Prevention of Corruption Act

Total Recall: How Modi Government and Election Commission Provided Safety Net for Convicted Ally

Prem Singh Tamang Golay was convicted of corruption and should have been disqualified from contesting an election for six years. But the Narendra Modi-led Union government repealed a key clause in the Representation of the People Act, allowing the BJP ally to become Sikkim’s chief minister.

New Delhi: The swiftness with which Congress’s top leader Rahul Gandhi was disqualified after his conviction in a criminal defamation case and the possibility of being disqualified from contesting an election for six years after his sentence ends is in stark contrast to how the law was recently circumvented by a regional politician to become a state chief minister – with the help of the Narendra Modi government, and also the Election Commission of India (ECI).

As per Section 8 of the Representation of the People Act, 1951, a sitting MLA, MLC or MP, if convicted for certain offences that warrant imprisonment for at least two years, shall be disqualified from the date of such a verdict from a state assembly/ parliament and shall continue to be disqualified for a further period of six years since release from jail. Therefore, he/she cannot contest an election in that period.

So, if the two-year sentence pronounced by the Surat sessions court on Rahul Gandhi comes into effect, and he fails to get a stay on it from a higher court, the Congress top dog, in all likelihood, would be barred from fighting an election for roughly eight years.

The status of the leading opposition leader was handled with unprecedented urgency by the Lok Sabha Secretariat, which announced his expulsion from parliament just a day after the sessions court’s judgment. At this point, it’s important to remember an equally unprecedented move made by the ECI as recently as October 2019 to provide a safety net to the Sikkim chief minister and an ally of the Bharatiya Janata Party (BJP), Prem Singh Tamang Golay.

Another unprecedented move, with a different outcome

In 2010, Golay, who was then a minister in the Sikkim Democratic Front (SDF) government, found himself at odds with his own government when the state vigilance department filed a case for misappropriation of Rs 9.5 lakh from the animal husbandry department. The allegation against him was that he siphoned off the sum meant to be distributed to the public for buying cows under a state government scheme. He soon left the SDF.

In December 2016, Golay was sentenced to one-year imprisonment by a trial court under the Prevention of Corruption Act, 1988. In June 2017, the Sikkim high court upheld the lower court’s judgment, thus mounting pressure on Golay to surrender himself to the law.

However, Golay went into hiding after the sessions court’s judgment. Only in August 2017 did he surrender to the district and sessions court at Sichey in Gangtok and began his one-year imprisonment at Rongyek Jail, located on the outskirts of the capital city of Gangtok.

Golay termed the case against him as ‘political vendetta’ by the SDF supremo and then chief minister Pawan Kumar Chamling. He completed his jail term in August 2018 and went on to form his own regional party, Sikkim Krantikari Morcha (SKM).

In the run-up to the 2018 state elections, Golay led the fight against 25 years of SDF rule but stayed away from contesting the polls because it was assumed Section 8 of the Representation of the People Act would disqualify him on the ground of corrupt practices.

Interestingly, by then, the BJP had dropped the SDF to cosy up to Golay’s party – simply because Chamling would not relent in giving space to the national party in the northeastern state in the form of a pre-poll alliance. Golay was willing to do the BJP’s bidding – provided he got a safety net to become chief minister if his party managed to win a majority in the 32-member assembly.

So, in a bizarre move, the SKM became a part of BJP’s North East Democratic Alliance (NEDA) while its sworn enemy, the SDF, also remained a part of it. The BJP soon entered into a pre-poll alliance with SKM. However, with the public mood against the Narendra Modi-led government’s decision to amend the Citizenship Bill, the SKM had to step out of a formal alliance.

After the counting of votes in 2018, the SKM pocketeted 17 seats in a stiff fight against Chamling’s party which grabbed 13 seats. It then asked, who would be the state chief minister, if not Golay?

SKM insiders revealed then that after receiving assurance of help from New Delhi, the SKM elected Golay as the leader of the legislative party. Soon, the governor invited him to form the government.

An angry SDF approached the Supreme Court. One of the contentions in the petition was that governor Ganga Prasad’s invitation was in violation of the Supreme Court’s 2001 verdict in the case of former Tamil Nadu chief minister J. Jayalalithaa.

What is interesting here is the role played by the Modi government in allowing Golay, and also the governor, to go against that five-judge bench order.

Pawan Kumar Chamling. Photo: PTI

ECI’s role

The Modi government, despite claims of zero tolerance towards corruption, repealed an amendment brought in by the Atal Bihari Vajpayee government in 2003 to the Representation of the People Act.

Under Section 8(1) (m) of the Representation of People’s Act (RPA), 1951, as amended by the Vajpayee government, a person convicted of an offence punishable under the PCA shall be disqualified for differing amounts depending on the sentence. If the sentence is a fine, the person is disqualified for a period of six years from the date of conviction. If the sentence is imprisonment, like in Tamang’s case, the person is to be disqualified from the date of conviction and until six years after release.

The removal of this amendment by Modi meant a crime committed under the Prevention of Corruption Act was no longer considered ‘serious’.

The Modi government, thereby, rolled back the six-year disqualification from contesting an election by a person convicted for such crimes, and the additional six years of disqualification after release.

But Golay’s crime was committed in 2010, when the Vajpayee-era amendment was in force, and his sentence was pronounced in December 2016. Had the Modi government not repealed the 2003 Amendment Act, his disqualification would have started from December 28, 2016 and ended on August 10, 2024, six years after his release from jail.

As chief minister, Golay knew he had to contest the mandatory bypoll within six months of being sworn. In other words, he would have to get elected to the Sikkim assembly by October 27, 2019 in order to retain the post. But how could be get elected if he was barred from contesting till 2024?

In July 2019, Golay filed an application with the ECI, seeking pardon from Section 8 of the Representation of the People Act under its discretionary powers. Acting on that application, the ECI gave a favourable order to Golay in October – thus clearing the decks for him to contest the election.

