supreme Court accepts Dr Subramanian Swamy’s petition and prescribes a maximum limit of four months for the competent authority to decide either way requests for permission to prosecute public servants. Yet it didn’t indict the Prime Minister for sitting on the Swamy’s request for 14 months on the unconvincing ground that the PMO didn’t bring to the notice of the Prime Minister “full facts and legal position” about the case. Surprisingly, the court gave the PM what is famously described as an “astonishing character certificate”. What is more surprising is the bench’s presumptuous assertion that the Prime Minister would “surely” have taken appropriate action if the PMO had not failed to apprise him of the facts and their legal implications. Firstly, the PM and PMO are not separate identities. PMO is his own office. Second, what are the circumstances that persuaded the bench to strongly believe that Dr Singh would have taken appropriate action had he been advised properly? A person’s impeccable track record can be sometimes taken into account for reposing unflinching judicial faith in him.
Although Dr Singh may be perceived to be personally honest, his conduct as PM is not without blemish so far as political morality is concerned. A case in point is PM’s insistence on selecting P J Thomas, a tainted bureaucrat, for the sensitive office of CVC in the face of stiff opposition from Sushma Swaraj, who is a member of the Selection Committee by virtue of her holding the office of the leader of the Opposition in the Lok Sabha. As is well known, the matter went to the Supreme Court which quashed the appointment of Thomas. However, the court accepted the Government’s explanation that bureaucrats didn’t bring to the notice of the high powered committee that a criminal case was pending against the person concerned. Did the Government take any disciplinary action against the officials concerned for this monumental blunder that caused the Government acute embarrassment? No.
Incidentally, the Leader of the Opposition did inform other members of the Committee about the shady background of the candidate and wrote a note of dissent to dissociate her with the decision. If the Prime Minister were so committed to ethics, he could have at least accepted Swaraj’s reasonable proposal to postpone the decision or select anyone else from the panel short-listed by the Government. This infamous episode is a slur on the Prime Minister’s conduct. The decision to appoint Thomas was obviously taken by someone higher in the party’s hierarchy and the meeting of the high-powered committee was just a formality or worse (read farce). No one can enjoy unbridled authority without responsibility in a democratic set up.
The two orders of the bench suffer from a serious inconsistency. In the second 2G order, the Supreme Court indicts Raja and cancels licenses granted by him but doesn’t follow the implication of its argument in the first order. In this instance, the Prime Minister and Empowered Group of Ministers (EGOM) were in full knowledge that Raja was following a policy that was arbitrary and against public interest yet they didn’t take any action to stop the loot. The court didn’t take the view that it can’t pass judgment over policy making. It did go into the merits of the controversial policy and found it arbitrary and against public interest. Yet, it finds no fault with the PM for doing nothing to stop the Minister from running amuck. In the first order, the PM is exonerated on the premise that the PM didn’t know but would have surely acted if he knew. In the second, he knew but merely advised Raja not to follow the wrong policy. The logic appears to be something like this: Dr Manmohan Singh is not guilty of any wrong doing simply because of the high office he occupies.
In Congress scheme of things, Sonia Gandhi and her family, including her son-in-law, can do no wrong. They are the holy cows. It now appears that the PM appointed by Sonia Gandhi who, on his own admission, is in office at her and Rahul Gandhi’s pleasure, is also a holy cow.