Case BriefsSupreme Court

“Introduction of NOTA will be an anathema to the fundamental criterion of democracy.”

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, while deciding a petition challenging the availability of the option “None of the Above” (NOTA), stated that “it would not only undermine the purity of democracy but also serve the Satan of defection and corruption. ”

The facts of the case pertain to availability of the option of NOTA in the elections held for Rajya Sabha. The petitioner challenged a circular issued in relation to the conduct of elections for the Council of States (Rajya Sabha). He asserted that Election Commission of India had issued directions stating that the option of NOTA could be applicable to elections for the Rajya Sabha, which the petitioner contended to be contrary to Article 80(4) of the Constitution of India and the decision pronounced by the Supreme Court in PUCL v. Union of India, (2013) 10 SCC 1.

On the other hand, contentions, as placed by the respondents, were that the EC had issued a letter which was further reiterated on 12-11-2015 that the option of NOTA would be applicable to elections for Rajya Sabha and as the elections were already conducted, no justification stood for challenging the said direction at such a belated stage.

The Supreme Court, while concluding its decision, emphasized that “In a democracy, the purity of election is categorically imperative”. It opined that on exercising the choice of NOTA in the voting process of the Rajya Sabha, such choice would have a negative impact. Further, it was observed by the Court that provisions for introduction of NOTA as conceived by the Election Commission, on the basis of the judgment mentioned hereinabove, were absolutely erroneous and the introduction of NOTA would certainly lead to the aspect of defection that would indirectly usher in with immense vigour. Holding thus, the Court allowed the petition and quashed the said introduction. [Shailesh Manubhai Parmar v. Election Commission of India,2018 SCC OnLine SC 1041, decided on 21-08-2018]

OP. ED.

Introduction

Corruption and maladministration in public life is fatal to economic growth. Corruption also erodes the authority of the State, promotes crime and violence, and undermines the rule of law and the very foundations of a democratic polity. The issue of corruption in India merits consideration as a national issue at least at par with secularism, stability, reservation in services, political empowerment of women and like subjects. Though at different times different persons raised their voice against corruption, but the real fight against corruption as a national and priority issue was championed by late Jayaprakash Narayan. After his movement, the fight against corruption continued by several other leaders, however, sometimes wrong priorities focusing on non-issues and divisive factors by some leaders on the national agenda lead to negative consequences. The concept of establishing an independent body to look into the citizens grievances in India dates back to the year 1952, when for the first time it was discussed in Parliament during a discussion on the Prevention of Corruption Bill. Seven years later the need for Ombudsman type of institution in India was effectively articulated by the then Chairman of the University Grants Commission and former Minister of Finance, Shri C.D. Deshmukh. Shri Deshmukh observed that “an uneasy public hears of nepotism, high-handedness, gerrymandering, feathering of nests through progeny, and a dozen other sins of omission and commission, and yet is helpless for lack of precise data, facts and figures, evidence and proof”[1]. He even came forward to make a beginning by lodging half a dozen complaints if a high level, impartial standing judicial Tribunal to investigate and report on complaints or lying of information was set up.

Genesis of the Ombudsman concept in India

Regarding the need of an independent agency to look into the grievances of citizens was highlighted by Mr M.C. Setalvad, the then Attorney General of India in the Third All India Law Conference held on 12-8-1962 to 14-8-1962. It was in fact the relentless effort of the great Parliamentarian Dr L.M. Singhvi who fought rigorously for setting up of an Ombudsman type of institution in India. Dr Singhvi said that “the institution of Ombudsman would enable the citizens to effectively ventilate their grievances which could not be substituted by the question hour in Parliament or through writing letters to the Ministers concerned and the available judicial remedy is also not adequate as the courts are prejudiced by limitations of procedures and technicalities.”[2] Dr Singhvi made several efforts to make the Government convinced for establishing the Ombudsman, but failed. During that period Prime Minister Jawaharlal Nehru in his address to the All India Congress Committee at Jaipur (3-11-1963) observed that “while the system of Ombudsman fascinated him, since the office would have overall authority to deal with charges even against the Prime Minister and would command respect and confidence of all, he, nevertheless, felt that its introduction was beset with difficulties in a big country like India”[3].

Subsequently, Shri P.B. Gajendragadkar, the then Chief Justice of India, raised the issue of Ombudsman and he commended for careful examination of the idea of an independent authority for the redress of public grievances.[4] The Provincial Bar Association of Madras supported the creation of the institution of Ombudsman in their meeting held in October 1963. A number of other Committees also like the Committee on Prevention of Corruption (1962), Administrative Reforms Commission of Rajasthan, Special Consultative Group of Ministers of Parliament (1965), Administrative Reforms Commission (ARC) (1966 and 2007), the National Commission to Review the Working of the Constitution (2002), all have recommended the setting up of the institution of Ombudsman or Lokpal.

The Administrative Reforms Commission (ARC) set up in 1966 under the chairmanship of late Shri Morarji Desai have recommended the idea of setting up two types of Ombudsman institutions, namely, (1) the Lokpal (protector of people); and (2) the Lokayukta (Commissioner of the People). As per the recommendation of the ARC, the Lokpal was expected to deal with the complaints against the Ministers and the Secretaries of Government posted at the Centre and in the States, whereas the Lokayukta in each State and one for the centre to look into the complaints against public officials other than Ministers and Secretaries to the Government.

In the year 2002, another Commission was set up under the chairmanship of former Chief Justice of India, Shri M.N. Venkatachaliah in the name of “The National Commission to Review the Working of the Constitution.” The Commission recommended the establishment of the institution of the Lokpal as a constitutional authority so that a cleaner Government could be achieved. More specifically, the Commission recommended two things—(1) The Constitution should provide for the appointment of the Lokpal and make it obligatory for States to establish the institution of Lokayukta; and (2) the office of the Prime Minister should be kept out of the purview of the Lokpal.

Again in 2007, the Second Administrative Reforms Commission under the chairmanship of Dr Veerappa Moily was set up, which also recommended to amend the Constitution so as to provide for a national Ombudsman called the Rashtriya Lokayukta. The Commission further recommended that the role and jurisdiction of the Rashtriya Lokayukta should be defined in the Constitution, but the composition, mode of appointment and other details can be decided by Parliament through legislation. All Ministers, Chief Ministers and Members of Parliament, except the Prime Minister, should come within the purview of the Rashtriya Lokayukta. Regarding the composition and appointment of the Rashtriya Lokayukta, the Commission suggested that it should consist of a serving or retired Judge of the Supreme Court as the Chairperson, an eminent jurist as Member and the Central Vigilance Commissioner as the ex-officio Member. The Chairperson and Members should be selected by a Committee consisting of the Vice-President, the Prime Minister, the Leader of the Opposition, the Speaker of the Lok Sabha and the Chief Justice of India. The Commission has said that the Chairperson and Member should be appointed for only one term of three years and they should not hold any public office later, except the office of Chief Justice of India, if they are eligible.