Interestingly, the ECI, in its seven-page order, also gave weightage to the fact that the governor, a constitutional authority, had invited him to become the chief minister, and carried out his swearing-in, which, therefore, would also imply Golay was ‘pardoned’.

Significantly, the ECI’s use of discretionary powers to let off Golay came just two days after the BJP announced a pre-poll alliance with the SKM to contest the bypolls to three assembly seats. Enthused by the ECI’s order, Golay filed his nomination papers to fight the October 21, 2019 by-elections while two other seats were left to the BJP to contest which, in turn, helped the national party increase its tally in the house.

By then, though, the BJP oversaw the defection of as many as 10 SDF MLAS, thereby not attracting action under the 10th schedule of the constitution. While the remaining SDF MLAs flipped over to Golay’s party, former chief minister Chamling remained the only presence in the opposition benches – even though just months ago, his party was just three short of the majority.

Meanwhile, the petition in the Supreme Court continues. The legal decision of whether Golay’s one-year conviction also attracts Section 8 of the Act remains.

In March 2022, a bench headed by then Chief Justice of India N.V. Ramana issued notice to Golay, and to the ECI, but there has been no progress since.

In 2019, reacting to the ECI’s decision, The Hindu had in an editorial called the move “morally wrong” and warned that it sets a “dangerous precedent”. It underlined that such a decision by a constitutional authority “may end up reversing the trend towards decriminalising politics”.

Now, the question at hand is, will the ECI also use its discretionary powers to offer Rahul Gandhi a safety net from attracting disqualification under Section 8 of the Representation of the People Act, or was Golay’s case a one-off?

ISRO Espionage Case: SC Sets Aside HC Bail to Former Police, IB Officials

‘All matters are remitted back to the HC to be decided afresh on it own merits. This court had not observed anything on merits for either of the parties,’ the bench said.

New Delhi: The Supreme Court on Friday, December 2, set aside the Kerala high court’s anticipatory bail to former police and intelligence officers in the case of the alleged framing of former ISRO scientist Nambi Narayanan in a 1994 espionage case.

The judgement came on the CBI’s appeal against the high court order granting bail to former Gujarat DGP R.B. Sreekumar, two former police officers of Kerala S. Vijayan and Thampi S. Durga Dutt, and a retired intelligence official P.S. Jayaprakash. Sreekumar was then the Deputy Director of the Intelligence Bureau.

A bench of Justices M.R. Shah and C.T. Ravikumar sent the bail applications to the high court and asked it to decide on it as early as possible and within four weeks, LiveLaw has reported.

“All these appeals allowed. Impugned orders granting anticipatory bail passed by HC are quashed and set aside. All matters are remitted back to the HC to be decided afresh on it own merits. This court had not observed anything on merits for either of the parties,” the bench said.

The top court directed the registry of the high court to notify bail applications before the bench concerned within one week from today.

“Till then by way of an interim arrangement, and without prejudice to rights, it is directed that for a period of five weeks and till the bail applications are finally decided by HC on remand, the respondents may not be arrested subject to cooperation in the investigation,” the apex court said.

Additional Solicitor General S.V. Raju appeared for the CBI and senior advocate Kapil Sibal appeared for some of the respondents, LiveLaw reports.

1994 ‘espionage’ case

The CBI has registered a case against 18 people for various offences, including criminal conspiracy, in connection with the arrest and detention of Narayanan in the espionage case.

The case, which had hit the headlines in 1994, pertained to allegations of transfer of certain confidential documents on India’s space programme to foreign countries by two scientists and four others, including two Maldivian women.

Narayanan, who was given a clean chit by the CBI, had earlier alleged that the Kerala Police had “fabricated” the case and the technology he was accused to have stolen and sold in the 1994 case did not even exist at that time.

The CBI had said the then top police officials in Kerala were responsible for Narayanan’s illegal arrest.

The SC had on September 14, 2018 appointed a three-member panel headed by its former judge D.K. Jain while directing the Kerala government to cough up Rs 50 lakh as compensation for compelling Narayanan to undergo “immense humiliation”.

The scientist was arrested when the Congress was heading the government in Kerala. The panel, after completing its investigation, submitted its report in a sealed cover to the apex court in 2021.

Terming the police action against the ex-scientist “psycho-pathological treatment”, the apex court had in 2018 said his “liberty and dignity”, basic to his human rights, were jeopardised as he was taken into custody and, eventually, despite all the glory of the past, was compelled to face “cynical abhorrence”.

HC says ‘no evidence’

The apex court had in November last year issued notice on the CBI’s plea filed in the matter.

The agency had said its probe found that some scientists were tortured and framed in the espionage case due to which the development of cryogenic engine was hit, setting back India’s space programme by almost one or two decades.

The CBI earlier alleged there was a clear indication that the accused were part of a team which had ulterior motives to torpedo the attempts of the ISRO for manufacturing the cryogenic engine.

The CBI, while giving a clean chit to the scientist, had said that Siby Mathews had left “the entire investigation to the IB, surrendering his duties” and ordered the indiscriminate arrest of the scientist and others without adequate evidence.

While granting anticipatory bail to these four accused on August 13 last year, the high court had said, “There is not even a scintilla of evidence regarding the petitioners being influenced by any foreign power so as to induce them to hatch a conspiracy to falsely implicate the scientists of the ISRO with the intention to stall the activities of the ISRO with regard to the development of the cryogenic engine.”

Also read: Explainer: The Loose Ends of the Sinister ISRO ‘Spy’ Case

It had said that unless there is specific material regarding their involvement, prima facie, it cannot be said that they were acting against the interests of the country.

LiveLaw has reported that during hearings of this case at the Supreme Court, the latter had said, “The High Court has committed certain wrongs. It has not dealt with Justice Jain committee report, individual allegations not examined. High Court should deal with individual cases individually.”

Meanwhile, the Kerala high court last year also dismissed S. Vijayan’s plea alleging that the ex-ISRO scientist influenced the CBI probe against him back then.

