The Supreme Court's ruling on Subramaniam Swamy and the PMO is not just about A. Raja and the PMO. It can give the government an excuse to drag its feet on dozens of other cases.

The PMO sat on Subramanian Swamy’s letter seeking sanction from the PM for the prosecution of A. Raja under the Prevention of Corruption Act (POCA) for 16 months. The Delhi High Court denied Swamy’s request in 2010. Yesterday the Supreme Court ruled on this. While much of the media coverage is about whether this gave the PM a clean chit, while wrapping the PMO on its knuckles, Kartikeya Tanna, a partner at Tanna Advocates in Ahmedabad talked to Bar & Bench about the larger implications of the decision. Here are some excerpts. You can read the entire interview on Bar & Bench.

Bar & Bench: What is the context of yesterday’s proceedings in the Supreme Court?

KT: In May 2010, the high court denied Swamy’s request on the grounds that because Manmohan Singh directed investigation by the CBI against Raja which was in progress hence it would not be appropriate to ask Singh to take a decision on sanctioning prosecution. This is despite the fact that Swamy had collected vital pieces of evidence against Raja and submitted it to the PMO. The erroneous premise taken by the Delhi High Court, which was pointed out by the SC Bench, was that it was the CVC which ordered the CBI to investigate Raja and not the PM.

As we know, A Raja resigned as the telecom minister in November 2010 and was subsequently jailed in the process of investigation. Therefore, the requirement for obtaining sanction of the PM did not exist any longer. Nonetheless, Swamy requested the Supreme Court to provide an opinion, for future purposes, on (a) whether an ordinary citizen has the right to file a complaint for obtaining sanction of prosecution; and (b) the rules surrounding grant of sanction within a specified time period, given the fact that the PMO did not respond to Dr. Swamy’s request for as long as 16 months. This forms the crux of the order passed by the Supreme Court yesterday.

What did the court say?

On the question of whether an ordinary citizen has the right to file a complaint for prosecution of a public servant alleged to have committed an offence, the Court very clearly stated that anyone could set the criminal law in motion upon filing of a complaint except where a law creating the said offence contained provisions to the contrary.

On the critical question of the time-limit for granting of sanction by the sanctioning authority (i.e. the PM in Raja’s case), a crucial distinction can be seen in the opinions of the two judges.

Justice Singhvi referred to paragraph 58(I)(15) of Vineet Narain v Union of India (“Vineet Narain”) where the court had given the direction that a time-limit of three months for grant of sanction for prosecution must be strictly adhered to and an additional one month may be allowed where consultation was required with the office of the Attorney General. (That judgement) expressly mentioned that these were “directions requiring strict compliance/adherence of the Union of India and all concerned”. Therefore, directions in Vineet Narain, specially the time limit of three months for grant of sanction for prosecution, have the force of law until the legislature makes a law pertaining to that very issue.

Justice Singhvi’s opinion ended with the statement that in future, every competent sanctioning authority shall take appropriate action on the representation made by a citizen for sanction of the prosecution of a public servant strictly in accordance with the direction contained in Vineet Narain and CVC guidelines.

Section 19 of the POCA does not mention any time limit for granting sanction. This is crucial. This means that until Section 19 expressly mentions a time-limit, it is the Court’s directions in Vineet Narain that will have the force of law, i.e., the time-limit of 3 months with an additional month in the specified situation.

Instead, Justice Ganguly stated that the absence of any time-limit in Section 19 gave “the sanctioning authority with unbridled power which has often resulted in protecting the guilty and perpetuating criminality and injustice in society.” Therefore, he said that "the Parliament may consider the following guidelines … ". In other words, what could have continued to be directions having the force of law have now become mere guidelines which the Parliament may consider.

What Vineet Narain and Justice Singhvi have done, Justice Ganguly has undone. The important part is that Vineet Narain was a 3-judge Bench judgment and, therefore, takes precedence over a concurring opinion by a judge of a two-judge Bench. In the meanwhile, however, the government spokesmen have got something to answer the news anchors.

What can be expected now?

In the course of his submissions in the court, the Attorney General pointed out a grave statistic. Out of total 319 requests for sanction before the government, in respect of 126 of such requests, sanction is awaited from the relevant authority. This means that in more than 1/3rd cases of request for prosecution in corruption cases against public servants, sanctions have not been accorded.

Justice Ganguly’s opinion may just have accorded the government the much-desired means of prevaricating on the 126 requests. The government has got a reprieve through the back-door in that it now has an opportunity to raise the time-limit issue with the parliamentary committees at its own sweet will and subject it to delays and then, in Justice Singhvi’s words, "take shelter" under it.

Media reports drew attention to the fact that the PMO was indicted. Who has been indicted and who has not?

In my view, it is irrelevant. Yes, Justice Singhvi has stated how officers of the PMO who handled Swamy’s letters took shelter of the fact that the CBI had registered the case which was pending. Justice Singhvi opined that the officers should have given Manmohan Singh both the factual and legal position – the legal position being the direction in Vineet Narain to take a decision on sanction within three or four months, as the case may be.

It does not serve any fruitful purpose trying to decipher indictments or vindications. It is more important to understand the ramifications of the concurring opinion which constitute this Order.

Firstpost.com regularly features articles from Bar And Bench.