raviforjustice: JUDICIAL PERFIDIES-10

In any case before a judge, there are two parties, the petitioner and the respondent or the prosecutor and the defendant. And both parties will have their own facts, laws, rules and case laws in support of their cases. So a judge has a lot of discretion, and the onerous responsibility that goes with it, to come to a fair decision. And like all human qualities, discretion comes with ease and responsibility poses a burden. Under the circumstances, it would have been only logical to ensure systemic checks to ensure that discretions are not misused and responsibility is carried scrupulously. Unfortunately, as we have seen, our Constitution has not only failed to do it, it has gone overboard to protect those who could misuse such discretion due to various reasons, including corruption. At least whenever I see decisions that do not appeal to my sense of logic and fairness, I always suspect corruption.

Let me present the case of Capt Satish Sharma , who had been mired in controversies during his tenure as the Minister for Petroleum in the Union Cabinet, between 1993 and 1996.

One of the scams, fairly well reported, was the petrol pump allotment scam. Here is the scam in the words of three apex court judgments…

2 judge bench in Common Cause A Regd Society Vs. Union of India and Ors, on 25/09/96:

This Court in The Centre for Public Interest Litigation case (supra) has endorsed the guidelines submitted by the Attorney General for allotment of petrol pumps, gas agencies etc. The Court in that case did not have before it the actual manner of exercise of discretion by the Minister in the allotment of pups/agencies. The allotment orders which are now before the Court clearly indicate that leaving the authorities to enjoy absolute discretion even within the guidelines would inevitably lead to gross violation of the constitutional norms when the persons for allotment are picked up arbitrarily and discriminatory.

We, therefore, hold and direct as under:

1. The orders - reproduced in earlier part of this judgment - allotting petrol pumps to the above mentioned fifteen persons are hereby quashed.

2. The allocation, allotment of the petrol pumps/retail outlet dealerships by the Government of India, Indian Oil Corporation Ltd. or any other corporation in names of the above said fifteen persons shall stand cancelled with immediate effect.

Above bench, on 04/11/1996:

The petrol pumps - public property - have been doled out in a wholly arbitrary manner." ..... "All these allotments are wholly arbitrary nepotistic and are motivated by extraneous consideration."

“…we direct Capt. Satish Sharma to pay a sum of Rs. 50 lac as exemplary damages to the Government Exchequer. Since the property with which Capt. Sharma was dealing was public property, the Government which is "by the people" has to be compensated.”

3 judge bench in Common Cause A Regd Society Vs. Union of India and Ors, on 03/08/1999:

"Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality."

We have already held above that in the judgment under review, there are errors apparent on the face of the record, which has resulted in serious miscarriage of justice. It is for this reason only that we have proceeded to exercise the power of review.

For the reasons stated above, the application for Review is allowed. The direction for payment of Rs.50 lakhs as exemplary damages as also the direction for a case being registered by the C.B.I. against the petitioner for Criminal Breach of Trust and investigation by them into that offence and the further direction to investigate whether petitioner has committed any other offence are recalled. The amount of Rs.50 lakhs, if paid or deposited by the petitioner with the Union of India, shall be refunded to him. All applications for impleadment or intervention filed on behalf of allottees are rejected.

Now, here are some reports from the media.

A report in India Today (‘Ex-petroleum minister Satish Sharma and his beneficiaries come under CBI scrutiny’, April 15, 1997, updated April 26, 2013; https://www.indiatoday.in/magazine/nation/story/19970415-ex-petroleum-minister-satish-sharma-and-his-beneficiaries-come-under-cbi-scrutiny-831260-1997-04-15) states:

When captain Satish Sharma ruled the Petroleum Ministry, a joke in the corridors of Shastri Bhavan, where the ministry is housed, had it that an allotment letter for a petrol agency was easier to obtain than a ration card. All that was required was the right connection.

At times the allotment letter was just a phone call away. And depending on the "weight" of the recommendation, Sharma would favour his visitors with a petroleum dealership, a cooking gas agency, or a kerosene oil depot.

But the good Captain's benevolence boomeranged last November when the Supreme Court, acting on a public-interest petition, cancelled 15 such allotments, terming them mala fide. It also slapped a Rs 50 lakh fine on Sharma for behaving "as if he was a king and the petrol pumps his personal property".

Ministry officials point out that Sharma may not have got "cuts" for these allotments, most of which were doles meant to placate party-men, including dozens of Congress workers from his constituency Amethi, and Andhra Pradesh, Rao's home state.

What however is known to everyone in the Petroleum Ministry is that the "going rate" for a petrol dealership was anywhere between Rs 20 and Rs 30 lakh, depending on the location.

