Dr Abhishek Manu Singhvi As a Lawyer, Abhishek Singhvi

“Politicising Supreme Court Judgements”

( Dr) Abhishek Singhvi

The apex court judgement on grant/ denial of sanction is a purely legal exercise. That should hardly need emphasis because courts are supposed to and invariably do eschew political comments. But for those, like the BJP, which see politics lurking in every bush, who want to sensationalize and try and make political capital out of every event, this judgement has provided another opportunity to tilt at windmills. First the legal aspects. The judgement has brought about much needed certainty and clarity, but mainly by reiterating older principles of law already enunciated in earlier leading apex court judgements. It starts by reminding us of the established principle that sanction is not required once the public servant concerned has ceased to be employed in the post in which the alleged delinquency occurred. Several judgements 30 to 40 years old are cited in support.

Secondly, the apex court relies on the venerable old judgement of Antulay ( in the original round of which I had occasion to appear as a young lawyer), to state the twin principles that locus standi is a concept foreign to criminal law and that any one has the right to set the criminal justice system in motion by ﬁling a complaint before the appropriate magistrate.

Thirdly, it rejects the government’s contention to the effect that the issue of grant of sanction does not arise at the stage of ﬁling a complaint but only at the stage of cognizance of the complaint. Again, several older apex court judgements are cited to make the point that the magistrate cannot even entertain the complaint and cannot deal with it without sanction and that sanction should ideally be ﬁled with the complaint.

Fourthly, it reiterates the well established principle that action on a complaint can be taken even without a police report and that the latter is not a sine qua non for action.

Fifthly, it rejects the contention that investigation must compulsorily precede the taking of cognizance.

Sixthly, it reiterates the principle that grant of sanction is not a quasi judicial process, that it is administrative in nature and that it does not require any hearing to be given to the accused. In adumbrating each of these salutary principles, Justice Abhishek manu Singhvi quotes copiously from older apex court judgements. In agreeing with him, Justice Ganguly does the same, though quoting fewer judgements.

Seventhly, in deprecating the delay in deciding pending applications for sanction, the court again reiterates no more than the 15 year old principle of Vineet Narain’s case that sanctions should receive urgent attention and repeats the latter judgement’s time limit of 4 months.

In all this, the apex court has tread cautiously and surely, basing itself on established and venerable earlier apex court precedent.

Turning now to the political aspects, it is clear that for the past over 18 months, the opposition has tried to drag the Prime Minister ( as also the present Home Minister) repeatedly into the issue and has also tried to elicit some comment or the other, howsoever innocuous, from the apex court so as to embarrass the head of government. Dr Swamy’s links to the BJP and RSS are well known and he has publicly declared that he is on the threshold of joining the BJP. Clearly, his attempt to implicate the PM has boomeranged, since the judgement categorically gives the Prime Minister a clean chit and copiously discusses the issue in several paragraphs. In particular, Justice Ganguly notes that no mala ﬁdes were even alleged by Dr Swamy and both judges note that the delay in grant of sanction was, at best, on account of wrong advice with no personal involvement of the Prime Minister. I wonder if the BJP will emphasize this part of the judgement in any print or visual media.

Secondly, the same applies to the Home Minister to the extent that while he has not been given a clean chit, not a single comment attaching culpability to him has been elicited by Dr Swamy from the apex court, despite assiduous and strenuous efforts. As far as the Home Minister is concerned, the scene shifts to the magistrate.

Thirdly, and signiﬁcantly, the very raison d’ être of sanction has been questioned by the apex court. Its existence and use over the last several decades, at least according to Justice Ganguly, raises the issue of unfair discrimination in favour of public servants and against the common man by providing an additional protective arc to the former. The Parliamentary Committee on Lokpal, which I had the privelege to chair, had, for the ﬁrst time in 60 years, strongly and with several reasons, recommended the abolition of all external administrative sanctions, including those under section 19 POCA, section 197 CrPC and the infamous single directive in section 6 A of the CBI Act for lokpal covered offences. Our recommendations were accepted and the Bill with these three deletions was passed in the Lok Sabha, despite vociferous BJP opposition. In the Upper House, the initiative failed, due to lack of numbers. Those who want to politicize and sensationalize must explain to the nation why they prevented the abolition of sanction.

Fourthly, the reiteration of the 4 month Vineet Narain time limit for sanctions and its application even to Ministers is welcome since it brings clarity and stability. The reality is that sanctions have been languishing because of bureaucratic indifference in all governments, irrespective of political color, for well beyond 4 months.

Lastly, one area where larger discussion by the apex court would have been welcome but is lacking is the area of logistical management of this issue. Theoretically, in this country of over one billion, complaints by anyone against any public servant, on the basis of newspaper reports, with no locus limitations, can arise. Sanctioning authorities may well be ﬂooded with such requests at all administrative levels. They will have to create special and highly focused and efﬁcient departments to deal with the ﬂood of requests likely to arise as an unintended fallout of this judgement. government. Dr Swamy‘s links to the BJP and RSS are well known and he has publicly declared that he is on the threshold of joining the BJP. Clearly, his attempt to implicate the PM has boomeranged, since the judgement categorically gives the Prime Minister a clean chit and copiously discusses the issue in several paragraphs. In particular, Justice Ganguly notes that no mala fides were even alleged by Dr Swamy and both judges note that the delay in grant of sanction was, at best, on account of wrong advice with no personal involvement of the Prime Minister. I wonder if the BJP will emphasize this part of the judgement in any print or visual media.

Thirdly, and significantly, the very raison d‘ étre of sanction has been questioned by the apex court. Its existence and use over the last several decades, at least according to Justice Ganguly, raises the issue of unfair discrimination in favour of public servants and against the common man by providing an additional protective arc to the former. The Parliamentary Committee on Lokpal, which I had the privelege to

chair, had, for the first time in 60 years, strongly and with several reasons, recommended the abolition of all external administrative sanctions, including those under section 19 POCA, section 197 CrPC and the infamous single directive in section 6 A of the CBI Act for lokpal covered offences. Our recommendations were accepted and the Bill with these three deletions was passed in the Lok Sabha, despite vociferous BJP opposition. In the Upper House, the initiative failed, due to lack of numbers. Those who want to politicize and sensationalize must explain to the nation why they prevented the abolition of sanction.

In conclusion, to describe this judgement as a ” slap in the government’s face” or as” an indictment” or as a ” severe embarrassment” is not only to ignore logic and twist facts but also to distort the English language!