By Amritananda Chakravorty
The Government of India, in a surprising development, appointed Tushar Mehta, Additional Solicitor General of India, as the Special Public Prosecutor (‘SPP’)conducting “prosecution, appeals/revisions or other proceedings” arising out of the cases relating to 2G spectrum investigated by the CBI before the Special 2G court and the appellate/revisional court, vide notification dated 08.02.2018. The notification is silent on Anand Grover’s position, who is the SPP appointed by the Supreme Court in September, 2014, on the recommendation of K.K. Venugopal, Senior Advocate, who is now the Attorney General for India.
Right from the beginning, in 2010, the Supreme Court was very clear about the need for a fair and independent prosecutionof the 2G Spectrum cases and passed a number of orders seeking to insulate the case from political interference. In its order dated April 11, 2011, the Supreme Court held
“In view of those peculiar facts of this case, and various orders passed by it from time to time, this Court is of the opinion that in the matter of appointment of the Special Public Prosecutor, utmost fairness and objectivity should be observed. It is beyond dispute that for a successful prosecution, the appointment of a very competent Special Public Prosecutor is of the essence.
This Court is aware of the fact that normally, in matter of appointment of a Special Public Prosecutor, the Central Government or State Government, as the case may be, make such appointments. Since the Court is monitoring the case and it is of the view that a competent prosecution is of utmost importance, having regard to the demands of public interest, this Court requested Mr. K.K. Venugopal, learned senior counsel for CBI and ED, to suggest certain names of learned advocates who can undertake the responsibility of conducting the prosecution as a Special Public Prosecutor in the case.”
Thereafter, the Court appointed U.U. Lalit as SPP in April, 2011, who prosecuted the case till August, 2014, when he was elevated to the Supreme Court as a judge.
On September 2, 2014, the Supreme Court appointed Anand Grover, Senior Advocate, as SPP, on the recommendation of Venugopal. Grover led the final arguments in the 2G Spectrum Case as well as the Loop case in 2015-2017.The judgment in the case was given on 21.12.2017, acquitting all accused in the 2G Spectrum cases. The judgment had made some disparaging remarks against the functioning of the CBI, as well as the prosecution.
The decision has led to a major controversy with the Centre for Public Interest Litigation (‘CPIL’) filing a contempt petition in the Supreme Court against the decision of the Central Government to appoint Tushar Mehta as SPP, as beingin direct contradiction with the orders of the Apex Court dated April 11, 2011 and September 2, 2014. CPIL argued that the Government wilfully disobeyed the orders of the Court by appointing Mr. Tushar Mehta, a serving law officer, which goes against the spirit of the Court’s orders that laid importance on free and fair prosecution, and not influenced by the vested interests.
It remains to be seen whether the Supreme Court acts on the contempt petition. It is also not clear what is the status of Anand Grover, though he is supposed to be finalising the CBI’s appeal against the acquittals in 2G Spectrum case. Most importantly, the propriety of a government law officer being given the responsibility to conduct the proceedings in one of the biggest corruption scandals of India is the heart of the issue.
Weekly Round-Up of Major Decisions of the Courts in India as also Legal Policy Developments
- Cauvery Water Dispute resolved – The Supreme Court pronounced its long awaited judgment in the Cauvery Water Dispute between Karnataka, Tamil Nadu and Kerala and Puducherry and partially allowed the appeal by the State of Karnataka filed in 2007 against the order of Cauvery Water Disputes Tribunal. The Court held that after 1947, the dpctrine of paramountcy has no application as the Government of India became the full sovereign authority. While holding that waters of an inter-State river passing through corridors of riparian States constitutes a national asset, and no single State can claim exclusive ownership of its water, the Court further held that drinking water requirement of the population has to be placed at a higher pedestal, as it is treated as a hirarchically fundamnetal principle of equitible distribution. In light of this, State of Karnataka was awarded 14.75 TMC of water and would have to release 177.25 TMC to Tamil Nadu. Puducherry has not been given any more water. [State of Karnataka v State of Tamil Nadu, Civil Appeal No. 2453 of 2007, date of judgment: 16.02.2018]
- Swaraj Abhiyan’s petition to investigate purchase of choppers by Chhattisgarh government dismissed – The Supreme Court has dismissed the petition filed by Swaraj Abhiyan seeking probe into the alleged anomalies in the purchase of Agusta Westland helicopter by the State of Chhattisgarh. The Court felt that there was no evidence to indicate any extraneous interference. It was the petitioners’ contention that the State of Chhattisgarh had entered into a sham agreement with Sharp Ocean Investments Limited to acquire the VVIP chopper without following due process of law, which caused financial loss to the exchequer.The Court stated that nothing on record indicated payment of extra money. Further the Court reminded the parties that a PIL under Article 32 should only be filed when there is a public interest to be served and not amidst political rivalry. [Swaraj Abhiyan v Union of India, Writ Petition (Civil) No. 720 of 2016, date of judgment: 13.02.2018]