Need for establishment of the Lokpal

When the question of governance comes, the possibilities of misgovernance by the rulers become more visible. The need for the establishment of any institute always depends upon a specific and pertinent cause. Likewise, the need for establishment of the institute of Lokpal is the outcome of the issue of rampant growth of corruption in almost every sphere. It is not that the evil of corruption is of recent origin; rather it was as old as governance.

Kautilya in his Arthashastra rightly observes that for those who guard the treasury the temptation to be dishonest is almost a natural instinct. He says:

“Just as it is impossible not to taste the honey or the poison that finds itself at the tip of the tongue, so it is impossible for a government servant not to eat up at least a bit of the king’s revenue. Just as fish moving under water cannot possibly be found out either as drinking or not drinking water, so government servants employed in the government work cannot be found out while taking money for themselves.”

Corruption in India has been a problem ever since the country had been having a multilayered administration by Ministers, Administrative Chiefs and Officers. The problem of corruption in ancient India, coupled with bribery, kept infesting the society more and more in an increasing rate. This is quite clear from the way the contemporary writers like Kshemendra and Kalhana, who lived in 990-1065 BC, have condemned the government officials, as well as other employees of different levels, in their celebrated works.[5] Kshemendra has advised the king to remove all the ministers, generals, officials and priests from office with immediate effect, who were either taking bribes themselves or have been indulging in corruption in some other way. Yet another work by Kshemendra, called Narmamala, depicts corruption bribery spreading fast like rampant maladies. He also found an answer to the much discussed question how to stop corruption in India of his time; he has explicitly addressed the contemporary intelligentsia to step forward and shoulder the responsibility of purging their folks.

Anti-Corruption laws in India

Public servants in India can be penalised for corruption under the Penal Code, 1860 and the Prevention of Corruption Act, 1988. The Benami Transactions (Prohibition) Act, 1988 prohibits benami transactions. The Prevention of Money-Laundering Act, 2002 penalises public servants for the offence of moneylaundering. India is also a signatory to the UN Convention against Corruption since 2005. The Convention covers a wide range of acts of corruption and also proposes certain preventive policies.

Key features of the Acts related to corruption

Penal Code, 1860

(i) The Penal Code, 1860 defines “public servant” as a government employee, officers in the military, navy or air force, police, Judges, officers of court of justice, and any local authority established by a Central or State Act.

(ii) Section 169 pertains to a public servant unlawfully buying or bidding for property. The public servant shall be punished with imprisonment of up to two years or with fine or both. If the property is purchased, it shall be confiscated.

(iii) Section 409 pertains to criminal breach of trust by a public servant. The public servant shall be punished with life imprisonment or with imprisonment of up to 10 years and a fine.

The Prevention of Corruption Act, 1988

(i) In addition to the categories included in the IPC, the definition of “public servant” includes office-bearers of cooperative societies receiving financial aid from the Government, employees of universities, Public Service Commission and banks. The words as per Section 2(c) of the Act mean that a person who is in service at the time when the court is called upon to take cognizance of the offence[6].

(ii) If a public servant takes gratification other than his legal remuneration in respect of an official act or to influence public servants is liable to minimum punishment of six months and maximum punishment of five years and fine. The Act also penalises a public servant for taking gratification to influence the public by illegal means and for exercising his personal influence with a public servant. However, nexus should be established between performance of the official duty and acceptance of gratification.[7]

(iii) If a public servant accepts a valuable thing without paying for it or paying inadequately from a person with whom he is involved in a business transaction in his official capacity, he shall be penalised with minimum punishment of six months and maximum punishment of five years and fine. Under Section 4 of this Act presumption will be drawn against the accused the moment the prosecution proves that the accused accepted or agreed to accept or obtained or attempted to obtain any gratification or valuable thing.[8]

(iv) It is necessary to obtain prior sanction from the Central or State Government in order to prosecute a public servant. The section is a safeguard for the innocent and not a shield for the guilty[9]. The discretion to sanction for prosecution is absolute. It cannot be questioned in a court of law[10]. Trial without sanction is null and void. Subsequent trial with proper sanction is not barred[11]. If there is no sanction no cognizance of the offence can be taken at all. The sanction is required only for purpose of taking cognizance of offence. Once cognizance is taken its utility is exhausted and it is no longer needed either during trial or conviction[12].

The Benami Transactions (Prohibition) Act, 1988

(i) The Act prohibits any benami transaction (purchase of property in false name of another person who does not pay for the property) except when a person purchases property in his wife’s or unmarried daughter’s name.

(ii) Any person who enters into a benami transaction shall be punishable with imprisonment of up to three years and/or a fine.

(iii) All properties that are held to be benami can be acquired by a prescribed authority and no money shall be paid for such acquisition.

The Prevention of Money-Laundering Act, 2002

(i) The Act states that an offence of moneylaundering has been committed if a person is a party to any process connected with the proceeds of crime and projects such proceeds as untainted property. “Proceeds of crime” means any property obtained by a person as a result of criminal activity related to certain offences listed in the schedule to the Act. A person can be charged with the offence of moneylaundering only if he has been charged with committing a scheduled offence.

(ii) The penalty for committing the offence of moneylaundering is rigorous imprisonment for three to seven years and a fine of up to Rs 5 lakhs. If a person is convicted of an offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 the term of imprisonment can extend up to 10 years.

(iii) The adjudicating authority, appointed by the Central Government, shall decide whether any of the property attached or seized is involved in moneylaundering. An Appellate Tribunal shall hear appeals against the orders of the adjudicating authority and any other authority under the Act.

(iv) Every banking company, financial institution and intermediary shall maintain a record of all transactions of a specified nature and value, and verify and maintain records of all its customers, and furnish such information to the specified authorities.

Procedure followed to investigate and prosecute corrupt public servants

In order to investigate cases against corrupt public servants and to prosecute them, the following process is to be followed—

(i) The three main agencies involved in inquiring, investigating and prosecuting corruption cases are the Central Vigilance Commission (CVC), the Central Bureau of Investigation (CBI) and the State Anti-Corruption Bureau (ACB).

(ii) Cases relating to moneylaundering by public servants are investigated and prosecuted by the Directorate of Enforcement and the Financial Intelligence Unit, which are under the Ministry of Finance.

(iii) The CBI and State ACBs investigate cases related to corruption under the Prevention of Corruption Act, 1988 and the Penal Code, 1860. The CBI’s jurisdiction is the Central Government and Union Territories while the State ACBs investigates cases within the States. States can refer cases to the CBI.

