The Supreme Court seems to have failed to really give a view on Subramanian Swamy's real issue against P Chidambaram

By Kartikeya Tanna



Late last week, on Friday, the Supreme Court gave its judgment dismissing all grounds against P Chidambaram in the much-awaited battle between him and Janata Party chief Subramanian Swamy.

To many of Swamy’s supporters, his relentless fight against Chidambaram culminated in some sort of an anti-climax, giving the UPA something to cheer about despite the muck it finds itself in.

Given this reprieve of sorts from the nation’s highest court, Chidambaram is now de facto leading the UPA’s defence in the Coalgate allegations postulating “zero-loss” theories (even though not using those words) and qualifying them the next day. Swamy has, in the meanwhile, vowed to fight back by filing a petition to review this judgment on the grounds that it did not address the arguments he had made.

Many supporters and sympathisers of the UPA have seen this move from Swamy as some sort of a struggle by a stubborn man. His supporters, incensed upon seeing Chidambaram go scot-free, are fully backing him. Is it his unwillingness to accept defeat that has prompted his move? Or is his move based on a genuine grievance against the Supreme Court’s half-baked judgment?

In my view, it is the latter. Whether or not Swamy’s case has any legal strength depends on the court examining his arguments and the existing case-law and pronouncing its opinion. But what when the Supreme Court does not even examine his arguments?

That is exactly what happened with Swamy’s petition against Chidambaram. Swamy was in Supreme Court appealing against the decision of Special CBI Judge OP Saini who had rejected Swamy’s plea to make Chidambaram a co-accused along with A Raja. The Supreme Court clubbed Swamy’s petition with Prashant Bhusan’s petition which asked for a CBI inquiry against Chidambaram.

In a way, this clubbing of petitions was a plea for alternative remedies: either make Chidambaram a co-accused in A Raja’s trial, or order a CBI probe.

In order to determine whether Chidambaram could be made co-accused, the Supreme Court had to assure itself of the existence of a prima facie case against Chidambaram. In simpler words, the Supreme Court must be convinced that there is some material which makes it more likely than not that Chidambaram can be guilty under the grounds alleged.

Since both petitions were clubbed, it is uncertain who argued what. Speaking to IBNLive, Swamy said that the SC gave its opinion on grounds he did not argue.

According to the Supreme Court, however, arguments made by Swamy and Bhushan led to issues of (i) criminal conspiracy with A Raja; (ii) obtaining for self or for Raja any monetary benefit by corrupt and illegal means; (iii) deliberately allowing dilution of equity by Swan and Unitech; and (iv) abusing his position as the finance minister to obtain benefit for self or anyone else.

Each issue had some element of mens rea or, in other words, a ‘guilty mind’. However, as Swamy had given periodic indications via media interviews and on his Twitter account, he was focusing on a specific category of criminal misconduct under the Prevention of Corruption Act: whether, as finance minister, Chidambaram obtained benefit for anyone else without any public interest (Section 13(1)(d)(iii) of POCA).

This ground does not contain the element of mens rea. All it requires is (a) whether anyone benefited; (b) due to a decision which was without any public interest whatsoever. Lack of public interest in the decision is the main crux of this ground.

In fact, the Supreme Court, in Para 6 of its judgment, even mentioned that this ground was one of the arguments made by Swamy. Yet, the Supreme Court did not even consider adding this ground as one of the main issues which arise for consideration. Readers may check Para 18 of the judgment which contains a list of questions for SC’s consideration. It does not contain Section 13(1)(d)(iii) at all!

Given that the Supreme Court took so much time in arriving at this judgment, how could it totally skip pronouncing its views on a ground which was purportedly Swamy’s trump card? If the Supreme Court did not find any merit in it, it should have at least given a reasoned decision rejecting it. Why ignore it altogether?

Why did the Supreme Court not consider it worthwhile to allow Swamy to complete his arguments in a case of such importance?

These nagging questions will remain unanswered unless the Supreme Court elaborately deals with them in the review petition Swamy intends to file. It is important to point out here that under Supreme Court Rules 1966, a review petition, as far as practicable, is circulated to the same judges whose decision one is seeking a review against. In all likelihood, therefore, the review petition will be filed before the same two judges who presided over this judgment. Unfortunately, however, there cannot be any oral arguments in a review petition.

Hopefully, the Supreme Court will exhaustively deal with these unanswered questions instead of ignoring the plea for a review. Swamy, and the nation, deserves an answer.

(Note: Another ground which Swamy raised in his plea both before Judge OP Saini and the Supreme Court is whether Chidambaram was guilty of breach of trust by not disclosing that Etisalat and Telenor were black-listed by the home ministry. Neither Judge OP Saini nor the Supreme Court dealt with this ground. Hopefully, the Supreme Court will answer this charge as well.)