2G Judgment – So Do We Finally Have Due Process of Law? Yes, I Think We Do

First Published on 02.02.2012
I was waiting for this day. Article 14 of the Indian constitution has always enamored me. The equality, enshrined under article 14, can be ensured in two ways: first by challenging the law/policy/action of the state on the principle of intelligible differentia and rational nexus — but that’s not where lies the real fun — and secondly by invoking procedural fairness. After the Maneka Gandhi judgement (actually even before that), a new concept of procedural fairness was introduced through out the constitutional scheme of Part III of the constitution including article 14, 19 and 21, but it was limited only to arbitrary decisions of the executive not touching upon policy decisions and/or delegated legislation unless there is manifest arbitrariness. In other words, we have procedural fairness, but not the “due process of law”; and, thus, the law can’t be challenged under article 14 or 21 of the Indian Constitution for its mere arbitrariness. Now let us see what this 2G judgment has done.
The crux of this judgment lies in para 79 where the Hon’ble Supreme Court notes as under:

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.

Note: the judgment is available on the supreme court website at http://supremecourtofindia.nic.in/outtoday/39041.pdf 
P. S.
I am surprised that the English media is debating the collective responsibility of the government, the culpability of Chidambaram, etc, as consequences of the judgment. If the whole government has to be indicted for an alleged criminal act of a minister, no government can ever survive. Chidambaram’s culpability has to be decided in the trial court. Swamy has to satisfy the trial court that his allegation of conspiracy against Chidambaram is not absurd and/or vague and/or frivolous and/or false and/or motivated by ulterior motive and/or non-cognizable. If he can do that with the help of evidence he has got, well, he will get what he wants, i.e. the investigation of Chidambaram’s role; however, if not, luckily for him, the trial court doesn’t have the power to impose cost, but, if lacking good faith, he can be prosecuted for defamation — I think he has taken up an extremely risky adventure.
Comment dt. 04.02.2012
In my above article, I have made comments about the decision regarding culpability of Chidambaram, which, after reading the order of Judge Saini, I find, were completely out of context. In fact, the order of Judge Saini clearly states that Swamy never made any allegations against Chidambaram in his complaint but made allegations only in his application u/s 311 CrPC. So, in fact, Swamy had lost his cause day-before-yesterday itself when the Hon’ble Supreme Court declined his petition in another case — I am surprised how Swamy could keep a smiling face on media channels that day knowing well enough that he had lost already. I have not been able to get my hands on the SC judgment, but it doesn’t look like any directions were given to the Trial Court wrt further investigation by CBI into the role of Chidambaram. Even if we assume that Judge Saini could have gone beyond ordinary – which trial courts, esp criminal courts, never do – and considered the allegations made in s. 311 CrPC application  r/w s.319 CrPC application (if any) as an application u/s 173 (8) CrPC, it is clear from the order of Judge Saini that no further investigation could have been ordered because the bare perusal of the order shows that the allegations made on the facts stated by Swamy don’t make out any case for conspiracy, so the allegations of Swamy can even be termed frivolous and ex-facie absurd. None the less, I made the said comments thinking that an application for further investigation u/s 173 (8) CrPC was preferred by Swamy before the Trial Court. My mistake is that I believed the media, which was confusing between the facts of case in the Supreme Court and those in the Trial Court. The Indian media really needs to learn the reporting of facts.

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

About the Author

Ankur Mutreja
Ankur Mutreja is an advocate-cum-writer, and his blogs are amongst his modes of expression. He has also authored six books: "Kerala Hugged"; "Light: Philosophy"; "Flare: Opinions"; "Sparks: Satire and Reviews"; "Writings @ Ankur Mutreja"; and "Nine Poems"; which can be downloaded free from the links on the top menu.

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