(iv) The CVC is a statutory body that supervises corruption cases in government departments. The CBI is under its supervision. The CVC can refer cases either to the Central Vigilance Officer (CVO) in each department or to the CBI. The CVC or the CVO recommends the action to be taken against a public servant but the decision to take any disciplinary action against a civil servant rests on the department authority.

(v) Prosecution can be initiated by an investigating agency only after it has the received sanction.

The Lokpal and Lokayuktas Act, 2013

After the success of a longstanding movement, finally the Lokpal and Lokayuktas Act, 2013 was passed by Indian Parliament in December 2013 and received the Presidential assent on 1-1-2014. As sought for, the Act aimed at the prevention and control of corruption by setting up of an independent and impartial body at the central level named as the “Lokpal” and at the State level as the Lokayukta . The institution of Lokpal would receive complaints relating to corruption against public servants from most of the categories within and outside India. The extent of the Act is to the whole of India, including Jammu and Kashmir.

Powers of the Lokpal as per the Lokpal and Lokayuktas Act, 2013

(i) It includes the powers of superintendence over, and to give direction to the CBI. Any case when referred by the Lokpal to the CBI, the investigating officer in such case cannot be transferred without the approval of the Lokpal. The Lokpal has the power to authorise the CBI to search and seizure as and when required for the matters connected to such case.

(ii) The Inquiry Wing of the Lokpal is to be vested with the powers of a civil court that includes the Lokpal to confiscate the assets, proceeds, receipts and benefits acquired or procured by the alleged person by means of corruption under certain special circumstances.

(iii) Lokpal will have the power to recommend for the transfer or suspension of public servant connected with allegation of corruption.

(iv) During preliminary inquiry Lokpal has the power to pass any direction to prevent destruction of records by anybody.

(v) The Lokpal while dealing with the cases arising out of the Prevention of Corruption Act, 1988 or under the Lokpal Act, if recommends, the Central Government shall constitute Special Courts to hear and decide the cases. The time-limit for such courts to complete the trial as per the Act, is to be within a period of one year from the date of filing of the case in the court which may be extended for 3 months by recording in writing.

(vi) The Act, however, excludes the power of the Lokpal to inquire into any complaint made against the Chairperson or any Member of its own institution.

When the central law was enacted, Anna Hazare, the pioneer of the Lokpal movement, was quite apprehensive about the fact that it would be meaningless to enact the law unless implemented and enforced properly. He even accused the Government of delaying the Lokpal’s appointment, and questioned its intent and credibility to fight corruption. Ironically while he continues to make noises at this age, his aides like Kiran Bedi and V.K. Singh have accepted top Government positions. Arvind Kejriwal who was the Chief Architect of the Civil Society Movement against corruption in 2011 that forced United Progressive Alliance (UPA) to introduce a Bill in Parliament, has formed a party of his own, and become the Chief Minister of Delhi. Though Kejriwal passed Delhi’s Lokpal legislation in 2015, but faced several allegations of inserting weak provisions in the law.

Conclusion

Four years have already been passed since the passing of the Lokpal and Lokayuktas Act, 2014, but still it is not implemented. India is still waiting to see its first Lokpal. These four years of Government under the National Democratic Alliance (NDA) banner, which has come to power with a massive mandate to push growth and fight against corruption, is not taking any effective step to implement the law. Regarding non-appointment of the Lokpal, the Government’s contention is that a search committee could not be formed as there was no leader of opposition in the Lok Sabha. Justifying its stand by giving a very shocking explanation, the Government instead of urgently sorting out the limited issue of leader of opposition introduced a 10 page amendment to the Act in December 2014. The matter subsequently moved to a parliamentary panel. Previously, while the present party in power was in opposition, it has always emphasised more on establishment of a strong and independent Lokpal, whereas now being in power, the party is not only trying to dilute the law, but also delaying its enforcement.

The Government’s strong belief is that it is performing well instead of having a Lokpal Institution. “Corruption had eaten away our country like termites. So if I have stopped so much corruption, there will of course be many who will curse me. Only those who looted the nation are not enthused by this Government,” said the Prime Minister, while giving speech in the completion of second year celebration of his Government. The Prime Minister’s remarks come just days after the Supreme Court questioned why his Government had not appointed anyone as Lokpal. “What is holding you back? You cannot sit over it,” the court asked the Government, while seeking to know by 19-7-2016 the steps taken for the appointment. The court was hearing a Public Interest Litigation (PIL) filed by NGO Common Cause that alleged that the Government and other parties were dragging feet. In 2002 the Supreme Court had directed the Government to appoint a Lokpal to bring an end to the commission of a scam each day. Recently on 15-5-2018, while asked by the Supreme Court to the Centre regarding the steps taken by it to implement the Act, the Government informed the Supreme Court that it has appointed Mukul Rohatgi, former Attorney General of India to the post of “eminent jurist” of the Lokpal Selection Committee which post remained vacant since the demise of Senior Advocate P.P. Rao last year and is going to take necessary steps for appointment of the Lokpal.

As per the current ranking of the Transparency International’s global corruption index, India stands on 81. At this point of time, one cannot say that the Lokpal and Lokayuktas Act, 2014 would be the best law India needs to check corruption. Still the hope for having a better future could not be ruled out, which is possible only when the law would be implemented in its proper perspective.

—————

* Associate Professor, SOA National Institute of Law (SNIL), Bhubaneswar, Odisha, e-mail madhubratamohanty@soa.ac.in

[1]  Shri C.D. Deshmukh, in his lecture delivered on 11-7-1959 at Madras.

[2]  During the debates in the Lok Sabha for demands for the grants of Law Ministry, on 3-4-1963.

[3]  Quoted in “Lokpal : Ombudsman in India” M.P. Jain, First Edn., 1970, p. 2.

[4]  Justice Shri P.B. Gajendragadkar in his analysis on the “Role of Administration in a Democratic Welfare State.”

[5]  Kshemendra in his famous book Desopadesha.

[6]  State of Bombay v. Vishwakant Shrikant, 1953 SCC OnLine Bom 52 : AIR 1954 Bom 109.

[7]  Ram Krishan v. State of Delhi, AIR 1956 SC 476; Mahesh Prasad v. State of  U.P., AIR 1955 SC 70; Ram  Charan Bhatt v. State, 1964 SCC OnLine All 377 : AIR 1967 All 321.

[8]  M.C. Mitra v. State, 1951 SCC OnLine Cal 74 : AIR 1951 Cal 524; State of Madras v. A. Vaidyanatha Iyer, AIR 1958 SC 61; State of Ajmer v. Shivji Lal, AIR 1959 SC 847.

