Saturday, January 7, 2017

Aircel-Maxis, International Law and Judicial Restraint

A Three Judge Bench of the Supreme Court today passed this six page long order in an application filed by the Centre for Public Interest Litigation which sought directions in the Aircel-Maxis case. The order made headlines in India (Hindu, Business-Standard, NDTV, Indian Express) with extracts of the terse observations in the order being carried. Most of these are focused on the conclusions in paragraph 10 that the sale of spectrum remains stayed. As I explore in this post, the Order is extremely troubling, illegal, contrary to national and international law, and yet another instance of the White Knight complex that many people have so often written about.

What's the case about and Why was there a Petition in the Supreme Court?
Not so long ago in 2012, the corruption scandal surrounding allocation of 2-G spectrum arrived on the scene and refuses to leave. Investigations are still on-going and are linking supplementary sales of spectrum to be part of the initial scam that allegedly involved Shahid Balwa, Sanjay Chandra, A. Raja and the like. One of these linked cases concerns the sale of spectrum by Aircel to Maxis in 2006. The CBI has alleged that this sale was vitiated by corruption and has filed a chargesheet against Dayanidhi Maran (the then Minister for Communications), Aircel, Maxis, and the responsible officers of these companies. The case is currently pending at the stage of charge before the Special Court hearing 2-G Scam cases in Patiala House, New Delhi. 

The 2-G Scam petition itself was filed in 2010 and continues to be pending. This Application - filed by the Centre for Public Interest Litigation - sought directions to prevent the sale of spectrum by Aircel-Maxis that was said to be on the cards. The Application stated (as per news reports) that allowing the sale would mean the accused persons would profit despite not appearing before the courts despite summons having been issued against them [This Blog had earlier discussed the issue of summoning foreign entities here].

The Order Passed Today
The news media reports on proceedings as they happen inside court and often differ from the eventual order that is published for proceedings online. Something like this seems to have happened here as well, but not to a great extent. Naturally, all that matters is what is in the order itself. 

The Court notes the background:

3. The predicament expressed in I.A.No.82/2016, and the eventual prayer made therein, emerges on account of non-service of summons on Mr. Ananda Krishna Tatparanandam (Accused No.iv) and M/s. Maxis Communications, Berhad, Malaysia (Accused No.vii), and the other accused referred to above (Accused No.iii and vi). 

4. In so far as, the instant aspect of the matter is concerned, the factual position depicted in the reply affidavit, filed on behalf of the Central Bureau of Investigation, reveals as under : “21. That on 31.08.2016, a letter was received by the Ld. Special judge from the Attorney General's Chambers, Malaysia, dated 17.08.2016, inter alia stating that upon consideration of the facts disclosed in the Request for Assistance and further clarifications supplied by the CBI, the requirements as per the provisions under section 20(1)(f) of the Mutual Assistance in Criminal Matters Act, 2002 [Act 621] were not fulfilled, and hence the requests to serve the summons could not be acceded to.” 

So, the Malaysia-based accused persons (not Indian) had not appeared in court due to non-service of summons. In cases like this, when investigation requires processes to happen in another country, we resort to Mutual Legal Assistance Treaties. India and Malaysia have one such Treaty, and the service of summons etc. would have to comply with this in order for summons to be served. If not, the recipient country is under no obligation to enforce service of summons. The Malaysian Act of 2002 referred to is the Malaysian domestic law on how to treat requests by Treaty states for assistance in criminal matters. Section 20 specifies when assistance is to be refused by the Attorney General, and 20(1)(f) states that the request for assistance shall be refused if the Attorney General is of the opinion that "the request relates to the investigation, prosecution or punishment of a person in respect of an act or omission that, if it had occurred in Malaysia, would not have constituted an offence against the laws of Malaysia". Paragraph 4 extracted above shows that non-compliance with this provision is what prevented the service of summons rather than the accused persons wilfully avoiding the process of law. Basically, it shows that the CBI is yet to satisfy the Malaysian Attorney General's office that the acts/omissions alleged are also crimes under Malaysian law.  

In the next paragraph, the Court notes:

5. It is imperative to ensure, in our considered view, that the process of law should not be permitted to be frustrated by non-service of summons to the accused. In order to enforce the presence of accused ... we propose to restrain, earning of any revenue, by using the 2G Spectrum licenses, which were originally granted to M/s Aircel Communications ...

The Court has permitted the accused to make representations before the Special Court (paragraph 8), and has instructed the Union of India to ensure publication of this order in two leading Malaysian newspapers (paragraph 9). Starkly, the Court states that "it will not be open to any of the accused, to raise an objection with reference to any monetary loss, emerging out of the proposed order."  

And All That is Wrong With it
A non-sequitur if there ever was one. That, in short, sums up what has happened here. After all, how else can one explain the Court noting in paragraph 4 that the non-service of summons is due to a failure on part of the Union to fulfil the requirements of the Mutual Legal Assistance Treaty, and then moving on to squarely placing the blame on the accused persons for their fault of residing abroad.

The Court seems to have conflated the domestic methods of ensuring service of summons as provided under Chapter VI of the Criminal Procedure Code 1973 [Cr.P.C.] with such process as applicable under international law which are covered in Chapter VII. This is apparent with the Court suggesting publication in Malaysian newspapers as if it were dealing with an issue of proclamations for absconders under Sections 82 and 83 of the Cr.P.C. If we go a bit further and see Section 105 Cr.P.C., it provides for the specific manner in which this service of summons must happen. 

Now, someone may argue that Article 142 allows the Supreme Court to do nearly anything it wishes so why not this? Well, while I strongly resist that submission itself and argue that nothing in Article 142 allows the Court to transgress existing statutory law, that still does not justify the violation of International Law. Adopting this ad-hoc method for serving summons and processes would violate India's obligations under the Mutual Legal Assistance Treaty with Malaysia. Action taken pursuant to these orders by the Indian authorities would be open to challenge, though I am not an expert on what shape that challenge may take. 

I still cannot understand the conclusions that the Court arrives at. But if we return to the idea that the judiciary has been burdened with expectations of cleaning up the system of corruption (White Knight complex), it definitely makes sense. So what if the Executive is proving unable to comply with the law? Or, in case of the National Anthem Order, what if the Executive wants to do something but is fettered by the law. The Judiciary seems to suggest that it is willing to go ahead and change the law itself, all for the cause of Justice. One interim order at a time - but please, no final judgments.

[this post was updated on 7 January to add the portions on the Malaysian Mutual Assistance in Criminal Matters Act of 2002]

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