Sunday, January 15, 2017

The Sahara-Birla Diaries Controversy

The Supreme Court of India recently dismissed a plea demanding a 'court-monitored investigation' into the allegations of corruption arising out of papers seized from prominent Indian business houses, given the tabloid-friendly 'Sahara-Birla Diaries' moniker. Naturally, news reports that the Petitioners treat this as a setback, stating that the Court "abdicated its constitutional responsibility" in dismissing the claims. The Wire carried an interesting piece, arguing the dismissal ignored binding precedent in Lalita Kumari [(2014) 2 SCC 1], which was decided by five judges. This is my take on the affair, as it has unfolded so far.

The Ordinary way to Begin Criminal Investigations
The Criminal Procedure Code 1973 provides a clear process for bringing information of an offence to the notice of police [Section 154(1)]. The Constitution Bench in Lalita Kumari held that the police must register an FIR on this information, if it discloses a cognizable offence. What if the police fails to do this? The Supreme Court has repeatedly stressed how the ordinary procedure itself provides sufficient remedies as well, which is what aggrieved persons must trigger before running to the High Court or Supreme Court [See here, for a recent example]. If the police do not register an FIR, the law asks the complainant to move a superior officer [Section 154(3)], and eventually petition the jurisdictionally-proper Magistrate to look into the matter [Section 156(3)].

Did the Sahara-Birla Dismissal Ignore Precedent?
Lalita Kumari is a curious case which I hope to discuss properly soon. For now, it is enough to note that besides stating that registering the FIR is mandatory, the Supreme Court also legitimised a 'Preliminary Enquiry'. According to Paragraph 120 [SCC Version] of the decision, the Enquiry is a measure to prevent the immediate dismissal of complaints. The police were tasked with double-checking whether a complaint did not disclose cognizable offences before discarding it. In all of this, the Court insisted that the quality of information cannot be judged at this stage. 

The Wire piece uses this conclusion in Lalita Kumari to argue that the Supreme Court ought to have decided differently, rather than dismissing the information as lacking any cogent material to support them. Attractive as it may seem, the argument is devoid of substance. First, the Wire piece does not engage with why the ordinary procedure was ignored to begin with. If we are talking about Lalita Kumari, where do the Petitioners show that the FIR was not registered on a complaint they filed? The second and third problems are linked, and these concern the failure to appreciate subtle differences between the Enquiry as spoken of in Lalita Kumari with a Preliminary Enquiry done by the CBI. The Wire piece does not note how Lalita Kumari expressly does not deal with a CBI investigation or Court-Monitored Investigation, which is what this case was all about. Since Lalita Kumari never came into the picture, there is no question of the Bench ignoring it here. 

The Court Monitored Investigation as a process started with another set of diaries, the 'Jain Hawala Diaries'. Then, as now, papers were found linking payments to politicians and a Writ Petition was filed in 1993 alleging inaction by the CBI [the political nature of which was noted recently on the Blog]. Only after carefully considering the matter and the allegations did the Supreme Court decide to 'monitor' the investigations. This meant the case was regularly listed, with investigating agencies providing regular updates while insulating the matter from the executive. So, one could in fact argue that the Supreme Court has upheld precedent in the 'Sahara-Birla Diaries' case by not immediately moving to a court-monitored probe. 

Conclusions - Another Arrow for Independent Investigations
There is nothing, anywhere in the law, about why some sensational claims should deviate from the ordinary procedure. Yet living in the times of the 2-G, Coal, and Black Money Scandals, many think it only natural that the non-partisan judiciary take care of such sensitive investigations. It seems to be forgotten that the Supreme Court itself in Vineet Narain [while dealing with the Jain Hawala Diaries] repeatedly emphasised on how the ad-hoc procedure it created was not ideal and in fact showed the necessity for immediate structural changes in our investigative agencies. Simply put, handling investigations ought not to be the Court's job. The dismissal of the request for a probe can be given a positive spin - the Court puts the foot down and presses for changes that India's investigative agencies so desperately require. The lamentable state of affairs is summed up nicely by the case at hand: the Writ Petition here was filed in 2015 alleging corruption surrounding the appointment of the Chief Vigilance Commissioner, head of the institution that birthed from the ashes of Vineet Narain. Lets hope the future contains fewee false dawns.

1 comment:

  1. How to contact the writer or lawyer Abhinav Sekhri for a serious matter?

    Hope to get an answer soon