[9]  Gurbachan Singh v. State, 1969 SCC OnLine Del 57 : AIR 1970 Del 102 : 1970 Cri LJ 674.

[10]  Dharam Sarup v. State, 1952 SCC OnLine All 256 : AIR 1953 All 37 : 1953 Cri LJ 192.

[11]  Baij Nath Prasad v. State of Bhopal, AIR 1957 SC 494 : 1957 Cri LJ 597.

[12]  Ram Pukar Singh v. State, 1953 SCC OnLine All 193 : AIR 1954 All 223 : 1954 Cri LJ 459.

Foreign CourtsNews

As reported by media, the Accountability Court of Pakistan pronounced the verdict against Former Prime Minister of Pakistan Nawaz Sharif and daughter Maryam with the sentence of 10 and 7 years in jail, respectively. Nawaz has been handed a fine of 8 million pounds, while Maryam has been fined 2 million pounds. The money will go into the state treasury.

Nawaz Sharif and his family are facing trial in three corruption cases filed by the National Accountability Bureau (NAB), which are Avenfield properties, Gulf Steel Mills and Al-Azizia Steel Mills. The Avenfield reference pertains to the purchase of four flats in Avenfield House, Park Lane, London.

Accountability Court-I Judge Mohammad Bashir announced the sentence in the ‘Avenfield’ case. The Avenfield properties reference was one of three filed by the National Accountability Bureau (NAB) in light of the Supreme Court’s verdict against Nawaz in the Panama Papers case.

[Source: Dawn]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench comprising of Sudhir Agarwal and Ajit Kumar, JJ. opined that time and again, complaints of various irregularities coupled with corruption prevailing at large-scale in Development Authorities have been brought to the notice of this court in various matters and the record has fortified in respect of MDA in the present case.
The petitioner was involved in an auction process conducted by Meerut Development Authority for the sale of certain plots in the Defence Enclave, Meerut. According to the petitioner and the facts stated by him, he was the only tenderer in the whole process involved and certainly due to that reason he was declared to be the highest bidder in the auction. Subsequently, for that reason he had sent a letter to the authorities in that regard and asked for his allotment letter. Later, the petitioner came to know that tender-cum-auction sheet was tampered by adding  Respondent 5 and making his bid the highest.
The entire process of tender-cum-auction was realized to be a farce after observing the stated facts by the petitioner, which came to the conclusion of MDA violating the terms and conditions and allotting land to its own favourites at throwaway prices.
Therefore the Hon’ble Court observed that after recording the facts and stands taken in various affidavits submitted before this court, a clear collusion of all officers involved in the matter including the Vice-Chairman, MDA cannot be spared. Further with sheer disappointment in the authorities, the Court also highlighted that in the matter of public dealing where process of allotment of land needs impartial, objective and transparent procedure, MDA and its officials are indulged in otherwise corrupt activities. Patent and evident illustration of corruption can only be the apt way of depicting this act.
The matter was further directed to the Principal Secretary, Nagar Vikas to forthwith refer the matter for vigilance inquiry against all officials involved and further, accordingly criminal and other actions shall be initiated in this regard. [Narendra Kumar Tyagi v. State of U.P.,  2018 SCC OnLine All 107, order dated 11-01-2018]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RK Agarwal, Arun Mishra and AM Khanwilkar, JJ reserved verdict on the petition filed by Campaign for Judicial Accountability and Reforms (CJAR) wherin it was alleged that attempts were made to bribe some Supreme Court Judges in the matters relating to Medical admission scam.

Earlier, the same bench had dismissed the petition filed by advocate Kamini Jaiswal stating that there was no question of registering any FIR against any sitting Judge of the High Court or of this Court as it is not permissible as per the law laid down by a 5-judge Constitution Bench in K. Veeraswami v. Union of India, (1991) 3 SCC 655 ,wherein this Court observed that in order to ensure the independence of the judiciary the apprehension that the Executive being largest litigant, it is likely to misuse the power to prosecute the Judges.

The bench was formed after the Court of CJI witnessed huge ruckus after, 09.11.2017, a 2-judge bench of J Chelameswar and S. Abdul Nazeer, JJ had said that the petition filed by Kamini Jaiswal be heard by the Constitution Bench of the first five Judges.

On 10.11.2017,  Dr. AK Sikri and Ashok Bhushan, JJ, in the present case, ordered that the matter be placed before the Chief Justice for passing appropriate orders for listing this matter. When the CJI took note of the issue, he, along with 4 other judges, recalled the 2-judge bench order in Kamini Jaiswal matter that had placed the matter before a Constitution bench of the first five judges of the Supreme Court. The 5-judge bench said:

neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench.”

The order will be pronounced on 01.12.2017. [Campaign for Judicial Accountability and Reforms v. Union of India, Writ Petition (Crl) No. 169/2017, order dated 27.11.2017]

Case BriefsSupreme Court

Supreme Court: Dismissing the petition filed by advocate Kamini Jaiswal wherin it was alleged that that attempts were made to bribe some Supreme Court Judges in the matters relating to Medical admission scam, the 3-judge bench of RK Agrawal, Arun Mishra and AM Khanwilkar, JJ held that there was no question of registering any FIR against any sitting Judge of the High Court or of this Court as it is not permissible as per the law laid down by a 5-judge Constitution Bench in K. Veeraswami v. Union of India, (1991) 3 SCC 655 ,wherein this Court observed that in order to ensure the independence of the judiciary the apprehension that the Executive being largest litigant, it is likely to misuse the power to prosecute the Judges.

Noticing that the FIR mentioned by the petitioner did not reflect the names of any of the Supreme Court judges, the bench said:

“The entire judicial system has been unnecessarily brought into disrepute for no good cause whatsoever. It passes comprehension how it was, that the petitioner presumed, that there is an FIR lodged against any public functionary.”

It was held that there cannot be registration of any FIR against a High Court Judge or Chief Justice of the High Court or the Supreme Court Judge without the consultation of the Hon’ble Chief Justice of India and, in case there is an allegation against Hon’ble Chief Justice of India, the decision has to be taken by the Hon’ble President, in accordance with the procedure prescribed in the said decision.

Upon the contention that a judicial order cannot be violated, and it could not have been rendered ineffective by the Constitution Bench decision of this Court dated 10.11.2017 and that by doing so the Chief Justice was being a judge in his own case, the bench relied upon the 3-judge bench decision in Dr. D C Saxena v. Chief Justice of India, (1996) 5 SCC 216, where it was held:

it was the duty of the Chief Justice to assign judicial work to brother Judges. By doing so, he did not become a Judge in his own cause. It is contempt to imply that the Chief Justice would assign it to a Bench which would not pass an order adverse to him.”