The Gujarat high court in September this year granted interim bail to R.B. Sreekumar in another case in which he had been arrested along with activist Teesta Setalvad for alleged fabrication of evidence in connection with the 2002 communal riots cases.

(With PTI inputs)

Delhi Court to Hear Satyendar Jain’s Plea Against ED Over ‘Leak’ of Jail Footage

Videos, purportedly showing the former Delhi minister receiving a massage in his prison cell, have been shared on social media. Opposition parties BJP and Congress have questioned Arvind Kejriwal’s silence.

New Delhi: A Delhi court will hear today, November 21, a plea moved by jailed Aam Aadmi Party minister Satyendar Jain seeking contempt proceedings against the Enforcement Directorate for allegedly leaking CCTV footage of him in jail to the media.

Special Judge Vikas Dhull on Saturday, November 19, directed the agency to file its response on Jain’s plea which he filed after videos emerged, purportedly showing Jain receiving a massage in his Tihar Jail cell and meeting several people at once in his cell.

The ED had during a bail hearing earlier accused Jain of getting “special treatment” inside the jail. The court had ordered the ED and Jain’s legal team not to leak any content of affidavits and video evidence in this regard and had taken their undertakings in the matter.

The court had refused to put any restriction on or pass any direction to the media.

Jain has accused the ED of leaking CCTV footage “despite an undertaking given in the court”.

The AAP on Saturday drew flak in the aftermath of the videos being released, with the opposition Bharatiya Janata Party and Congress demanding his sacking and questioning the “silence” of Delhi Chief Minister Arvind Kejriwal.

The opposition has also blamed the Delhi government’s Department of Delhi Prisons, which runs the Tihar Jail. In fact, Jain was earlier prison minister. The charge was handed to deputy chief minister Manish Sisodia since Jain’s arrest.

A week ago, the Tihar jail superintendent had been suspended over alleged ‘VIP treatment’ of Jain.

On November 17, Jain and two others arrested in the money laundering case based on a CBI FIR lodged against Jain in 2017 under the Prevention of Corruption Act were denied bail. AAP has maintained that Jain’s arrest is an expression of BJP’s misuse of central agencies to exact political vendetta. Jain had been the party-appointed leader in charge of the upcoming Himachal Pradesh elections.

(With PTI inputs)

Delhi Court Denies Bail to AAP Leader Satyendar Jain, Says He ‘Concealed Proceeds of Crime’

Jain is accused of having laundered money through four companies allegedly linked to him.

New Delhi: In a setback to AAP leader Satyendar Jain, a Delhi court on Thursday denied bail to him two others in a money laundering case, saying he was “prima facie” involved in concealing the “proceeds of crime”.

On the two co-accused – Vaibhav Jain and Ankush Jain – special judge Vikas Dhull said they “knowingly” assisted Jain in concealing the proceeds of crime and were “prima facie guilty” of money laundering.

The court said prima facie Jain was “actually involved in concealing the proceeds of crime by giving cash to the Kolkata-based entry operators and thereafter, bringing the cash into three companies… against the sale of shares to show that income of these three companies was untainted one.”

“By this process, the proceeds of crime to the tune of 1/3rd of Rs 4.61 crore has been laundered. Apart from that, Jain has also used the same modus operandi to convert his proceeds of crime of Rs 15 lakh by receiving accommodation entries from Kolkata-based entry operators in his company by the name of J J Ideal Estate Pvt Ltd,” the court noted.

It said that Jain had knowingly done such activity to obliterate the tracing of the source of ill-gotten money and accordingly the proceeds of crime was layered through Kolkata-based entry operators in a way that its source was difficult to decipher.

“Hence, applicant/accused Satyendar Kumar Jain has prima facie indulged in the offence of money laundering of more than Rs 1 crore,” the judge said.

He further said money laundering was a “serious economic offence”.

“Hence, Jain is not entitled to the benefit of bail…Hence, application of Jain is dismissed,” the judge said.

Also read: Delhi Court Stays Satyendar Jain PMLA Trial After ED Plea for Transfer of Judge

The judge further said whether Jain was the beneficial owner of the three accused companies or not, or whether there was any shareholding in the said companies, was not germane for calculating the proceeds of crime or for finding out his involvement in the offence.

“The money which had come into the account of three companies during the check period was not the income of the companies arising from any lawful business but in reality the same was the accommodation entries obtained by Jain and other co-accused persons by providing cash to the Kolkata-based entry operators,” he said.

The amount lying in the accounts of these three companies was in fact the amount belonging to Jain and co-accused Vaibhav Jain and Ankush Jain, the court noted.

It observed that the cash which was provided by Jain to the two co accused was to the tune of Rs 4.61 crore during the check period.

The court said that the amount of Rs 4.61 crore was not notional or assumptive but was established on record by the statement of two Kolkata-based entry operator.

The federal agency had arrested the accused in the money laundering case based on a CBI FIR lodged against Jain in 2017 under the Prevention of Corruption Act.

Jain is accused of having laundered money through four companies allegedly linked to him.

Recently, the court also took cognisance of the prosecution complaint (charge sheet) filed by the ED against Jain, his wife and eight others, including the four firms, in connection with the money laundering case.

(PTI)

How Will EC Justify Hemant Soren’s Removal, When it Once Argued for Golay to Remain CM?

Reports quoting unnamed sources say the ECI has zeroed in on the Jharkhand CM’s disqualification. A few years ago, the same body had let the Sikkim CM remain in his post despite a corruption charge.

New Delhi: Jharkhand plunged into turmoil on August 25 with the circulation of news quoting ‘sources’ in the Election Commission of India, who said that the poll body had informed state governor Ramesh Bais of its decision in favour of disqualifying current chief minister Hemant Soren as an MLA in an office-of-profit case.

