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Wednesday, Nov 03, 2004

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PREJUDICED AND POLITICALLY SUSPECT

"SATISH SHARMA'S ACTIONS were wholly arbitrary, mala fide and unconstitutional." So said a Division Bench of the Supreme Court in November 1996 in the so-called petrol pumps cases, in which the former Union Minister of Petroleum was slapped with an extraordinary fine of Rs.50 lakh for irregularly allotting petrol pumps and gas agencies to his favourites. Eight years later, in an enormous twist of irony, the ground has been cynically prepared to let Mr. Sharma off the legal hook. The blame for the state of affairs that led the CBI to seek a Delhi court's permission to close 15 cases against Mr. Sharma must be laid squarely at the door of the Central Government. It was the Home Ministry's prejudiced and politically suspect decision of refusing the investigating agency the necessary sanction to prosecute the Congress Rajya Sabha MP and close friend of the Sonia Gandhi family that has resulted in a situation where justice is in serious danger of being subverted. The Home Ministry's decision, which was ostensibly taken after consulting the Law Ministry and after "considering all factors in totality," has left the Government open to the charge that it is trying to protect Mr. Sharma from being tried in a court of law.

Under Section 197 of the Code of Criminal Procedure, 1973, and Section 19 of the Prevention of Corruption Act, 1988, no court can take cognisance of an offence against a public servant without the approval of the appropriate authority — the Central or State Government as the case may be. In the case of Mr. Sharma, the CBI had sought the Centre's permission to prosecute under the CrPC as the offences alleged to have been committed by the former Minister emerged from his "acting or purporting to act in the discharge of his official duty" [Section 197 (1)]. Such provisions in the law, which deny courts jurisdiction over offences committed by public servants without prior authorisation of the Government, have become notorious for being iniquitous and providing de facto immunity to a select class of people. Their purported object is to protect public servants from vexatious prosecution. However, as the Supreme Court observed, authorities who grant or refuse sanction to prosecute are "expected to act consistent with public interest which demand that... genuine charges and allegations should be allowed to be examined by the court" (Government of Maharashtra vs. Krishnachand Khushalchand Jagtani, AIR 1996).

It is true that in 1999 the Supreme Court reversed its 1996 judgment, which imposed exemplary damages on Mr. Sharma and ordered a CBI inquiry against him for criminal breach of trust. But this cannot be a sufficient basis to refuse to prosecute the former Minister, who was chargesheeted in 15 cases for criminal conspiracy and corruption. Over the years, delaying or denying permission for prosecution has been used frequently to undermine the autonomy of agencies such as the CBI. The investigating agency has gained a measure of independence thanks to the Supreme Court's judgment in the Vineet Narain case, which brought the CBI under the general superintendence of an autonomous Central Vigilance Commission. But in crucial respects, India's premier investigating agency remains extremely dependent on the Government. The requirement of prosecution sanction is one example. Another lies in the procedure of having chargesheets and appeals vetted by the Centre. The CBI's draft appeal against the contentious Delhi High Court judgment in the Bofors case, which acquitted all those charged with corruption and bribery in the howitzer deal, was prepared many months ago. It still awaits approval by the Centre, a delay that means that the opportunity to appeal against a controversial verdict in the country's most sensational corruption case has been probably lost.

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