Regarding the contention that A.M. Khanwilkar, J. should have recused himself from the bench as he was a member of the Bench which disposed of the matter of Prasad Education Trust vide order dated 18.9.2017, the Court said that it was nothing but another attempt of forum hunting which cannot be permitted. The bench said:

“it is the duty of the Bench to take up such matter firmly; such unscrupulous allegations and insinuations cannot be allowed to be hurled by oral prayer made on behalf of the petitioner for recusal.”

To conclude, the bench said:

“Though it is true, that none of us is above law; no person in the higher echelons is above the law but, at the same time, it is the duty of both the Bar and the Bench, to protect the dignity of the entire judicial system.”

Coming down heavily upon the petitioner, who after arguing at length, at the end, submitted that she was not aiming at any individual, the Court said:

“If that was not so, unfounded allegations ought not to have been made against the system and that too against the Hon’ble Chief Justice of this country.”

Upon the question of unprecedented situation being created on 10.11.2017, the bench said:

“As Hon’ble Chief Justice of India had to assign it to a Bench, situation of dilemma was created for Hon’ble Chief Justice of India whether to assign the matter of CJAR to an appropriate Bench or to go by the judicial order by constituting a Bench of 5 senior Judges on 13.11.2017.”

The Court said that it deprecated the practice of forum hunting and that it cannot fall prey to such unscrupulous devices adopted by the litigants, so as to choose the Benches, as that is a real threat to very existence of the system itself and it would be denigrated in case we succumb to such pressure tactics. [Kamini Jaiswal v. Union of India, 2017 SCC OnLine SC 1322, decided on 14.11.2017]

Case BriefsSupreme Court

The Court number 1 of the Supreme Court witnessed a high voltage drama when a 7-judge bench headed by the Chief Justice of India, Justice Dipak Misra, assembled for reviewing the 2-judge bench order calling for constitution of a Constitution Bench of the first five judges of the Supreme Court to hear the matter wherein it was alleged that attempts were made to bribe some Supreme Court Judges in the matters relating to Medical admission scam. The bench of J Chelameswar and S. Abdul Nazeer, JJ given the said order on 09.11.2017 and had listed the matter on November 13, 2017.

As per the petition filed by advocate Kamini Jaiswal highlighted that a case was registered by the Central Bureau of Investigation against Retired Orissa High Court Judge, Justice IM Quddusi containing serious allegations implicating the said Judge under Section 8 and Section 120-B of the Prevention of Corruption Act, 1988. Also, in another related matter mentioned before the bench of Dr. AK Sikri and Ashok Bhushan, JJ, Advocate Prashant Bhushan brought the order dated 09.11.2017 to the notice of the Court and hence, the Court ordered that the matter be placed before the Chief Justice for passing appropriate orders for listing this matter.

The 7-judge bench excluded Chelameswar, J, the senior most judge of the Supreme Court. Sikri and Bhushan, JJ also recused themselves from the bench and hence, the matter was then heard by a 5-judge bench of CJI along with RK Agrawal, Arun Mishra, Amitava Roy and AM Khanwilkar, JJ.

The order of the 5-judge bench read:

“There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers.”

The bench relied upon the decision of a three-Judge Bench in State of Rajasthan vs. Prakash Chand, (1998) 1 SCC 1, wherin it was held that the Chief Justice of the High Court is the master of the roster and there is no justification not to treat the Chief Justice of India, who is the Chief Justice of the Apex Court, to have the same power.

It was added:

“Needless to say, neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible.”

Amitava Roy, J, said:

“You are supporting the cause of accusing a sitting Chief Justice on his face!”

Advocate Kamini Jaiswal, who filed the petition before the Court said that in the last one month, the CJI has taken up 6 matters that were before other benches.

To this, CJI responded:

“Yes! That is my prerogative. The MoP matter ought not to have been heard on the judicial side.”

Responding to the demands of certain advocates who said that the proceeding of the matter must be carried in camera and press should not be allowed to print it, CJI said:

“All of us collectively believe in freedom of speech as long as it is within limits. But I am always of the view that Freedom of Expression must be respected. I will not restrain the press.”

CJI, hence, directed that the matter be placed before him for forming an appropriate bench. The matter is now listed after 2 weeks. [Campaign for Judicial Accountability and Reforms v. Union of India, 2017 SCC OnLine SC 1302, order dated 10.11.2017]

With inputs from: https://twitter.com/vikramhegde

Case BriefsSupreme Court

Supreme Court: Considering the seriousness and urgency of the matter wherein it was alleged that attempts were made to bribe some Supreme Court judges in the matters relating to Medical admission scam, the bench of J Chelameswar and S. Abdul Nazeer, JJ said that the matter be heard by the Constitution Bench of the first five Judges and listed the matter on November 13, 2017.

The petition filed by advocate Kamini Jaiswal highlighted that a case was registered by the Central Bureau of Investigation against Retired Orissa High Court Judge, Justice IM Quddusi containing serious allegations implicating the said Judge under Section 8 and Section 120 B of the Prevention of Corruption Act, 1988. The Court, hence, agreed to hear the matter and said:

“The FIR contained certain allegations which are disturbing. The allegations pertain to the functioning of this Court. On perusal of the FIR which was placed before us in the morning, we thought it necessary and proper to take up the matter immediately.”

As an interim measure, the Court directed that the case diary and all the related materials be kept in a sealed cover and produce the same before the Constitution Bench on Monday, the 13th November, 2017.

The controversy relates to de-registration of 46 medical colleges by Central Government for substandard facilities. In September, 2017, CBI arrested the former High Court judge on allegations of hatching a conspiracy to bribe public officials, including Supreme Court judges after Supreme debarred the colleges from admitting students for academic years 2017-18 and 2018-19. [Kamini Jaiswal v. Union of India, Writ Petition(s)(Criminal) No(s). 176/2017, order dated 09.11.2017]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr DY Chandrachud, JJ  listed the appeal by BJP leader Ajay Kumar Agarwal, challenging the 2005 Delhi High Court order quashing charges against Europe-based industrialists Hinduja brothers in the politically-sensitive Rs 64 crore Bofors pay-off case, for hearing in the week commencing from October 30 this year.