Bais had forwarded to the ECI a memorandum submitted to him by the Jharkhand unit of the Bharatiya Janata Party in February. Through that memorandum, BJP had sought Soren’s disqualification under Article 9A of the Representation of the People Act, 1955. The demand hinged on the argument that while he was minister of mining, Soren had profited from the office by issuing to himself a stone quarry contract. By doing this, he had misused his position in public office, BJP said.

As per media reports, the ECI’s response to the governor’s communication in favour of Soren’s disqualification has come after a series of hearings were held on the matter. The ECI also issued a notice to the Jharkhand chief minister, say the reports. The hearings concluded on August 18.

With the August 25 news break on the ECI’s purported decision – coupled with the fact that governor Bais is currently on a personal visit to Delhi where he is expected to meet top BJP functionaries – Soren’s party, the Jharkhand Mukti Morcha is expecting the worse. JMM is stated to be considering moving the Supreme Court against the Commission’s decision in case Soren loses his assembly seat in coming days.

File photo of Jharkhand chief minister Hemant Soren. Photo: HemantSorenJMM/Facebook

The ECI’s grounds for Soren’s disqualification in the case – when made officially public – will throw more light on the matter. Political observers of the world’s largest democracy, or what Prime Minister Narendra Modi recently called the ‘mother of democracy’, however, have cause for alarm.

The ECI’s decision in favour of BJP’s Jharkhand unit has come at a time when the national party with its government at the Union, is making all efforts to topple the Soren government. This includes Enforcement Directorate raids too.

Jharkhand’s developments stoke a growing fear in the Modi era – of the compromise in favour of BJP of the key institutions that make a democracy vibrant. While delving into the causes behind this significant fear, a number of questions arise:

Have any of the ECI’s recent decisions on disqualifying a chief minister gone on to favour the ruling Modi-led BJP in a state?
What precedence lies before the EC for its use of discretionary powers under Section 11 of the Representation of Peoples’ Act, 1951?
Has the Supreme Court showed any sign of intervention when such a matter has risen and legal directive has been sought?

ECI’s recent decision on a chief minister’s disqualification

Prior to taking up Jharkhand CM Soren’s disqualification matter, the ECI had dealt with a plea by Sikkim chief minister Prem Singh Tamang ‘Golay’, asking that he be allowed to remain in the post by contesting the by-polls in October 2019.

The ECI, on September 29, 2019, had acted in Golay’s favour. The seven-page order, issued during the tenure of the then chief election commissioner Sunil Arora, who is seen close to the Modi government, is worth returning to.

One of the arguments given by Arora-led ECI in Golay’s favour hinged on the fact that the Sikkim chief minister, even while leading his party, the Sikkim Krantikari Morcha (SKM) – an alliance partner of the BJP’s North East Democratic Front (NEDA) – in the assembly polls in April 2019, didn’t contest the election himself.

Sikkim chief minister Prem Singh Tamang ‘Golay’ (centre). Photo: Twitter/@KrantiSikkim

In the run-up to those state elections, the party in power then, the Sikkim Democratic Front (SDF), had amplified the call about Golay not being qualified to contest elections for public office as he was found guilty in a corruption case in 2016 by a trial court under the Prevention of Corruption Act, 1988.

Golay had ended up serving a year-long jail term from August 2017 after the Sikkim high court, and thereafter the Supreme Court, upheld the trial court’s order. In other words, he was convicted in a corruption case. The ECI reasoned that since Golay only filed his nomination papers after seeking the Commission’s permission, his action was permissible. In other words, he was a good egg since he followed the norm.

Another argument made in favour of Golay by the ECI was that even if he was jailed in a corruption case, “his party under his leadership has been given the mandate of the people” in the 2019 elections. SKM had pocketed 17 of the 30 seats up for grabs then in the 32-member assembly of Sikkim (the remaining two are nominated seats). In other words, he has public approval to contest the polls himself, the ECI reasoned.

However, the mother of all arguments that seemed to have swung the matter in favour of Golay was a decision the Modi government took in 2018 – the amendment to the Prevention of Corruption Act, 1988.

The amendment was brought in by the Modi government by removing entirely an Atal Bihari Vajpayee-era amendment to the Act in 2003.

Thus, even if a person contested an election after committing a crime under the Prevention of Corruption Act, or terror acts under the Terrorist and Disruptive Activities (Prevention) Act, 1987, or the insult of the national flag or constitution of India, the Modi government considered it a non serious matter.

In effect, it rolled back the enhanced disqualification period of six years (from the earlier two years) brought in by the Vajpayee government after a candidate’s release from jail. Thus, the Modi era amendment to allow anyone to contest an election even though she is found to be guilty of corruption helped Golay to remain in the chief minister’s post in Sikkim. The EC had also made the contention in favour of Golay because he was called by the state governor to form the government by dint of the mandate.

The EC’s decision helped the BJP remain a part of a state government that is led by its alliance partner. Compelled by the possibility of the Golay government’s stability, several opposition SDF MLAs have since moved to the BJP – helping it make further inroads in the state assembly through the back door.

Precedence cited by ECI in Golay decision

In October 2019, when this correspondent had asked former chief election commissioner T.K. Krishnamurthi about the Arora-era decision made in favour of Golay, he had categorically stated that the ECI had always taken the matter of corruption very seriously. “I didn’t come across any such case during my tenure but we were always vigilant about not allowing a person convicted of corruption to contest an election.”

Also read: EC’s Decision to Allow Sikkim CM to Contest By-Polls Will Help the BJP. Here’s How.

The Arora-headed ECI’s seven-page decision on Golay had also made it clear that such a matter had come rarely before the Commission. That order particularly cited two instances, both murder convicts, whose disqualification was lifted by ECI under Section 11 of the Representation of People’s Act, 1955.

While one case was related to Communist Party of India (CPI) leader from Uttar Pradesh, Shyam Narain Tiwari, in 1977, the other also from UP, concerned Mitrasen Yadav, who also started with the CPI and later moved to Samajwadi Party.

