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SC proposal to fight graft gathers dust

Author: Rajesh Singh
Publication: The Pioneer
Date: May 8, 2012
URL: http://dailypioneer.com/columnists/item/51574-sc-proposal-to-fight-graft-gathers-dust.html
 
Rules yet to be framed to enable private citizens to secure time-bound sanction to prosecute public servants

Many politicians in the country are quick to complain about ‘judicial overreach’ every time the Supreme Court makes observations on the policy conduct of the Government or its various arms, or compels the Government to act in a particular manner. But there are also instances where the apex court has been less than intrusive, merely advising the Government to frame guidelines on matters that concern the well-being of the people. What has been the response of the Government in such cases where the court has played the role of a benign guide rather than that of a stern schoolmaster who is determined to humiliate his student in full public view? The Government has either dragged its foot on those recommendations or simply forgotten about them. And so, when the Government (and in many cases the entire political class) behaves in this fashion, does it not prepare the ground for a concerned citizen to knock the doors of the court and seek redressal?

Let’s take a recent instance to demonstrate how callously the Government deals with recommendations of the Supreme Court on a matter that has direct relevance to the empowerment of people in a thriving democracy such as ours. In a civil appeal of Subramanian Swamy versus Manmohan Singh and Another relating to sanction for the prosecution of Government officials under Section 19 of the Prevention of Corruption Act, 1988, the apex court had on January 31 ruled that any private citizen had the right to seek sanction of the authorities concerned for the prosecution of a Government servant under the Act. This has now become a binding verdict. But what the court said next was equally important. It asked — recommended, advised, suggested: Call it what you may — the executive to frame guidelines to ensure that the Government responds within three months (with a grace period of another month) to the request for sanction. The rules should also provide that, in the absence of a response in the stipulated period, sanction will be deemed to have been granted. In other words, the private citizen can initiate the proceedings to prosecute if he does not receive a response latest in four months from seeking such sanction.

The Supreme Court was thus careful in not stepping into the domain of the executive, leaving the Government to frame the relevant rules. Yet, even more than three months after the verdict, there has been no apparent movement to implement the recommendation. It is difficult to understand what the delay is all about. It may be that the UPA regime is caught in many more important issues such as the Budget Session of Parliament and the forthcoming presidential election. But the Government has so far not even shown any inclination to bring forth the amendments required to the anti-graft Act and secure the approval of Parliament, wherever needed, for those amendments. That the UPA is dragging its foot only demonstrates its reluctance to bring in greater accountability in fighting corruption.

Every time there is an inordinate delay in getting the sanction, two things generally happen: First, the accused gets away because evidence is washed off over a period of time and the case collapses. Second, the proceedings against the accused are quashed by the courts. Justice AK Ganguly, who was one of the two judges on the Supreme Court bench which gave the January 31 verdict, had pointed out to this travesty of justice. He said, “There are instances where, as a result of delayed grant of sanction, prosecution under the Act against a public servant has been quashed.” He illustrated his contention with the case of Mahendra Lal Das versus State of Bihar and Others, in 2002, where the apex court had quashed the prosecution as the sanctioning authority had granted sanction to prosecute after 13 years! He gave another example of the court quashing prosecution proceedings on a similar ground of delay in sanction in Santosh De versus Archna Guha and Others in 1994. Taking strong exception to such delays, Justice Ganguly observed, “The aforesaid instances show a blatant subversion of the rule of law. Thus, in many cases… public servants are being allowed to escape prosecution.”

He then added, “Parliament should consider the constitutional imperative of Article 14… where due ‘process of law’ has been read into by introducing a time limit in Section 19 of the Prevention of Corruption Act, 1988 for its working in a reasonable manner.”

But the UPA Government appears little concerned over the continuing subversion of the due process of law and seeking Parliament’s attention. What is worse is that the absence of a time-limit to grant approval for prosecution has given the sanctioning authority the leverage to manipulate issues. Justice Ganguly minced no words when he said, “This has virtually armed the sanctioning authority with unbridled power which has often resulted in protecting the guilty and perpetuating criminality and injustice in society.”

Justice GS Singhvi, the other judge on the bench, had in the same vein referred to the celebrated Vineet Narain versus Union of India case of 1998, where the court had mandated that the response to a request by Government agencies such as the Central Bureau of Investigation for sanction of prosecution must come within three months of seeking such sanction. Since that directive already stands, all that the Government has to do is to frame rules to ensure that the same time-limit is followed when a private citizen requests approval for sanction to prosecute a public servant.

The hesitancy of the Congress-led UPA to empower citizens to prosecute Government officials has largely to do with its own misery. It is neck deep in corruption charges ranging from the 2G Spectrum scam to the Commonwealth Games irregularities to the Adarsh Housing Society scandal. The last thing it would want now is an awakened citizenry armed with the powers to seek prosecution within a set time-frame. The disgraceful manner in which it had tried to block Mr Swamy’s claim as a private citizen to seek prosecution of a Government servant (in this case former Union Minister for Telecommunication A Raja) betrayed its determination to keep people away from questioning the Government’s dubious deals and seeking prosecution of the accused.

The Attorney General, appearing on behalf of the Government, had desperately tried to justify the failure of the Prime Minister to adequately respond to Mr Swamy’s request in 2008 for sanction to prosecute Raja, by stating that the question of granting sanction came only at the stage when ‘cognizance’ of the offence has been taken. Both the judges categorically dismissed this contention.

The court pointed to a 2009 three-judge bench ruling in a case where the bench had held that, without sanction the “very cognizance is barred.” In other words, it makes no sense to take ‘cognizance’ if it is not accompanied by sanction to prosecute. The Supreme Court had also trashed the Attorney General’s various other submissions on the ground that they were “contrary to the scheme of Section 19 of the Prevention of corruption Act, 1988.”

It is clear that the sole intention of the UPA through its submissions was to somehow block private citizens from being armed with the power to seek approval for the prosecution of corrupt Government servants. Now that the UPA has failed it its motive, it is delaying as much as it can the next enabling step: To frame rules to codify the time-frame for granting such approvals.
 
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