Here is the timeline of the events:

  • March, 1986: India and the Swedish arms manufacturer AB Bofors enter into Rs 1,437 crore deal for the supply of 400 155mm Howitzer guns for the Indian Army.
  • April, 1987: Swedish Radio claims that the company had paid bribes to top Indian politicians and defence personnel.
  • January, 1990: CBI registers case for alleged offences of criminal conspiracy, cheating, forgery under the Penal Code and other sections of Prevention of Corruption Act against Martin Ardbo, the then President of AB Bofors, alleged middleman Win Chadda and Hinduja brothers.
  • October, 1990: First charge-sheet is filed against Win Chadda, Italain businessman Ottavio Quattrocchi, then Defence Secretary SK Bhatnagar, Ardbo, the Bofors company and Hinduja brothers
  • July, 1993:  Ottavio Quattrocchi flees India and has never appeared before any court in India to face prosecution.
  • May, 2005: Justice R S Sodhi of the Delhi High Court, since retired, quashes all charges against the three Hinduja brothers, Srichand, Gopichand and Prakashchand, and the Bofors company and castigates the CBI for its handling of the case saying it had cost the exchequer about Rs 250 crore.
  • October, 2005: Ajay Agarwal files appeal before the Supreme Court after the CBI failes to approach the top court with the appeal within the 90-day deadline following the High Court verdict.
  • March, 2011: Special CBI Court discharges Ottavio Quattrocchi from the case saying the country cannot afford to spend hard-earned money on his extradition which has already cost Rs 250 crore.
  • 4 accused, namely, Ottavio Quattrocchi, SK Bhatnagar, Martin Ardbo and Win Chadda, have died pending trial.

In the matter that is pending before the Supreme Court since last 12 years, the Court had heard the matter on 01.12. 2016 after a gap of almost six years since 12.08.2010. The matter was last listed on 28.02.2017 when it was adjourned. The judge bench has now agreed to hear the 12 year old plea from the Month of October.

Source: PTI

 

Case BriefsSupreme Court

Supreme Court: The bench of R. Banumathi and Kurian Joseph, JJ upheld the conviction of former UP Chief Secretary Neera Yadav and former IAS Officer Rajiv Kumar under Section 120-B IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 for being involved in the NOIDA land allocation scam during their tenure from January 1994 to December 1995. The Court, however, reduced the sentence from 3 years to 2 years imprisonment.

During her tenure, Neera Yadav, who served as the Chairperson and Chief Executive Officer of NOIDA during the said time, was alleged to be involved in conspiracy with other officials abused her position while committing grave irregularities in the matters of allotments and conversions of land in NOIDA. Based upon the evidence produced, the Court held that Neera Yadav abused her position as a public servant to benefit herself and her kith and kin. She not only made a mockery of rules and regulations of NOIDA, but also misused her position by completely neglecting her duties. Being a Chairman-cum-CEO of NOIDA she was expected to ensure that the allotment of plots in NOIDA are effected in strict compliance with the Rules and Regulations of NOIDA. However, the she herself bypassed the Rules and Regulations of NOIDA by submitting ante dated, half-filled applications for seeking allotment of plots and by not paying the total amount payable in lieu of the allotment.

Writing a separate judgment on the conviction of Rajiv Kumar, who served as the Deputy Chief Executive Officer, NOIDA from June 1994 to December 1995, the Court noted that there is no doubt that Neera Yadav and Rajiv Kumar abused their position as a plot was converted from guest house to ‘residential’ and in violation of the norms and circulars, the same was allotted to the Rajiv Kumar to gain pecuniary advantage to him.

In light of the facts that the appellants Rajiv Kumar and Neera Yadav were undergoing sentence from 18.04.2016 and 14.03.2016 respectively, the subsequent Quashment of the allotment of the plots in question; the fact that the conviction has put their job and retiral benefits in jeopardy and that the incident dates back to 1994, the Court thought it fit to reduce the sentence from 3 years to 2 years imprisonment.

New Okhla Industrial Development Authority (NOIDA) was established in the year 1976 for developing and managing Asia’s largest Integrated Industrial Township for the industrial growth of the area. [Neera Yadav v. CBI, 2017 SCC OnLine SC 858 , decided on 02.08.2017]

 

Case BriefsForeign Courts

Pakistan Supreme Court: The 5-judge bench of Asif Saeed Khan Khosa, Ejaz Afzal Khan, Gulzar Ahmed, Sh. Azmat Seed and Ijaz Ul Ahsan, JJ declared Pakistan Prime Minister Nawaz Sharif unfit to be a member of the Majlis-e-Shoora (Parliament) after he failed to prove himself innocent in the Panama Papers case against him and his children.

The Court said that PM Nawaz Sharif was not honest in terms of Section 99(f) of the Representation of the People Act, 1976 and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and therefore he was disqualified to be a Member of the Majlis-e-Shoora (Parliament) as he not only furnished a false declaration under solemn but also failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976.

The Court had, by an earlier order, constituted a Joint Investigation Team to look into the alleged money laundering by Nawaz Sharif & his family members. The Court said that the questions as to how did Gulf Steel Mill come into being; what led to its sale; what happened to its liabilities; where did its sale proceeds end up; how did they reach Jeddah, Qatar and the U.K. And how Nawaz Sharif’s children were in possession of properties in their tender ages were important questions to be looked into. It was said that in normal circumstances, such exercise could be conducted by the NAB but when its Chairman appears to be indifferent and even unwilling to perform his part, it was important that an impartial Joint Investigation Team investigated the matter.

The Court asked the Election Commission of Pakistan to issue a notification disqualifying PM Nawaz Sharif with immediate effect. Nawaz Sharif resigned from his office soon after the decision. [Imran Ahmed Khan v. Mian Muhammad Nawaz Sharif, 2017 SCC OnLine Pak SC 2, decided on 28.07.2017]

 

Case BriefsHot Off The PressNewsSupreme Court

Supreme Court: Restoring the conspiracy charges against RJD Chief Lalu Prasad Yadav in Fodder Scam, the bench of Arun Mishra and Amitava Roy, JJ directed that the trial in the matter be concluded within 9 months. The Court explained that the modus operandi being the same would not make it a single offence when the offences are separate. Commission of offence pursuant to a conspiracy has to be punished. If conspiracy is furthered into several distinct offences there have to be separate trials. Each trial has to be separately held and the accused to be punished separately for the offence committed in furtherance of conspiracy. In case there is only one trial for such conspiracy for separate offences, it would enable the accused person to go scotfree and commit number of offences which is not the intendment of law.

Earlier, the Jharkhan High Court had dropped the charges against the RJD Chief on the ground that he cannot be tried twice for the offence. In 2013, a trial court had imposed 5 years sentence upon Lalu Prasad Yadav in a different case relating to fodder scam. The CBI, however, argued that both the cases are different as both relate to different amount of embezzlement during different period of time. Terming the order of the High Court to be flawed, the Court said that it is difficult to say that prosecution would be bound by the finding in a previous trial on a similar issue of fact. It was held that n what manner the duty has been carried on for different periods would be the question of fact in each case and there is no question of double jeopardy in such a case. The Court further said that the impugned orders are palpably illegal, faulty and contrary to the basic principles of law and Judge has ignored large number of binding decisions of this Court while giving impermissible benefit to the accused persons and delayed the case for several years.

