We are also conscious of the fact that the Court should not interfere with the fiscal policies of the State. However, when it is clearly demonstrated that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should not be exceeded beyond the recognised parameters.
The only constitutional principle in challenge in the case was that of the equality principle u/a 14 of the Indian Constitution. There was no challenge on the basis of intelligible differentia and rational nexus; the challenge was, in fact, to the TRAI’s policy recommendations indirectly, and to the manner of its implementation by the DOT directly. The Hon’ble Court in para 74 of the judgment has gone to the extent of recording a finding that the TRAI’s policy recommendations were flawed on the principles of equality, which is unprecedented. Finally, the Court has found that “the exercise undertaken by the officers of the DoT between September, 2007 and March 2008, under the leadership of the then Minister of C&IT was wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality”; though the de-jure result of the judgment is the quashing of licences issued pursuant to the press releases issued on 10.1.2008, but the de-facto result is the quashing of the policy recommendation of the TRAI. The above, in fact, means that a policy decision of the government can be challenged indirectly on the principle of “due process of law”, especially if it is against larger public interest. Applying the same logic, the law laid down by the parliament can be challenged if the parliamentarians fail to appropriately consider the arbitrary recommendations of the standing committee. Here “appropriately consider” would mean procedural regularity, i.e., if the parliament passes an arbitrary legislation recommended by the standing committee with in a few minutes by voice vote without enough deliberation, then, well, it can be challenged because the parliamentary privileges are not above constitutional rights; and when a conflict would arise between the two, i.e. the parliamentary privileges and the constitutional rights, it will have to be resolved by harmonious construction principle vide AIR 1965 SC 745; and harmony, in such circumstances, will always lie in favour of the larger public than a few parliamentarians. In a way, we have a kind of “due process of law” now.
Comment dt. 24.08.2012
Swamy, immediately after the pronouncement of the order today, made a claim that he has not been heard completely by the SC therefore he will file review. He said that u/s 13(1)(d)(iii) of the PCA Act, there is no need to prove criminal intent, and that there is a division bench judgment of the Delhi HC on this point. He further said that he was not given a chance to cite the judgment of the Delhi HC but was asked to file written arguments instead, which he did file. I have read the order passed by the SC; the argument raised by Swamy has been mentioned in para 6 of the SC order; various judgments referred by Swamy have also been cited, but there is no mention of the said Delhi HC judgment; this may be either because Swamy didn’t mention the Delhi HC judgment in his written arguments or, if he did mention, the judgment was ignored by the SC. In para 18 of the order, various issues have been raised for consideration. Para 18(5) mentions s. 13(1)(d)(i) to (ii) of the PC Act but doesn’t mention s. 13(1)(d)(iii); this could even be a typographical error. Para 53, which is the operative part of the order, mentions specifically that “no materials are also made available even for a prima facie conclusion that Shri P. Chidambaram had deliberately allowed dilution of equity of the two companies
, i.e. Swan and Unitech”. This should clearly satisfy the non-application of s. 13(1)(d)(iii) of the act. However, it is not known to me whether Swamy raised any further distinct allegation/s wrt s. 13(1)(d)(iii) of the act. If yes, then, obviously, there is no typographical error in para 18(5) of the order, and thus it would then be beyond my understanding why s.13(1)(d)(iii) was not raised as an issue in the “issues for consideration.” However, in any case, this is the end of the road for Mr. Swamy; he won’t be able to make out any case for review as his argument wrt s.13(1)(d)(iii) has been mentioned in para 6 of the order, which means he has been heard. Non-consideration of a specific citation per se or non-raising of an issue urged to be raised per se can’t be a ground for review. I think if Mr. Swamy really has some division bench judgment of the Delhi HC in his favour, it was core stupid to have approached the SC directly before approaching the Delhi HC first against the order of the sessions/trial judge.
Now it is clear. The only gain made by any person is that by dilution of equity by Swan and Unitech. The trial court had dismissed the allegation stating that there was no conspiracy between Raja and Chidambaram. Swamy argued before the SC that there is no need for existence of a conspiracy and the corresponding criminal intent for the application of s.13(1)(d)(iii). The SC has held that there is no prima facie material on record to conclude that Chidambaram had deliberately allowed dilution of equity of the two companies. Now I don’t know what the Delhi HC judgment says, and I will assume Swamy is stating it correctly in the media interviews. But, in the present case, it seems the SC has ignored the Delhi HC judgment (assuming it was mentioned in the written arguments filed by Swamy), which it can very well do being a superior court, and has independently held that there was no deliberate omission on part of Chidambaram. But Swamy is claiming that the deliberate omission is not required, and that the omission per se by a public servant is enough to attract s. 13(1)(d)(iii); or, in other words, a public servant has a strict liability to act in a manner which upholds the public interest but nothing else, i.e. he can’t even act negligently. This position certainly takes an extremely strict view of the responsibilities of a public servant, which may create paranoia amongst public servants, and they may not be able to work at all – I don’t think any court should take such a view, and, if Delhi HC has taken such a view, it is extremely unfortunate. The SC by ignoring the Delhi HC judgment and by using the word “deliberate” has certainly negatived any such strict view of the responsibilities of the public servants. Since the SLP of Swamy has not been admitted, the Delhi HC judgment might still be applicable in other cases. I think the SC should have put the matter to rest by first admitting Swamy’s SLP and then overtly overruling the alleged Delhi HC judgment on this point.
© 2012 Ankur Mutreja