Did the SC exercise ‘the right to sleep’ by ignoring the core of Swami’s petition?


From

http://www.kartikeyatanna.com/index.php/2012/08/swamy-vs-chidambaram-simplified/

Swamy vs Chidambaram simplified

By

Kartikeya Tanna

August 24, 2012

Posted in: LEGISPHERE

As we all know, Dr. Subramanian Swamy’s relentless fight against Chidambaram culminated into some sort of an anti-climax giving the rather arrogant UPA something to cheer about amid the muck it finds itself in. I will attempt to simplify what exactly is the content of today’s judgment by the Supreme Court and what could be the next steps.

Swamy’s appeal in SC

Swamy appealed the decision of Special CBI Judge OP Saini who rejected his plea to make Chidambaram a co-accused in Raja’s trial. Swamy could’ve appealed to the High Court first, but chose to go straight to Supreme Court. Though this isn’t that crucial, just FYI.

The Supreme Court clubbed Prashant Bhushan’s petition requesting CBI investigation against Chidambaram. In a way, this was a plea by this tag-team to the Supreme Court for alternative remedies: either make Chidambaram a co-accused in trial in OP Saini’s court or, as an alternative, order CBI inquiry. If either attempt succeeded, Chidambaram would’ve had to resign.

Legally, how can a court agree to make someone co-accused? By convincing itself of the existence of a prima facie case. What is a prima facie case? Essentially, the court must be convinced that there is some material on record which, if probed further through examination and cross-examination in trial, could reveal much more. [This is a simplified explanation]

Given Dr. Swamy’s instant reaction to the media, it doesn’t look like he is relenting anytime soon in this battle. Photo source: post.jagran.com

What grounds

Since SC clubbed both petitions, it is difficult to figure out from an initial read who argued what. Nonetheless, Supreme Court dealt with possible offences/grounds that could prima facie be made out against Chidambaram. These included the following:

1) criminal conspiracy (whether Chidambaram conspired with Raja) [Indian Penal Code]

2) obtaining benefit for himself or anyone else by corrupt or illegal means [13(1)(d)(i) of Prevention of Corruption Act]

3) deliberately allowed dilution of equity by Swan and Unitech [i.e. obtaining benefit for himself or anyone else by abusing his position as Finance Minister – 13(1)(d)(ii) of Prevention of Corruption Act]

Very importantly, the Supreme Court did not deal at all with these two grounds [which Swamy repeatedly kept mentioning on his Twitter account in the past 4-5 months]

1) whether, as Finance Minister, Chidambaram obtained benefit for anyone else without any public interest [This is 13(1)(d)(iii) which does not require proving either abuse of power, corrupt or illegal means or motive; all it requires is lack of public interest in the decision]

2) whether Chidambaram was guilty of breach of trust [an offence under the Indian Penal Code] by not disclosing that Etisalat and Telenor were black-listed by Home Ministry*

*Even Judge OP Saini did not deal with this second ground at all.

Why did SC not deal with these two grounds, specially 13(1)(d)(iii)?

After all, wasn’t that what we heard all this time from Dr. Swamy through his Twitter page? I, frankly, have no idea why the SC did not deal with this. Swamy has told the media that he was not allowed to present oral arguments on this point. I may have missed his tweets in the past, but I never knew this until today.

The SC has even mentioned that in the beginning that Dr. Swamy unsuccessfully tried arguing 13(1)(d)(iii) before Judge OP Saini. Yet, SC did not even touch the issue. It wasn’t even one of the questions in the issues that it shortlisted for consideration. Why? No idea.

As far as the national security ground is concerned, I, again, have no idea why neither OP Saini nor SC dealt with it. It is not a throwaway charge.

What next?

Dr. Swamy is disappointed with the SC’s refusal to deal with his main trump-card [13(1)(d)(iii) ground]. He has indicated that he will be filing a review petition. Readers should know that under Supreme Court Rules 1966, as far as practicable, a review petition is circulated to the same judges whose decision you’re seeking a review against.

I sincerely hope that, for the sake of judicial clarity, the two judges deal exhaustively with both grounds it hasn’t dealt with in yesterday’s judgment. Even if it wants to dismiss them, it must do so giving some rationale. At least, as students of law, we will know why these grounds don’t find favor with the SC.

Some clarifications

The SC is right in saying that just because a policy choice (first-come-first-served over auction, or setting prices at 2001 level) resulted in loss doesn’t automatically mean criminal culpability of each individuals associated with the choice. Criminal culpability, even at prima facie stage, requires a lot of ground to be traversed. Raja is facing trial because of a lot of other allegations against him [arbitrarily changing cut-off date, giving licenses to ineligible companies, deploying bouncers at Sanchar Bhavan etc.]

Therefore, while the PM and Chidambaram are collectively responsible for the 2G scam, their criminal culpability cannot be automatically deduced. The two are very distinct.

My view on the two grounds

I have said this earlier to a few friends and have also tweeted to Dr. Swamy in the past. I will reserve it for now and wait for what the SC has to say, if it does, in the review petition.

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