Concerned with the conduct of the CBI in such important matters, the Court said that lethargy on CBI’s part is intolerable as CBI is expected of it to be more vigilant. If CBI fails to act timely, peoples’ faith will be shaken in its effectiveness. The Court said that in important cases Director, CBI should devise methodology which should not be cumbersome as reflected in these cases. Being the head of the institution it was the responsibility of the Director, CBI to ensure that appeals were filed within limitation. There should not have been delay in filing special leave petitions at all.

The Court had ordered CBI to investigate the large-scale defalcation of public funds, fraudulent transactions and fabrication of accounts in Animal Husbandry Department of State of Bihar in State of Bihar v. Ranchi Zila Samta Party, (1996) 3 SCC 682. The allegations of corruption relate to embezzlement of around Rs. 94 Lakhs during the regime of Lalu Prasad Yadav by procuring large amount of fodder, medicines and animal husbandry equipment for fictitious livestock. In the scam that lasted for several years, total 64 cases had been registered relating to Bihar Fodder Scam. 52 cases involved withdrawal of huge sums of money from Government treasuries falling within Jharkhand State and in 36 out of 52 cases charge-sheet had been filed by CBI before the appointed day. [State of Jharkhand v. Lalu Prasad, 2017 SCC OnLine SC 551, decided on 08.05.2017]

Case BriefsForeign Courts

Supreme Court of Pakistan: While addressing the grave issue of involvement of Prime Minister of Pakistan, Nawaz Sharif in the ‘Panama Papers’ scandal, a five Judge Bench of Asif Saeed Khan Khosa, Ejaz Afzal Khan, Gulzar Ahmed, Azmat Saeed, Ijaz ul Ahsan, JJ., gave direction for the constitution of a Joint Investigation Team (JIT) comprising of senior officials and nominees from the Federal Investigation Agency, National Accountability, Security & Exchange Commission of Pakistan, State Bank of Pakistan and Inter Services Intelligence to conduct a thorough investigation and examine the evidences related to the dubious nature of the deals conducted with reference to the existence, sale and liabilities of Gulf Steel Mill; the extent of the involvement of the respondents in the purchase of several properties in early 90s; possession and acquisition disproportionate assets by the dependants of the respondents etc. With a ratio of 3:2, the Bench decided that the question of disqualification of the Prime Minister from Majlis-e- Shoora (Parliament) shall be considered only after the receipt of the final report made by the JIT, which should necessarily be concluded within sixty days from the date of its constitution.

The ‘Panama Papers’ scandal rocked several governments worldwide by exposing high-profile personalities, including Prime Minister Sharif and his family, for their involvement in illegal offshore financial transactions. The Panama Papers are 11.5 million leaked documents that detail financial and attorney–client information for more than 214,488 offshore entities. The documents belonged to the Panamanian law firm and corporate service provider Mossack Fonseca.

Expressing their lament upon the involvement of the PM in a matter of such extensive corruption, 2017 SCC OnLine Pak SC 1the Court observed that it became important for them to pass orders so that the true facts could come before the people of Pakistan who have a fundamental right to be governed in accordance with law. The Court furthermore stated that it is indeed high time that systems are put in place to develop a culture of accountability at all levels in order to cleanse the system and institutions from the evils of corruption, money laundering, loot and plunder of national resources by a few, irrespective of their rank in the system. However the Bench could not reach any consensus regarding the issue of disqualification of the PM. [Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, 2017 SCC OnLine Pak SC 1 , decided on 20.04.2017]

 

Case BriefsSupreme Court

Supreme Court: Writing down a hefty 570-page judgement, the Bench of P.C. Ghose and Amitava Roy, JJ restored the conviction order of the trial court against Sasikala Natarajan, V.N. Sudhakaran and J. Elavarasi for holding disproportionate assets. All 3 were awarded the sentence of 4 years each by the Trial Court.

The judgement where the Court said that the present case demonstrates a deep rooted conspiratorial design to amass vast assets without any compunction and hold the same through shell entities to cover up the sinister trail of such illicit acquisitions and deceive and delude the process of law, came at the time when Sasikala was eyeing the post of Chief Minister of Tamil Nadu.

The Court noticed that J. Jayalalitha, who was the Tamil Nadu Chief Minister at the relevant time had come into possession of assets worth Rs.53,60,49,954.00, disproportionate to the known sources of her income during the check period and had got the same dispersed in the names of Sasikala, Sudhakaran and Elavarasi and the firms & companies involved to hold these on her behalf with a masked front.

The trial court had held that private individuals can be prosecuted by the Court on the ground that they have abetted the act of criminal misconduct falling under Section 13(1)(e) of the Prevention of Corruption Act, 1988 committed by the public servant. Setting aside the decision of the Karnataka High Court in Selvi J. Jayalalitha v. State, 2015 SCC OnLine Kar 124, decided on 11.05.2015, where the respondents were acquitted of all criminal charges, the Court held that the Trial Court is correct in the face of the overwhelming evidence indicating the circumstances of active abetment and conspiracy by Sasikala, Sudhakaran and Elavarasi in the commission of the offences under Section 13(1)(e) of the 1988 Act.

The Court further said that corruption is a vice of insatiable avarice for self-aggrandizement by the unscrupulous, taking unfair advantage of their power and authority and those in public office also, in breach of the institutional norms, mostly backed by minatory loyalists. Both the corrupt and the corrupter are indictable and answerable to the society and the country as a whole. [State of Karnataka v. Selvi. J. Jayalalitha, 2017 SCC OnLine SC 134, decided on 14.02.2017]