Mitrasen Yadav. Photo: CC BY-SA 4.0

Unlike in Golay’s case, in both these instances, the UP government had remitted their jail terms – thus facilitating their release from jail. In Tiwari’s case, while the High Court of Judicature in Allahabad had upheld the trial court’s order of death sentence to him for committing murder, the Supreme Court, hearing a plea by Tiwari, had commuted it to life imprisonment.

The UP government’s remission decision allowed him to walk free and also contest the 1977 assembly elections successfully. Citing the verdict of the electorate in his favour, and that the murder was a case of ‘class conflict’ in Tiwari’s village, the ECI lifted his disqualification in 1977, thereby allowing him to remain in office.

In Yadav’s case, of double murder and life imprisonment, the candidate had undergone disqualification for four years and seven months after the UP government remitted his conviction. While Tiwari contested elections without approaching the Commission, Yadav did, which the ECI counted in his favour as there were only five more months left for his disqualification tenure to forfeit.

Citing these two cases, the ECI, in 2019, had justified its order in favour of Golay thus:

“It is pertinent to note that the present applicant (Golay) neither approached this Commission to seek removal of his disqualification nor filed his nomination paper at the time of the general elections and the legislative assembly of Sikkim, 2019. He has, in fact, approached this Commission only when the elected representatives of his party, commanding a clear majority in the assembly of Sikkim, posed their faith in his leadership and when the governor, in recognition of the same, invited him to form government.”

To further back it up, the ECI stated that Tiwari was allowed to remain an MLA even though he had contested the elections without seeking permission from the ECI because of a public mandate in his favour and in this case, Golay didn’t even contest the polls.

Through this interpretation, the ECI seemed to have held that corruption while in public office is not such a heinous crime if a candidate can win in the election or lead a party that gets majority seats.

In an editorial on October 1, 2019, The Hindu had called the ECI’s move “morally wrong” and said it set a “dangerous precedent”.

Now, if the ECI has agreed to disqualify Soren at BJP’s behest on the ground that a legislator was misusing public office for profit (in other words, corruption), it will be interesting to note what its arguments are since the Golay episode. Golay was convicted for siphoning off Rs. 9.5 lakh, also as a minister, of animal husbandry. The funds were meant for public distribution to buy cows as part of a state government scheme.

SC’s intervention in a CM disqualification case

Soon after the ECI’s order in favour of Golay, SDF leader J.D. Dharnal filed a petition in the Supreme Court challenging the ECI’s stand. His contention was a 2014 Supreme Court order disqualifying former Tamil Nadu chief minister, late J. Jayalalithaa, from contesting polls for 10 years due to her conviction in a series of corruption cases. The order was in tandem with the Prevention of Corruption Act as amended by the Vajpayee government in 2003.

Jayalalithaa thus became the first state chief minister to be disqualified for conviction in a corruption case by the Supreme Court. Upholding the moral code of society, the top court, in 2013, had declared unconstitutional the three-month immunity granted to MPs and MLAs to file an appeal for a stay in a higher court while remaining in office.

In Golay’s case, the two-judge apex court bench led by Chief Justice N.V. Ramana had issued notice on March 22 to Golay as the candidate in question, the Union government, the ECI and the government of Sikkim. The parties were to submit their replies in an affidavit to the bench within six weeks. In other words, by May 3, 2022.

On being contacted, Dharnal, the petitioner, told The Wire from Gangtok, “The SC is yet to hear the matter since then. Even though the court had asked for replies within six weeks, only the ECI and the state of Sikkim replied. The Central government and Golay are yet to submit their affidavits.”

Dharnal added, “I have been contacting my lawyers in Delhi almost on a daily basis since May, asking them when the Supreme Court will have the next hearing.”

‘Formed to Shield Corrupt Politicians, Weaken Lokayukta’: Karnataka HC Abolishes ACB

The HC’s decision comes a month after a judge of the same high court, Justice H.P. Sandesh, said that he had been threatened with transfer for hearing a graft case being handled by the Anti-Corruption Bureau.

New Delhi: The Karnataka high court abolished the state’s Anti-Corruption Bureau on August 11 with a scathing judgment in which it noted that the body was built to weaken the Lokayukta and shield corrupt ministers and politicians.

A division bench of Justice B. Veerappa and Justice K.S. Hemalekha gave the judgment after hearing a petition challenging the ACB’s formation and the March 16, 2016, government order withdrawing the power of the Lokayukta police to register and investigate cases under the Prevention of Corruption Act.

The two 2016 notifications of the government were challenged by various petitioners, including the Advocates Association, Bengaluru, Chidananda Urs and the Samaja Parivartana Samudaya.

“The very constitution of ACB by the government is to shield the corrupt politicians, ministers, and the officers from the watchful eyes of the Lokayukta and that government is weakening the institution of Lokayukta to protect these persons from prosecution, inter alia under the provisions of the PC Act,” the judgment said, according to Bar and Bench.

Karnataka was ruled by the Congress under Siddaramaiah at that time.

The high court has quashed the March 14, 2016, order of the then state government, forming the Anti-Corruption Bureau (ACB) and shifted the cases pending before the ACB to the Lokayukta. Staff of the ACB will be absorbed in the Lokayukta, it directed.

The high court also directed the government to appoint competent persons as Lokayukta and Upa-Lokayukta.

“Absolutely there is no independent application of mind by the state government before passing the impugned executive order and the same is based only on the recommendation made by the DG & IG, thereby the executive order passed by the state government cannot be sustained,” the judgment said.

“The formation of the ACB through an ‘executive order’ is not justified and constitutional,” the judgement said.

The court, while adding that action taken by the ACB so far would stand, did observe that the ACB had not registered any criminal cases against ministers, MPs, MLAs or MLCs and had only registered a few cases against some authorities, according to Bar and Bench‘s report.

The court’s decision comes a month after a judge of the same high court, Justice H.P. Sandesh had said that he was threatened with transfer for hearing a corruption case being handled by the ACB. Justice Sandesh told the ACB’s counsel, “Your ADGP is so powerful,” that another high court judge had also spoken to him of having received threats of transfer.

