The “SPECIAL” Coal Case – Ministers and Scamsters!

The judgment rendered by the Special Court betrays complete ignorance of the constitutional fundamentals of a Parliamentary form of Government.

A minister is responsible to Parliament for whatever goes on in his department, whatever the extent of delegation and whether he is personally involved or not. It is this accountability, which provides legitimacy to governance and justifies retention of confidence of the Parliament and consequently consent of the governed. It is thus the minister alone who is the final decision making authority and remains liable to account to Parliament for all mishaps and operational failures of his ministry.

There cannot, therefore, be a presumption that a Minister does not know what is happening in his ministry. The presumption, in fact, is to the contrary because his office is predicated on the affirmation of the principle of accountability, which negates the supposition that he need not know the affairs of his ministry. And an emphatic reiteration of this principle arises where power is exercised by the minister personally as in that event there is no displacement of authority to take decisions and of the consequential liability for the same.

In the case where the Coal Secretary has been convicted, he merely recommended allocation of coal blocks but the eventual approval was granted by the Minister of Coal who also happened to be the Prime Minister.

Yet the Special Judge records in his order, “there was no reason in the facts and circumstances of the case for the Prime Minister as Minister of Coal to presume that the guidelines issued have not been complied with. It is not only apparent from the record but it is certainly permissible to draw a presumption in the overall facts and circumstances of the case that Prime Minister as Minister of Coal proceeded to consider the recommendation of the Screening Committee on the assumption that the applications must have been checked in MOC for their eligibility and completeness or that the guidelines must have bee duly followed even by the Screening Committee.”

Moreover he conflated the PM with the Government of India. He framed an issue thus: “Whether dishonest representation continued before the PM and thereby cheating Government of India.”

The PM is NOT the government of India and the comment betrays complete lack of understanding about what the government is.

Even where functions entrusted to a minister (or PM) are performed by an official there is in law no delegation because the official’s act is constitutionally that of the minister.

And should an official may act in a manner the minister disapproves, the minister has then to act to show his disapproval of the same and should he choose not to so act despite having the opportunity, the reason and ability his omission becomes part of the blameworthy act itself. In the instant case the minister did not so act. If the civil servant is culpable so will the minister.

Thus not the secretary alone but he along with the Prime Minister can be liable to the Government of India.

In fact in the instant case the responsibility was more onerous on the PM for the Special Judge himself records that “the fact that the then Prime Minister of the country Dr. Manmohan Singh thought it appropriate to retain the charge of Ministry of Coal with himself only, clearly shows as to how important the work of said Ministry was.” If it was admittedly very important for him how can it be presumed in his favour that he left it to the discretion of the Screening Committee to make recommendations and then blindly follow them? The presumption would be that he was alert and was fully informed!

The wrong becomes more significant still as the concerned minister was also the Prime Minister. Mr Parakh, however, has written that “on the 20th August 2004, the Prime Minister approved allocation through open bidding. He wanted a cabinet note on this. After the Prime Minister’s approval, we received a note from the Prime Minister’s Office (PMO), enumerating the possible problems in moving to open bidding. It is understood that this note from the PMO was based on an unsigned note given by the MoS to the PMO.” Instances such as these are cited to prove The PM’s innocence – the fact that he was helpless. This reputation enabled him to a get relief from the Supreme Court too. However no matter how good a person one is, if the act (or omission) is criminal goodness of disposition provides no amnesty from prosecution. The fact remains that the PM did not remove the minister, who he was entitled to do, and altered the decision to align with that of the minister! Apart from the fact that omission to act, being intentional, had a behavioral dimension, which took away from it the badge inactivity and firmly attached it to the unfolding criminality of conduct, the issue transcended from one of individual ministerial responsibility to one collective responsibility of the council of ministers for which, again, the PM is ultimately responsible.

If the secretary, as the head of the permanent civil service can be prosecuted, the PM who heads the political executive cannot be immune. In matters of policy the responsibility is always of the political executive. And where the political executive allows faulty implementation of policy, the wilful failure to act will make its liability joint with the civil servant. Let there be nothing arbitrary in drawing the bounds of criminality and never play favorites with the accused. Law after all is not to be like “a spider-web through which big flies pass while the little ones get caught.” Once the political executive is reigned in the permanent civil service can never go astray. If however law provides possibility of wagering a chance to defeat the system immunizing some and randomly targeting others it will remain a failure both instrumentally and normatively and the systemic rot will remain endemic.

(THIS HAS BEEN PUBLISHED AS AN OPINION IN BLOOMBERGQUINT   ON 28TH OF MAY, 2017)

Supreme Court & Justice Karnan – Judging the Judges!

A bench of five or more judges is constituted, under Article 145 of the Constitution of India, for the purpose of deciding a case involving substantial question of law as to the interpretation of the Constitution. In Justice Karnan’s case it is digressing into areas it need not move to.

