New Delhi, Nov 16: The Supreme Court today asked some embarrassing questions about the lengthy delay on the part of Prime Minister Manmohan Singh in taking a decision on a plea for sanction of prosecution of former Telecom Minister A Raja in the controversial 2G Spectrum allocation issue.
"Can the sanctioning authority (Prime Minister in this case) sit on the complaint," a bench of Justices G S Singhvi and A K Ganguly asked during a hearing on a petition filed by Janata Party President and former Law Minister Subramaniam Swamy, who had sought sanction for the prosecution of Raja.
"The three months time for grant of sanction laid by the Supreme Court is clear for fair and good governance," the Bench told the Solicitor General Gopal Subramanium, who was appearing for the government.
The Bench was categorical that the competent authority in the case (Prime Minister) should have acted within three months of receiving the complaint of Swamy in accordance with guidelines laid down in the Vineet Narain judgement relating to the Hawala case.
"The judgement in the Vineet Narain case has fixed certain time-limit for grant of sanction by the competent authority. It is open to the sanctioning authority to refer (application) or consult to Attorney General," the Bench said.
The court was going into the issue of delay in sanction on the complaint filed by Swam on November 29, 2008 and the case registered by the CBI against "unknown persons" on October 21, 2009 seeking to know the developments during the period.
The Bench also expressed dissatisfaction over the language used by the Prime Minister's office in his reply to the letter concerning the plea seeking prosecution of Raja.
It was informed that the first response to Swamy's letter to the Prime Minister on the issue was received on March 19, 2010 in which it was said that the plea made by him was "premature" as investigation was being carried out by the CBI.
"The comment from the highest authority, when such letter comes from such highest authority, the language should be very carefully used.
"The highest constitutional authority can consult the Attorney General. Only the highest authority can consult the Attorney General and not everybody. It is open to the sanctioning authority to refer to the AG," the Bench said adding the reply was coming not not from municipal authority.
The court said "we are examining the Constitutional and legal validity of the reply. This is what is troubling us. So you (SG) seek the record. We are adjourning the matter for Thursday."
It said the complaint filed by Swamy on November 29, 2008, was "not a vague" assertion of the alleged wrong done by the respondents including Raja.
"We want to know whether papers (of Swamy) were ever placed before the sanctioning authority," the Bench said.
Responding to the question, Subramanium said "there was no question of overlooking these papers" and it was close on the heels of these papers supplied by Swamy, the case was registered on October 21, 2009.
"So what happened between November 29, 2008 (the date on which a private complaint was made by Swamy) and October 21, 2009 when the CBI registered the case against unknown officials of Department of Telecom (DoT)," the Bench sought to know from the SG and asked him to apprise it of the developments during the period.
Swamy commenced his arguments by saying that since Raja has resigned as a telecom minister there was no need for any sanction to prosecute him nor would he be protected even if he was allocated another portfolio.
He said when he made a complaint and sought Raja's prosecution, the Prime Minister should have decided the issue on the basis of the materials supplied by him.
"He should have take a prima-facie view on the basis of my material. If he was not satisfied he would have rejected my plea," Swamy said adding that "the Prime Minister should have acted himself and should have applied his mind independently".
"He did not apply his mind independently and instead waited for more material," Swamy said when the Bench opined that the Prime Minister waited for materials which were not germane to the matter.
Countering the submissions made by Swamy, the Solicitor General said the sanctioning authority can take the reference and materials from investigating agencies for taking the decision.
However, the bench, which was annoyed over the delay on the issue, wanted to know from him "whether private citizen has a right to ask for sanction relating to corruption by a public servant".
"Supposing, I am a private person, my right to seek sanction, can it be made to depend on CBI or investigating agencies. It will be uncertain.
"Can my right be dependent on such a contingency. Whether he has a right. Whether a private citizen has to ask for sanction,? Justice Ganguly asked.
The Solicitor General said it is open for a private person to ask for sanction by corrupt public servant which can be granted on the basis of cogent material.
He said in a situation where the case is registered and investigation is carried out by the agencies, it is open for the sanctioning authority to wait till the result of the probe. Sanction can be kept on hold when the investigation is carried out.
At this point, the Bench wanted to know from the Solicitor General "what would have been the position if the CBI had not registered the case. What would have been the time-limit for grant of sanction by the competent authority".
The court, which noted that Swamy waited patiently for 11 months, observed that "for good governance there must be some time-limit for granting sanctions, if not three-months. But 11 months is too long".
Subramanium said in the present case the competent authority needed to wait as he wanted to act carefully by going through sufficient material.
"You (letter from PMO) are saying your (Swamy's) application is premature. How you are saying. When you are saying it is premature, it means your right (seeking sanction) has not yet ripened or matured. Is that the correct position," the bench said referring to the tenor of the language used in the letter in response to Swamy's plea.
"Kindly accept one position," the Bench said adding that "to say that it is premature mean that you (complainant) have no right to seek sanction".
Responding to the remarks of the Bench, the Solicitor General said "the application for sanction has not been declined but deferred".
At the fag end of the hearing, the Bench drew the attention of Subramanium towards the allegations made by Swamy in his letter to Prime Minister on spectrum allocation to Swan Telecom in which the Anil Ambani Group firm Reliance Communication has some shares.
"Swamy's complaint was not a vague assertion of the alleged wrong doings done by the respondents," the Bench said.
"Something is very interesting. Look at the complaint. This was a very specific complaint," said the Bench wondering why action was not taken by the Prime Minister.
The bench read out the allegations made by Swamy before the Prime Minister's office over 2G Spectrum allocation in which he had made reference about the dummy firm of Anil Ambani group firm ADAG.
Congress today steered clear of the Supreme Court question.
"I do not know what is the observation of the Supreme Court. Whether it is an observation or direction to the government. I have not seen the text of it.
"First the party and the government would analyse what has been said and then will decide about the response to be given. Till the entire text of what the court has said is not seen and analysed, it will be very difficult to make any comment," party spokesperson Shakeel Ahmed told reporters here.
Janta Party leader Subramaniam Swami had sought the court's intervention on the ground that his application before the Prime Minister seeking his sanction to prosecute A Raja for corruption is pending for last two years.
The party also sought to back Raja's argument for putting in his papers as Telecom Minister.
"He has himself taken the decision to resign after talking to his party's leader and has also explained that he did it to ensure smooth functioning of Parliamentary democracy. We donot find any reason to disagree with his remarks," Ahmed said.
Ahmed, however, parried questions on CAG's remarks against Raja, saying the report has been tabled in Parliament and the party will go through the constitutional process.
He also appealed to the opposition to get back to business saying "disrupting Parliament proceedings is no solution".
A senior Congress leader on the condition of anonymity said the PM's acknowledging letters written by Raja does not mean the licenses were sanctioned with his consent. PTI