On July 11, Justice Sandesh issued a written order recording the same. Justice Sandesh had also passed directions to the ACB to produce all closure reports filed since the inception of the ACB.

The Supreme Court eventually stayed some of Justice Sandesh’s directions.

Bullet Train Project Chief Sacked Amid Allegations of Corruption

The official’s termination came after a Lokpal court directed the CBI to probe allegations against him of the embezzlement of crores of government funds and ‘quid pro quo’ deals with a private firm.

New Delhi: Satish Agnihotri, managing director of the National High Speed Rail Corporation Limited (NHSRCL) has been dismissed from his post following allegations of past financial impropriety and corruption.

The Railways Board, in a letter to the NHSRCL on Thursday, July 7, notified the termination of Agnihotri’s office and that he will be relieved “with immediate effect”, the Indian Express reported.

Director of projects at the NHSRCL, Rajendra Prasad, had been given charge of the post for three months.

While the Railways’ order did not cite specific allegations against Agnihotri, one month prior, on June 3, a Lokpal court had directed the Central Bureau of Investigation to investigate charges of corruption against him, including misappropriation and embezzlement of crores of government funds and a quid pro quo deal with a private firm.

The NHSRCL is a joint venture between the Union government and the government of the respective state in which a project is being undertaken. Its projects include the touted Mumbai-Ahmedabad bullet train project, expected to be completed by 2028.

Also read: Bullet Train Project Acquires 60% Land but Unlikely to Meet 2023 Deadline

The charges have been levied against Agnihotri for alleged acts during his tenure as chairman and managing director of the Rail Vikas Nigam Limited (RVNL), a public sector unit of the railways ministry.

Agnihotri was with the RVNL from 2010-2018, after which he retired. Thereafter, in July, 2021, he was called out of retirement and appointed managing director of the NHSRCL. However, within months of his appointment, on September 30, a complaint was lodged against him and another RVNL official at a Lokpal court, alleging the above-mentioned financial impropriety.

The complaint alleged that Agnihotri and the other official had “misused their official position and diverted Rs 1,100 crore in an unauthorised manner to Krishnapatnam Rail Company Limited (KRCL), a private company, out of the funds received from the Ministry of Railways,” the newspaper quoted the complaint as saying.

Importantly, the KRCL is owned by the Navayuga Engineering Company Limited (NECL), in which the RVNL, too, has a stake.

Further, Agnihotri was alleged to have awarded valuable, multi-thousand crore contracts to the NECL in a quid pro quo arrangement wherein he was made the CEO of the company after his retirement from the RVNL in 2018, without waiting for the stipulated ‘cool-off’ period of one year. The complaint also alleged that the company allotted him a house in Delhi and also awarded his daughter a job at the company in return for the contracts he awarded.

Apart from his alleged dealings with the NECL, Agnihotri was accused of having embezzled government funds by manipulating ‘Performance Related Pay’ metrics, such as by setting easy targets for PSUs to hit and securing an ‘outstanding’ rating to maximise the benefits under PRP.

In light of this complaint, on June 3, the Lokpal court directed the CBI to investigate the allegations against Agnihotri in order to ascertain whether or not any offences are made out under the Prevention of Corruption Act, 1988.

The court gave the investigative agency six months to submit its probe report.

Further, the division bench asked the Department of Public Enterprises to reevaluate the Performance Related Pay police for PSUs when work is nominated to them from government ministries and departments.

Debate: Ex-Judges May Set Up Mediation Centres But Serving Judges Doing So Violate Code of Ethics

The Prevention of Corruption Act penalises public servants when they accept a property without consideration or inadequate consideration from persons with whom they have or are likely to have dealings in their official capacity.

To read K. Kannan’s piece, to which Sriram Panchu has responded, click here.

On June 13, 2022, The Wire carried my article titled, ‘Thanks to Our Judges, Darkness Now Clouds India’s Mediation Playing Field’ wherein I spoke about unhealthy practices manifesting themselves in different ways – of judges using their judicial office to benefit former colleagues, or themselves, by way of post-retirement benefits.

In response, a piece was published in Live Law on June 22, titled, ‘What The Dark Clouds Bring – Just Not Storm But Rain!’, written by K. Kannan. Mr. Kannan is a senior advocate and a former Judge of the Punjab and Haryana high court (he is one of the very few former judges who prefers to drop the prefix.)

He has been much admired for his achievements both as a lawyer and a judge, and has been a valued friend and a trusted colleague for many years. Occasionally though, friends finds themselves on two sides of a divide. This provides an occasion to reaffirm respect, to clarify, to modify where necessary, and to affirm boundaries that need to be marked. All these I propose to do.

Mr. Kannan’s piece talks about the virtues of setting up a mediation centre with world-class infrastructure with the leadership and participation of the Chief Justice of India and Judges of the Supreme Court on the Governing Council. He mentions other instances, such as the International Centre for Alternative Dispute Resolution (ICADR) in Delhi and the Delhi International Arbitration Centre, where the Chief Justice of India and Chief Justice of Delhi high court, respectively, are patrons.

“What then, is wrong,” he asks, “with the current Chief Justice of India, N.V. Ramana, setting up the International Arbitration and Mediation Centre (IAMC) in Hyderabad?”

His question, itself, provides the answer. There is no problem if the Supreme Court, as an official institution, creates a mediation initiative for the promotion of the mediation and institutional activities connected therein, and makes it broad-based with senior officials from the court and government, senior mediation practitioners and Bar representatives. Indeed, such a step would be welcome.

The problem arises, as it has done in this case, when three individual judges have got together to form an organisation of their own accord, not in a representative capacity for the court, nor in any other official capacity. The top court has not sanctioned any such institution.

