Govt takes a U- turn in SC to defend PM in 2G case.
ATTORNEY general (AG) G.E. Vahanvati on Tuesday took a fresh line of argument before the Supreme Court to take Prime Minister Manmohan Singh out of the 2G mess but virtually ended up raising questions on the functioning and legal acumen of various government departments.
Vahanvati, who had replaced solicitor general Gopal Subramanium, argued before the apex court that there was no provision in law under which the PM could entertain a request for grant of sanction before a criminal complaint was filed in court.
This was contrary to the legal advice given to the PM by the law ministry earlier. The affidavit filed on behalf of the PM on Saturday showed the law ministry had asked him to take a decision on a request by Janata Party leader Subramanian Swamy -- seeking sanction to file a criminal case against A. Raja -- only after looking into evidence collected by the CBI.
This had led to a great embarrassment for the PM with a bench comprising Justices G.S.
Singhvi and A.K. Ganguly raising questions on his silence in the matter for months.
The affidavit revealed that the file travelled from one department to another until advice by the law ministry. In accordance with the legal advice, the request was kept pending without a decision and Swamy was informed about it.
Though the government specifically informed Swamy that his request was pending, the attorney general argued on Tuesday that sanction was required only at the stage of the court taking cognizance of an offence. There was no need for prior sanction even if a court decided to order investigation on a criminal complaint. However, the attorney general's focus on bailing out the PM created some fresh trouble for the government.
The court sought from the government the details of the number of requests for sanction and time since they have been pending. The bench sought the list after the attorney general said in his view, a request for sanction should be decided within six months.
Vahanvati further virtually conceded that the PM had wrongly forwarded the file to the department of telecommunications (DoT) for a response.
He said the sanctioning authority is not supposed to get into an inquiry to ascertain the veracity of the complaint but independently take a decision on the basis of documents annexed with it. He went on to add that even an advice by the attorney general should not be sought.
The PM, however, had sought legal advice from the law ministry in this case. Vahanvati talked of the deadline after the court sought to know if a sanctioning authority could sit on a request for sanction. Accepting the argument that a request could be made at the stage of cognizance, the court said: "What if the court decides to take cognizance and you sit over it."
With the attorney general stating that it should be decided within six months, the court decided to go for a reality check which could put the government into another round of embarrassment. Vahanvati said an affidavit in this regard would be filed within a week.
"The provision of sanction was supposed to be a shield (against malicious prosecution) but it had now become a sword against genuine complaints of corruption," the bench said.
The attorney general submitted at the outset that before going through the affidavit filed on behalf of the Prime Minister, he would deal with the question of law.
He, thereafter, submitted that Section 19 of the Prevention of Corruption Act envisaged a sanction before a court took cognizance of a criminal complaint.
This, he argued, showed that a request for sanction could be made only after filing a criminal complaint before a magistrate. He said sanction is required only when a court finds some merit in a complaint and decides to summon the accused.
Vahanvati went on to state that Swamy had not filed any complaint before a court, which was a precondition for applying for sanction.
Though the attorney general argued strongly on law, he did not explain as to why the PMO entertained Swamy's request and even sent a letter stating that his request had been kept pending. In fact, it would be difficult to justify the procedure followed by the PMO in dealing with Swamy's complaint in the backdrop of the legal contentions by the attorney general.
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