- P&H High Court directed to decide OP Jindal University gang rape appeal in 5 months – The Supreme Court has directed the Punjab and Haryana High Court to decide the appeal filed by the accused in th OP Jindal University gang rape case within 5 months. It also directed that the two interim orders passed by the Court, i.e., staying the High Court’s suspension of sentence order, and protecting the main accused from arrest, would continue to remain in force. [ X v State of Haryana, Special Leave to Appeal (Criminal) No. 8695-8698/2017, date of order: 15.02.2018]
- Spouses and dependents of candidates should also reveal source of income while filing for nomination – In a landmark decision, the Supreme Court has directed several steps to prevent MPs and MLAs from amassing disproportionate assets and to make it mandatory for not only candidates but their spouses and dependents also to reveal their source of income. The Court directed that necessary amendments to Form 26 of Rule 4A of the Conduct of Elections Rules of 1961, should be made, so as to require candidates to declare on affidavit theirs as well as their associates’ sources of income, and not filing such information could render the candidate ineligible. It also ordered an investigation into the disproportionate increase in the assets of the MPs/MLAs mentioned in the petition. However, the court refused to order the State to amend the Representation of the People’s Act, 1951 to state that a candidate would be disqualified for furnishing incorrect information in the form. [Lok Prahari v Union of India, Writ Petition (Civil) No. 784 of 2015, date of judgment: 16.02.2018]
- SC asked CBI lawyer to take instructions in a case seeking SIT probe in Afrazul’s hate crime: The Supreme Court has asked the CBI lawyer to take instructions in a petition filed by the wife of Afrazul Khan seeking free and fair investigation into his horrific death by Shambhu Lal Raigar, which was shot on video. According to the Petitioner, the limited investigation being carried out by the police was hurting her right of a free and fair investigation. For the same, she also wished the investigation to be shifted to West Bengal. The petition also sought the removal of the videos of the crime being committed. [Gulbahar Bibi v Union of India, Writ Petition (Criminal) No. 30/2018, date of order: 16.02.2018]
- Mukul Rohatgi alleges ulterior motive behind petitions concerning Judge Loya’s death–Mukul Rohatgi, appearing for the State of Maharashtra, in a PIL seeking a probe into the death of Judge Loya, questioned the admissibility of the PIL. He mainly contended that the petitions had been filed solely on the basis of newspaper reports, without any concrete evidence indicating that the petitioners have done it with the sole motive of scandalising the court. He also highlighted that the State of Maharashtra had conducted its own inquiry and had found nothing amiss. [Tehseen Poonawala & Ors. vs. Union of India & Ors., Writ Petition (Civil) No. 19 of 2018, date of order: 12.02.2018]
- Media gag in Pachuari’s case refused – Patiala House Court, New Delhi,has refused to prohibit news networks from reporting the case of alleged sexual harassment filled against former TERI chief RK Pachauri. Pachuari had filed an injunction against various news houses claiming that they were subjecting him to media trial. After taking into account the fact that such an order would deeply harm the freedom of press and hurt the right of the public to stay updated, the Court refused to give the order. The Court though asked the media houses to expressly state the fact that the trial was going on. And before publishing any news, they would seek the opinion of Pachauri or any of his authorised representatives. If no comments would be forthcoming, at least, show that an attempt was made. [ Rajendra Kumar Pachauri v Bennet, Coleman and Company Ltd., Civil Suit No. 57510 of 2016, date of order:13.02.2018]
- Appeal against Daiichi award dismissed – The Supreme Court dismissed the appeal filed by Ranbaxy brothers against Delhi High Court’s order awarding ₹3500 cr to Daiichi against Ranbaxy for fraudulent misrepresentation in a Share Purchase Agreement. The Supreme Court held that it was not inclined to interfere with the High Court order. Daiichi had been awarded damages for fraudulent misrepresentation and active concealment by the Singh brothers of material facts and information relating to Ranbaxy Laboratories Limited in connection with the sale of control of Ranbaxy Laboratories Limited. The High Court had held that the award, though, would not be enforceable against the minor children of the brothers. [RHC Holding Private Limited v Daiichi Sankyo Company Limited, Special Leave to Appeal (Civil) No. 4276/2018, date of order 16.02.2018]
- CBI’s integrity with regards to the Sohrabuddin case questioned – The Bombay High Court has questioned the integrity of the Central Bureau of Investigation for not providing the assistance that it should have been providing in the Sohrabuddin fake encounter case. Out of 38 accused in the case, including BJP national President, Amit Shah, 15 have been discharged by the CBI court. The Court is currently hearing the challenge by CBI to the discharge of these 15 accused. It reminded CBI of their duty to protect its witnesses. Out of the 40 witnesses examined, 34 have turned hostile.
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