The IAMC is controlled not by the court, but by these three judges and others who they have chosen to be with them. That is the big, crucial difference between an official body, institutionally managed in ex officio capacity by current serving officers on one hand, and on the other, an attempt under the guise of officialdom to start a private, self-controlled initiative that functions like a closed shop and is under the control, in perpetuity, of these judges, even after they have demitted office.

This is a masquerade and let us be blunt about it. This is similar to what H.R. Bhardwaj did when he started the ICADR in 1995. In the nomenclature of the Governing Council, he put ‘Dr. H R Bharadwaj, Union Minister for Law & Justice’ instead of ‘Union Minister for Law & Justice’. By this one device, he managed to assert successfully for many years that even after he demitted office as a Union minister, he continued to be the president of the ICADR and continued to avail of official patronage. It was only recently, after much effort, that this privatisation was put an end to, and the government took control of the institution.

The other question that Mr. Kannan asks is: what is wrong with judges setting up a mediation centre? Nothing, is the short answer, provided you do so after retirement. Everything, is the short answer, when you try and do it during the tenure of your office as a judge.

Kannan does not refer to the Restatement of Values of Judicial Life, authored by Chief Justice J.S. Verma, to which I made reference in my article. Perhaps just as well, because he would have found five uncomfortable points there which militate against the view that he now espouses.

While you are a judge, you must confine yourself to judging and not foray into activities which bring you into dealings with politicians. Nor must you run commercial operations.

While in this vein, why is Kannan not talking about the extraordinary amount of property that the government of Telangana has bestowed upon this Trust? He does not dispute the valuation of 4 acres of land in Hyderabad’s financial district, which is estimated as being upwards of Rs 250 crore. He does not dispute the provision of 25,000 sq. ft. of prime commercial built-up space made available to this Trust by the state government. A Trust, termed as public charitable but a private body all the same, is not an official body of any organ of the State. Judges have been impeached for less.

Attention has also been drawn in forums to the application of the provisions of the Prevention of Corruption Act, 1988, especially Section 11, to this transaction. The Section penalises public servants when they accept property without a consideration or inadequate consideration from persons with whom they have or are likely to have dealings in their official capacity. Read judges, governments, and politicians as actors in the scenario of the Section.

Also read: While in Session: Analysing the Prevention of Corruption (Amendment) Bill

Kannan goes on to ask what is wrong if this mediation initiative is into resolving commercial disputes for a fee. In that one question, if the answer is in the negative, he has destroyed the mediation movement in India.

If sitting judges can create commercial mediation centres while in office, is there any hope for this practice as a profession by the thousands of lawyer mediators and mediators from other backgrounds? Will not judges, who are so minded, quickly move to monopolise the work, rewards and gains if they are allowed to do so?

I am not pitching for pro bono mediation as the mainstay; I work tirelessly to promote mediation as a full-fledged professional practice, and it is my genuine fear and apprehension that such judicial take-overs will destroy this prospect.

Kannan also talks about my being a beneficiary of a referral through the IAMC as though this has anything to do with the issue. I was appointed as a mediator by the IAMC, although I will not describe myself as a beneficiary (no professional should). In that case, the National Company Law Tribunal (NCLT) had made the reference to the IAMC as, no doubt, it was told to do. The IAMC then offered the parties the choice of some mediators from its panel, I am not a member of the panel, and my name was not offered.

I am given to understand that the parties told the IAMC that being unfamiliar with the mediation background of the panel, they would want to interview them before deciding whether to accept them or not. They, however, also told IAMC that if it approached me to be the mediator, there would be no need for an interview because they were well aware of my experience. The IAMC adopted the latter course and requested me to serve as the mediator. I accepted and I am continuing with the assignment.

I must place on record my appreciation for the competence and the value that the IAMC case manager has brought to the mediation which has been of considerable assistance to me.

Kannan further states that only two cases have been referred to the IAMC by the NCLT, Hyderabad, and thereby gives the impression that this body has very little work. This does not correspond to the IAMC’s first quarterly report featured in BW Legal World.

“In this short timeframe, IAMC, Hyderabad has been fortunate to administer a variety of disputes for an aggregate value of approximately USD 400 million, covering a wide spectrum of matters from the energy sector, real estate to family disputes,” the report reads.

The highlights of the BW Legal World report include, “Twenty-two matters (including a batch of matters) have been referred to IAMC, Hyderabad by various courts and tribunals across the country, including two matters from the Supreme Court”; and “The Centre is poised to continue its growth in a new four-acre space in pursuit of its vision and mission, the foundation for which was laid by the honourable Chief Justice of India on March 12,2022”.

Also read: Chief Justice N.V. Ramana Must Finish What He Has Begun

In the beginning of his article, Kannan talked about the need for me to cross-check facts, and I would administer the same caution to him here.

It appears that the current Chief Justice of India has been promoting his institution internationally. On June 21, in his inaugural address delivered at the annual meet of Indo-German Chamber of Commerce on the topic of ‘Arbitration in a Globalised World – The Indian Experience’ at Dortmund, Germany, CJI Ramana is reported to have said that it was at the behest of the ‘Chief Justice of India’ that the International Arbitration and Mediation Centre was set up in Hyderabad.

This is a misrepresentation of facts. This is not under the aegis of the CJI; it is under the aegis of the Sri N.V. Ramana, who happens to be the current CJI. Once again, let us make it clear that the composition of the Council is not ex officio, not institutional, not official, but a set of individuals who currently hold office and will continue to run the show even after demitting office.

If Mr. Kannan takes exception to my saying that the IAMC should be shut down, I have no problem modifying my words. Let there be a full scope exit of the current office bearers, a full entry of ex officio serving senior judges, representatives of the government as well as the Bar, and mediators. Let the institution focus on the development and promotion of mediation and institutional activities for which there is much work to be done, without getting into the commercial aspects, which no official body should do.

If such is to be the case, then I will say that it was ill begun and wrongly run, but the wrong may yet be undone.

To read K. Kannan’s piece, to which Sriram Panchu has responded, click here.

