The role of the Legislature & Judiciary
he recent political impasse over the 2G spectrum scam and the Opposition’s insistence in having a Joint Parliamentary Committee (JPC) probe brings alive the political situation prevalent in the mid 1980s with the discovery of the Bofors scandal. The situation then was similar to the one we see in the fallout of the 2G scam the Indian National Congress kept protracting a response or action to seriously investigate the scandal and the Opposition kept insisting on a JPC. The demand for a JPC probe was finally accepted, but, when presented before the Parliament, the Opposition complained that the constitution of the JPC was skewed in the favor of the ruling party causing a huge furore across the spectrum. This was followed by senior Congressmen defecting and an eventual victory to the Opposition. The reluctance on the part of Congress today to accede to a demand for JPC and aggressive rebuttals from the Government, of which Mr. Kapil Sibal, in charge of the Telecom Ministry after the resignation of Mr. A. Raja, is the eloquent representative, can perhaps be understood in the context of avoiding a repetition of 1989. The mudslinging and counter-accusations are fairly conspicuous. Though one might possibly be disconsolate with the political exchanges and the deadlock in Parliament, (that, as some news channels focus on, has caused a loss of tens of crores to the nation) it might be useful to view this confrontationist pattern in Indian politics as prompting, beneath its aggressive sensationalism, a need to understand the benefits of utilizing the opportunities a nation has in its legislative and judicial structures in probing mismanagement or corruption by the Executive. In that regard, attempts by political parties to maneuver how best they can utilize the institutional framework to further their interests (which may or may not have a useful larger motive) must not necessarily be seen as disproportionate or even unrighteous; in any case, that is a tangential exercise. One’s political allegiances or ideologies must not come in the way of an objective assessment of the respective stand taken by our nation’s representatives in the Parliament. Taking the context of the 2G spectrum scam, I endeavor to explain the purpose and scope of parliamentary committees in the backdrop of scathing political confrontation as well as the active role taken by the Judiciary in attempting to sustain a healthy and overall net positive balance in the idea of justice held by the nation. Throughout this article, I argue that whereas the collective focus of the nation is, in most cases, on criminal penalties and retribution against wrongdoers, it is equally important, if not more, to have a comprehensive probe on the systemic deficiencies, quality of leadership not just of the Prime Minister but also of ministers and bureaucrats as well as policy-framing procedures all areas that may not necessarily result in criminal conviction. In other words, probing in detail how some members of the Executive allegedly managed such a scam is as important as convicting them in order to advance the demand for procedural reforms and transparency in governance.
The Supreme Court’s “continuing mandamus”
The Supreme Court of India has, in an act of remarkable judicial activism, created the concept of “continuing mandamus” on policing and investigative authorities in order to ensure that criminal investigation, particularly in high-profile cases, is done without intrusions from the Executive. To further this free and fair investigation, the Supreme Court monitors investigations performed by agencies like the Central Bureau of Investigation. In its order dated December 16, 2010 in Centre for Public Interest Litigation and Ors. v. Union of India and Ors., the Supreme Court ordered a continuing mandamus on the investigation by the CBI and the Enforcement Directorate into the 2G spectrum scam. The Court has ordered the CBI to investigate serious irregularities in the grant of licenses, blatant violation of terms and conditions of licenses, inaction on part of TRAI and Department of Telecommunication against those licensees who sold their stakes/equities for huge sums, grant of huge loans by the public sector and other banks to some of the companies which have succeeded in obtaining licenses in 2008 and whether the Department of Telecommunication’s officials were signatories to these loan agreements. The inherent objective of this court-ordered investigation is to find out convictable instances of criminal behavior, mostly corruption, and to punish the guilty. Indeed, the course of investigation may reveal systemic deficiencies or inefficient policy decisions or inaction at the top, but these revelations shall be assessed for the purposes of a criminal conviction to or violation of the law by wrongdoers. The collective focus, therefore, will be on “prosecutable evidence”.