It is indeed odd that seven judges should, sitting as such a bench, be ordering medical examination of the person being proceeded against. This is more so because his behavior is not in any manner different from what was known when proceedings against him commenced. Notwithstanding the self-evident deviance and aberrancy he was yet considered, by the very bench, as possessed of sufficient understanding and competence to be served with summons of the case, be heard in his defense and be further directed to file a reply – himself and not through a person taking responsibility for him – to the charges levied against him. If a person can be trusted with the ability to understand the nature of the proceedings and give rational testimony the basic test of his competence is satisfied as not to warrant his medical examination.

Medical tests have been ordered to resolve a lis a court is seized of to ensure, as was felicitously put, that “justice is not compromised to notions of delicacy”. The application of this principle to the case at hand can be the subject matter of serious dispute and in the circumstances of this case Justice Karnan has the right to refuse the taking of the test. More significantly the ordering of such a test suggests that the bench is having second-thoughts of the very propriety of proceedings initiated suo-moto by it. In any event “proved incapacity” – provided it is established in the manner prescribed under Article 124 – is a ground for impeachment not contempt and will, in fact, negate the charge of contempt. Proceedings will have to be kept in abeyance pending resolution of doubts about mental capacity. Inexplicably, however, the Supreme Court not only reiterates that Justice Karnan, the very person whose competence and capacity it doubts, should file a response but further records that should he “not choose” to file “it shall be presumed he has nothing to say.” How can freedom of choice be conceded to one who cannot be trusted with that responsibility and how can his failure to exercise that choice be deemed an intelligent exercise of discretion when an apprehended defective intellect is the reason for constituting the Medical Board?

The Supreme Court has, under the constitutional scheme, a special role in the administration of justice and is obligated to take steps to ensure free and fair administration of justice throughout the country. This explains the unusual step of constituting a bench of seven judges proceeding with suo moto contempt proceedings against Justice Karnan. Curiously the notice issued had not set out the charge against Justice Karnan and the contempt itself is described as “civil” though the reason for the proceedings is not violation of any order the court may have passed but letters addressed to the Supreme Court (which fact is not mentioned in the order issuing notice.)  This discrepancy, however, does not affect the proceedings in any substantial manner as Justice Karnan, on appearance, appeared aware of the reason behind the proceedings and the right to proceed in contempt inhering in a Court of Record, the Supreme Court was exercising power under Article 129 and not under the Contempt of Courts Act, 1971. It would however have been appropriate if the not made itself vulnerable to any criticism about the manner in which it was proceeding more so because the jurisdiction it was exercising was of contempt and that too suo moto.

Ideally Justice Karnan should have contested the proceedings and presented whatever objections he had in law to the process – which would also served as a precedent checking any future misuse of such a power. His willful refusal to participate should, nevertheless, not have deflected the court from the purpose behind the institution of proceedings to make forays into areas irrelevant to the controversy. The bench would have been better advised to immediately proceed to decide the issue whether in exercise of its powers under Article 129 notwithstanding the bar against “removal” from office except in the manner prescribed by Article 124 (4) of the Constitution the Court could yet order that Justice Karnan “refrain from all handling judicial or administrative work” that is remove his adjudicative capacity which alone could make him act as a judge. Related issue would be whether judges of courts of record could be proceeded against under contempt if they interfered with the legal process (an issue which proceeded sub-silentio in Ramaswami’s case) or exercised power illegally (which distinguished Justice Karnan’s case from Prakash Chand’s case) and the limits of public interest restriction against initiation of proceedings against a Judge of a Court of Record – an issue which will always remain key in every contempt proceedings instituted against any superior court judge. However more than two months have elapsed and Justice Karnan will retire in a few weeks from now!

Even otherwise the question would yet remain how any order passed would be executed. While a method to take action against judges, apart from the process of impeachment, an oppressively cumbersome process made worse by the intrigue and artifice of the political process would be a welcome, making the method work would be the real problem. We will eventually return to the very point from where we started – ordering the withdrawal of judicial work – and the judge remaining defiant – apart from any other punishment devised to suit the contempt – the carrying into effect of which would be fraught with rather dangerous consequences as the judiciary would be bound to take the help of the executive to make any order effective which is bound to compromise its independence.

A public spat between judges with each side ordering medical examination of the other and issuing warrants demeans the judiciary as an institution. The fact remains Justice Karnan is responsible for this situation and by choosing not to appear and contest the notice has shown he is not serious about the allegations made by him being subject to rigorous scrutiny as to show they are not fanciful and frivolous. He is, in the circumstances, clearly liable to punishment but the fact is he is about to retire and more than two months have been spent by the Supreme Court without making any substantial progress only generating adverse publicity ridiculing the judiciary. Moreover we need to proceed with caution thinking out the consequences of any action lest this case becomes a precedent that returns to haunt the judiciary later.

Justice Karnan already stands discredited. Mr K.K. Venugopal’s suggestion of letting him fade into retirement ought to be seriously considered by the Supreme Court. The existence of the power in the Supreme Court has been demonstrated. It may not be worthwhile to exercise it in the instant case.