This article was first published on Live Law.

Sriram Panchu is a Senior Advocate and Mediator

Maharashtra: Anil Deshmukh Given Clean Chit by Chandiwal Commission in Corruption Case

The commission’s decision, however, is unlikely to have any bearing on the probe into the matter by the CBI and the ED.

New Delhi: The Justice K.U. Chandiwal Commission, set up to probe allegations of corruption levelled against former Maharashtra home minister Anil Deshmukh by former Mumbai police commissioner Parambir Singh, has given Deshmukh a “clean chit”, the Free Press Journal reported.

On Tuesday, April 26, the commission submitted its report on the probe to Maharashtra chief minister Uddhav Thackeray and home minister Dilip Walse Patil, which was 201 pages long and included 1,400 pages of annexures.

Retired Justice of the Bombay high court Chandiwal was appointed to lead the probe on March 30 last year after Singh, in a letter addressed to the chief minister and other high-ranking officials, accused Deshmukh of running an extortion racket wherein he asked police officials to collect Rs 100 crore from bar and restaurant owners every month.

Singh’s allegations in the letter were reportedly made on the basis of statements by the then assistant commissioner of police Sanjay Patil and then assistant police inspector Sachin Waze.

According to a senior home ministry official who spoke to the Free Press Journal, Singh submitted no evidence throughout the course of the probe to substantiate his allegations.

According to Hindustan Times, the commission was required to look into three things: whether Singh’s letter contained any proof that Deshmukh or any police officer participated in the alleged corruption; whether Singh’s allegations of messages from Patil and Waze have any truth to them; and whether the matter warranted investigation by the appropriate agency.

Also read: The Case Against Anil Deshmukh: Here’s What We Know So Far

An investigation by the Central Bureau of Investigation (CBI) has been running alongside the Chandiwal commission’s probe and is unlikely to be affected by the recent ‘clean chit’ decision.

The CBI was directed by the Bombay high court to open an investigation into the matter in April last year, after which Nationalist Congress Party (NCP) leader Deshmukh resigned from his post.

On April 25, the CBI registered a first information report (FIR) against Deshmukh under sections of the Indian Penal Code (IPC) as well as the Prevention of Corruption Act. However, he was not immediately arrested.

Deshmukh was arrested by the Enforcement Directorate (ED) in November last year after a 12-hour interrogation and was charged under the Prevention of Money Laundering Act (PMLA). He was then sent to 14-day judicial remand. He was then lodged in Arthur Road jail, where he remained until April this year.

In April, the CBI took custody of Deshmukh for additional questioning and had already had Waze and two of Deshmukh’s aides, Kundan Shinde and Sanjeev Palande, in its custody.

In Its Biggest Bank Fraud Case, CBI Books ABG Shipyard for Cheating Over Rs 22,842 Crore

The company was sanctioned credit facilities from 28 banks and financial institutions led by ICICI Bank with the SBI having exposure of Rs 2468.51 crore, the officials said.

New Delhi: In its biggest bank fraud case, the Central Bureau of Investigation (CBI) has booked ABG Shipyard Ltd and its former chairman and managing director Rishi Kamlesh Agarwal along with others for allegedly cheating a consortium of banks led by the State Bank of India of over Rs 22,842 crore, officials said on Saturday.

Besides Agarwal, the agency has also named the then executive director Santhanam Muthaswamy, directors Ashwini Kumar, Sushil Kumar Agarwal and Ravi Vimal Nevetia and another company ABG International Pvt Ltd for alleged offences of criminal conspiracy, cheating, criminal breach of trust and abuse of official position under the IPC and the Prevention of Corruption Act, they said.

“Searches were conducted on Saturday at 13 locations in the premises of accused including private company, directors at Surat, Bharuch, Mumbai, Pune etc which led to recovery of incriminating documents,” CBI said in a statement.

The bank had first filed a complaint on November 8, 2019 on which the CBI had sought some clarifications on March 12, 2020.

The bank filed a fresh complaint in August that year. After “scrutinising” for over one and a half years, the CBI acted on the complaint filing an FIR on February 7.

The company was sanctioned credit facilities from 28 banks and financial institutions led by ICICI Bank with the SBI having exposure of Rs 2468.51 crore, the officials said.

The Forensic Audit by Ernst and Young has shown that between 2012-17, the accused colluded together and committed illegal activities including diversion of funds, misappropriation and criminal breach of trust, they said.

It is the biggest bank fraud case registered by the CBI.

Funds were used for purposes other than for which they were released by banks, it said.

The loan account was declared as non-performing asset (NPA) in July 2016 and fraud in 2019.

In its complaint, the State Bank of India said ABG Shipyard Ltd (ABGSL) is the flagship company of the ABG Group which engaged in the business of ship building and ship-repair.

The ABGSL being a major player in Indian ship building industry operates from shipvards are located at Dahej and Surat in Gujarat with capacity to build vessels up to 18,000 dead weight tonnage (DWT) at Surat Shipyard and 1,20,000 dead weight tonnage (DWT) at Dahej Shipyard.

The company has constructed over 165 vessels (including 46 for export market) in the last 16 vears including specialized vessels like the newsprint carriers. self-discharging and loading bulk cement carriers, floating cranes etc with class approval of all international classification societies like Lloyds, American Bureau of Shipping. Bureau Veritas, IRS, DNV, the complaint said.

“Global crisis has impacted the shipping industry due to fall in commodity demand and prices and subsequent fall in cargo demand. The cancellation of contracts for few ships and vessels resulted in piling up of inventory. This has resulted in paucity of working capital and caused significant increase in the operating cycle. thereby aggravating the liquidity problem and financial problem,” the complaint said.

The SBI said there was no demand of commercial vessels as the industry was going through downturn even in 2015 which was further aggravated due to lack of defence orders making it difficult for the company to maintain repayment schedule, it said.

“The company has been referred to NCLT, Ahmedabad, by ICICI Bank for CIRP,” it said.