Moreover, a surprising fact that in the same hearing, the Solicitor General represents the Executive and, specifically, the Department of Telecommunications whereas the Additional Solicitor General represents the CBI and the Enforcement Directorate, is a severe conflict of interest that displays some of the inherent problems with the legal representation and advancement of investigation by the CBI in a court of law. Indeed, it is very likely that the CBI’s investigation might be limited by how its counsel (often the law officers of the Executive) advises the agency on legal tenability of pursuing investigations. While the Supreme Court may (and it has lately) pass strictures against CBI for its shoddy investigations, the attitude of governments has been to ignore such strictures. One shall recollect, in a recently televised interview, Mr. Kapil Sibal passing these strictures off as ‘mere observations’ and not constituting the Court’s judgment. In this context, a wider legislative inquiry by a team consisting of Members of the Parliament of the Opposition who have more insight on the desired quality of governance and who can engage in open criticism might be instructive on many other aspects of this scam.
The Legislature’s options the different Committee probes
The significant (and strategic) political drama over the past couple of weeks has witnessed loud protests from different sides of the political spectrum indicating divergent preferences for delineating the scope of investigation with the Congress-led government preferring a Public Accounts Committee (“PAC”) probe as opposed to a Joint Parliamentary Committee (“JPC”) probe demanded by the Opposition at the cost of normal Parliament work. Before going into an assessment of these respective mediums of legislative inquiry, it is pertinent to understand the purpose of Committees, particularly since the act of setting up a Committee often evokes cynicism among the nation as a tactic to delay punishment. The need for Committees arises out of a need for vigilance on the part of the Legislature over the actions of the Executive that cannot be debated and enquired at length during normal discourse in the Parliament. These Committees are not meant to weaken the administration; rather they prevent misuse of power exercisable by the Executive by highlighting mismanagement and abuses through its Reports that are discussed in the Parliament. Parliamentary control in the context of the functioning of the Committees has, as per the description on our Parliament website, “influence, not direct control; advice, not command; criticism, not obstruction; scrutiny, not initiative; and accountability, not prior approval”.
The main realm of the PAC probe is to ascertain whether the money granted by Parliament has been spent by Government within the scope of the Demand. The Appropriation Accounts of the Government of India and the Audit Reports presented by the Comptroller and Auditor General mainly form the basis for the examination of the PAC. The Comptroller and Auditor General is the “friend, philosopher and guide” of the PAC. It is the duty of the PAC to satisfy itself:
The Committee, constituted every year, examines cases involving losses, nugatory expenditure and financial irregularities. As is self-explanatory, the Committee is not concerned with questions of policy and its scope can be said to be broadly limited to what the CAG has concluded. If the PAC wants to question a minister or the Prime Minister on any issue pertaining to its investigation, it has to get an approval from the speaker before doing so. Notably, the JPC’s authority to do so would depend on the terms of the motion that the Parliament decides. Therefore, though the Prime Minister has agreed to appear before the PAC quoting the slogan that Ceasar’s wife must be above suspicion, the Leader of Opposition in the Rajya Sabha, Arun Jaitley, responded stating that ‘Ceasar’s wife did not choose her form of inquiry’. While one often tends to express preference for a Supreme Court monitored investigation as free and fair and without overbearing political motives (which it certainly is), it is useful to point out here that legislative inquiries reflect upon many other aspects of a scam and is, in that sense, supplementary to the Supreme Court’s jurisdiction. I add here a caveat that in line with its remarkable judicial activism, the affidavits filed by the Centre for Public Interest Litigation indicate that the Supreme Court will look upon matters very similar to those the PAC is authorized to look into, which takes me to the importance of a JPC.
|*Kartikeya Tanna is an attorney by profession and is a partner at Tanna Associates, a law firm in the State of Gujarat. Kartikeya is actively involved in current affairs around the world and has a special interest in politics. He regularly writes articles on laws, finance, politics and economics for various publications. He also maintains his blog at www.kartikeyatanna.com which contains a collection of his writings.|
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