Case BriefsSupreme Court

Supreme Court: Acting upon the PIL highlighting the menace of growing sales of adulterated and synthetic milk in different parts of the country, the 3-judge bench of T.S. Thakur, CJI, R. Banumathi and U.U. Lalit, JJ directed the Union of India and the State Governments shall take appropriate steps to implement Food Safety and Standards Act, 2006 in a more effective manner. Considering the seriousness of the matter, the Court issued the below mentioned guidelines
• Appropriate steps should be taken to inform owners of dairy, dairy operators and retailers working in the State that if chemical adulterants like pesticides, caustic soda and other chemicals are found in the milk, then stringent action will be taken.
• High risk areas, where there is greater presence of petty food manufacturer/business operator etc., and times especially near festivals etc., when there is risk of ingesting adulterated milk or milk products due to environmental and other factors, should be identified and greater number of food samples should be taken from those areas.
• Food Safety Authorities (FSA) should also ensure that there is adequate lab testing infrastructure and ensure that all labs have/obtain NABL accreditation to facilitate precise testing. State Government to ensure that State food testing laboratories/district food laboratories are well-equipped with the technical persons and testing facilities.
• FSA should take measures for sampling of milk and milk products, including spot testing through Mobile Food Testing Vans equipped with primary testing kits for conducting qualitative test of adulteration in food.
• For curbing milk adulteration, an appropriate State Level Committee headed by the Chief Secretary or the Secretary of Dairy Department and District Level Committee headed by the concerned District Collector shall be constituted as is done in the State of Maharashtra to take the review of the work done to curb the milk adulteration in the district and in the State by the authorities.
• The authorities should also inform the general public of the nature of risk to health and create awareness of Food Safety and Standards and educate school children by conducting workshops and teaching them easy methods for detection of common adulterants in food, keeping in mind indigenous technological innovations (such as milk adulteration detection strips etc.)
Directing the Union of India/State Governments to evolve a complaint mechanism for checking corruption and other unethical practices of the Food Authorities and their officers, the Court said that a website should be set up, specifying the functioning and responsibilities of food safety authorities and also creating awareness about complaint mechanisms. Also, all States should also have and maintain toll free telephonic and online complaint mechanism. [Swami Achyutanand Tirth v. Union of India, 2016 SCC OnLine SC 770, decided on 05.08.2016]

Case BriefsSupreme Court

Supreme Court: While reversing the decision laid down by the High Court with respect to the conviction of the appellant under the Prevention of Corruption Act, 1988, T.S. Thakur, CJ. and V. Gopala Gowda, J. held that there is no substantive evidence to prove demand of illegal gratification from the respondent and therefore, directed the Jail Superintendent to release the appellant.

Relying on the decisions laid down by the Hon’ble Supreme Court, in a catena of judgments including the cases of B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55, A. Subair v. State of Kerala, (2009) 6 SCC 587 and State of Kerala v. C.P. Rao (2011) 6 SCC 450, noted Counsel Mr. Sidharth Luthra, appearing on behalf of the appellant contended that demand of illegal gratification by the accused is a sine qua non for constitution of an offence under the Prevention of Corruption Act and mere production of the tainted money recovered from the appellant along with positive result of phenolphthalein test, sans the proof of demand of bribe is not enough to establish the guilt of the charge made against appellant.

While agreeing upon the contention raised by the learned senior counsel, the Court held the impugned judgment and order of the High Court is not only erroneous but also suffers from error in law and therefore, liable to be set aside. [Krishan Chander v. State of Delhi, 2016 SCC OnLine SC 10  decided on January 6, 2016]

High Courts

Delhi High Court: While hearing upon the present bail application, the bench of Vipin Sanghi, J., discussed the legal issue of competence and jurisdiction of Anti Corruption Board (ACB) of the Government of National Capital Territory of Delhi (GNCTD) vis-à-vis Prevention of Corruption Act, with regard to the Delhi Police, and observed that, the applicant being a Delhi Police personnel serving the citizens of National Capital Territory of Delhi, therefore the functions of the Delhi Police personnel is substantially related to the affairs of the GNCTD. Thus the Court was of the view that the ACB has the jurisdiction to entertain and act upon any complaint under the Prevention of Corruption Act against a Delhi Police personnel.

In the present case, the applicant was caught red-handed by the officials of the ACB while accepting bribe from a small scale businessman. Counsel for the applicant N. Harihahran put forth the contention that ACB had no jurisdiction to act against the applicant by the virtue of Article 239-AA of the Constitution and the Notification by the Lieutenant Governor dated 08.11.1993, which was further amended by the Union Ministry of Home Affairs on 23.07.2014. Counsel for the State, Dayan Krishnan submitted that the legislative power of the Legislative Assembly and the executive power of the GNCTD in relation to investigation of crimes come from the Entries 1 and 2 of the Concurrent List of the Seventh Schedule of the Constitution.

Upon perusal of the contentions, the Court observed that, since the Union of India is not the party to the proceedings and the question involved is of major constitutional importance which has a bearing on the executive authority of the Union, therefore it is not appropriate for the Court to delved into the legality and complexities of the issue in a bail application involving the applicant’s personal liberty. The Legislative Assembly of the NCTD constituted by Article 239AA 2(a) is empowered by Article 239AA (3)(a), to make laws in respect of matters enumerated in, the concurrent list of the Seventh Schedule to the Constitution. Therefore, in respect of matters dealt with by Entries 1 and 2 of the Concurrent List, the Lieutenant Governor cannot act in his discretion. The Court further opined that the Notification issued by the Home Ministry on 23.07.2014 and subsequently on 21.05.2015, amending the 1993 Notification, can be termed as a suspect as the Union lacks the executive authority to act in respect of matters dealt with in Entries 1 & 2 of List III of the Seventh Schedule since the law made by Parliament, i.e. GNCTD Act, 1991 read with Article 239 AA puts restrictions on the executive authority of the President. Anil Kumar v. GNCT of Delhi, 2015 SCC OnLine Del 9633, decided on 25.05.2015 

Supreme Court

Supreme Court: While deciding the fate of a cashier employed in the Life Insurance Corporation of India (LIC) who was charged with embezzlement of Rs. 533 which was a half yearly insurance premium of a policy holder, the Division Bench of Vikramjit Sen and P.C. Pant, JJ. upheld the decision of the Allahabad High Court that substituted the punishment of removal from service to compulsory retirement from service. The Bench further observed that no sympathy is to be shown in while punishing a person guilty of corruption.

In the instant case the appellant embezzled the half yearly insurance premium of the policy holder by neither crediting it to the account of the policy holder nor depositing it with the LIC. He further forged the entry of the amount in the ledger sheet. Upon the revelation of the offence after a departmental enquiry, the appellant was removed from the service. The Allahabad High Court on hearing upon the challenge against the appellant’s removal held that appellant seemingly committed the forgery in the ledger books to cover up his mistake and substituted the order of removal with that of compulsory retirement. The appellant preferred the present appeal challenging the decision of the High Court.

The counsel for the appellant Gaurav Agarwal argued that the present case is of temporary embezzlement of a small amount therefore should be awarded with minor punishments. The Court however reiterated its stand taken in Rajasthan State Road Transport Corporation v. Bajrangi Lal, (2014) 4 SCC 693 and held that irrespective of the fact that whether the amount embezzled is large or small sympathy shown in giving punishment in such cases is totally uncalled for and opposed to public interest. On this observation the Court refused to interfere with the order of compulsory retirement passed by the Allahabad High Court. Diwan Singh v. Life Insurance Corporation of India2015 SCC OnLine SC 1, decided on 05.01.2015