Supreme justice

Indias very supreme court Some of the judicial pronouncements coming out this month have serious implications in the long run. There is no doubt, whatsoever, that the allocation of spectrum in 2008 by the government at 2001 prices was a fraud of the worst order committed on the nation and its exchequer. It is, therefore, fitting that the then Telecom Minister, A. Raja, the bureaucrats assisting him in the process and the top corporates who joined hands with the minister in defrauding the exchequer, have been arrested and are being made to answer for their alleged crimes through the due process of law. Any of them found guilty must be visited with severest punishments and as soon as possible, say, within a year at best. It must be the job of the Supreme Court of India, the highest judicial authority of the land, to ensure that the matter is brought to a close as soon as possible. While that matter is proceeding with due dispatch in the trial court, the Supreme Court this month came out with its judgments in two public interest litigations that were filed before it. In one of these, the petitioner, Dr. Subramanian Swamy, had alleged that the Prime Minister of India had erred in not deciding in time his application for permission to prosecute the then Telecom Minister, A. Raja. The Supreme Court has ruled that the Prime Minister had in fact dithered and that the government must ensure that such permissions are granted latest within four months and that if the matter is not settled within that period, the permission should be deemed to have been granted. Ironically, this judgment prescribing a four-month time-limit was itself delivered more than a year after the hearings were concluded. Against the background of the massive scams that have been coming to light in the last couple of years and the popular revulsion against any corruption, real or suspected, it is difficult to argue in favour of the persons charged with running the affairs of the republic, namely, the executive. But a beginning has to be made to restore some sanity into the public discourse over the issue of corruption and on ways of dealing with it. There is no doubt that corruption is a scourge which must be banished, any which way, from the way the governance is carried out in the country. But the way to deal with the issue is not really to swing from one extreme to the other - or to hang everyone with the same rope.

That would be counter-productive because every public functionary could then be driven to merely passing time and not taking any decisions which could even remotely be interpreted as being driven by corrupt motives. The provision for obtaining permission to prosecute a public functionary is there in the statute books for good and valid reasons. Almost every issue coming up for decision in the public space lends itself to being decided in more ways than one and any course of action adopted by the authorities could make them vulnerable to being prosecuted at the drop of a hat by the affected parties or by the hyper-active NGOs. Saying that such permissions must be granted within four months or be deemed to have been granted thereafter makes a mockery of the provision of the law itself. It would have been more in order if the Supreme Court had ordered the deletion of the provision itself in the Indian Penal Code and wherever else it exists. The second judgment on the same subject of spectrum allocation cancelled all the 122 licenses granted by the then Telecom Minister, A. Raja. These licenses were given in 2008 and most companies have made substantial investments in the businesses developed pursuant to these licenses. Canceling them at this stage, rendering them ab intio void, raises serious questions about the value of government of Indias executive orders. Of course, those of the licenses which are proved to have been obtained through fraud or collusion, have no sanctity and can be cancelled by the courts any time. But canceling all of them in one stroke because they were granted on first-cum-first-served basis instead of being auctioned to the highest bidders raises serious questions about the sanctity of Indias sovereign actions. Did the Supreme Court come to the conclusion that each of these 122 licenses was obtained through misrepresentation, fraud or collusion? It is doubtful if it is even open to the Supreme Court to exercise that kind of primary jurisdiction in matters like this. It is always best to leave such things to the courts below so that the aggrieved parties can approach the High Courts and the Supreme Court in appeal. With the Supreme Court itself having passed these orders, neither the government nor the licensees have any idea on whom to turn to. If the honest licensees, howsoever few they may be, were to claim compensation from the government of India whom would they turn to?