Another report ‘Capt. Satish Sharma discharged in petrol pump cases’ dated Nov 22, 2005 at https://zeenews.india.com/news/nation/capt-satish-sharma-discharged-in-petrol-pump-cases_257505.html informed the readers that The investigating agency had filed the closure report in the cases against Sharma, who was Union Minister of Petroleum and Natural Gas between 1993 and 1996, as the Home Minister refused sanction for his prosecution. Also, The court, however, said the cases against the other 14 accused would continue and asked the CBI to file an investigation report at the earliest.

Relevant extract of a third report ‘SC reviews decision to fine ex-Petroleum minister’ dated Jan 21, 2007 at https://www.hindustantimes.com/india/sc-reviews-decision-to-fine-ex-petroleum-minister/story-4dew3bZLkiiE9whP2i93QJ.html is as given below (emphasis added):

Over seven years after recalling its order to former Petroleum Minister Capt Satish Sharma to pay a fine of Rs 50 lakh as fine in the petrol pump allotment scam, the Supreme Court now finds 'considerable force' in arguments against its decision.

The issue was raised in a petition filed by one Vikram Dhillon who claimed a compensation of Rs 10.5 lakh for being 'wrongfully' denied admission in a Medical College in Haryana.

Though the court dismissed his petition but during the course of arguments, a Bench of Chief Justice YK Sabharwal (since retired), Justice CK Thakker and Justice RV Raveendran had an occasion to reflect on Capt Satish Sharma’s case.

Petitioner’s counsel had argued that in a review petition the court was not right in setting aside the direction for payment of Rs 50 lakh personally from Capt Sharma, particularly when it had recorded a finding earlier that the allotments were illegal, improper and unconstitutional.

He had also submitted that the apex court applied a wrong test in a review by adopting an analogy of a criminal trial and referring to provisions of the Indian Penal Code.

Further, it did not apply the correct test by observing that in case of criminal breach of trust, entrustment of property was an essential ingredient, which was not proved, he had contended.

On a PIL by Common Cause, a Bench headed by Justice Kuldeep Singh (since retired) had in 1996 cancelled the arbitrary allotments of petrol pumps/LPG distributorships made by Sharma in favour of his friends/relatives and imposed a penalty of Rs 50 lakh on him.

However, on a review petition filed after Justice Singh’s retirement, the order was recalled in 1999.

(Just for the record, I could not access the order of this bench at https://main.sci.gov.in/judgments. Since the search could not be carried out using the judge’s name, it was done for the dates between 01/12/2006 and 31/01/2007. I could not find this case in the list of 186 cases displayed.)

Two facts that struck me in these three verdicts of the apex court are:

One, the order dated 25/09/1996, considering the 15 cases of ‘discretionary allotment’ of petrol pump was in 26 pages, the order dated 04/11/1996, convicting Capt Satish Sharma was in just 5 pages while the one exonerating him, dated 03/08/1999, was in 61 pages. It reminded me of the quip: a person’s depth of knowledge of a subject can be measured by his ability to express it precisely.

Two, the judgment of 03/08/1999 began initially on a review petition with different prayers- for constituting Lokpal, making CAG, CVC, CBI etc effective- but was effectively diverted to a review of the judgment dated 04/11/1996. And this was a case that had its origins in 1990, when Capt Satish Sharma was not even the Petroleum Minister.

Now, the disturbing question: Ab initio the case was misuse of discretion by the minister in the allotment of petrol pumps. So, who has erred? The bench of 1996 which imposed Rs 50 lakh penalty on Capt Satish Sharma? Or, the bench of 1999, which reviewed that judgment and recalled the order of 1996? With a 3 judge bench headed by the then CJI Y K Sabharwal in 2007 openly expressing that the 1999 order was legally wrong, where does that leave the citizens of this society, supposedly ruled by law, , seeking justice as interpreted by the courts?

There are two questions that struck me as I searched the website of the Supreme Court for copy of the orders.

The table below shows the chronology of events when viewed based on docket numbers, case numbers and actual dates of judgment.

Docket Numbers	Case Numbers	Judgment Dates	Judgment Dates as shown in Search Result
76199/1990	WP(Civil) 821/1990	03/08/1999	01/01/1970
18305/1994	WP(Civil) 26/1995	25/09/1996	01/01/1970
18306/1994	WP(Civil) 24/1995	04/11/1996	01/01/1970

Legend: 1 2 3

Now the first question is when the orders dated 25/09/1996 and 04/11/1996 are practically pertaining to the same case- the first one cancelled some allotment orders of the minister and issued show cause notice for not imposing penalty on him and the next one, after receipt of reply from the minister, convicted him and imposed the - how come they were registered under two dockets in 1994? And why is the case numbers allotted to two consecutive dockets not consecutive?

The third is why was the date of judgment in the search result showing up as 01/01/1970 in all these cases? For now I will leave it for the readers to ponder

Since the analysis of just one case has taken up most of the space meant for this critique, I shall conclude this with some assertions made by the courts in these judgments:

From the judgment of 25 September, 1996-

- None of these cases fall within the categories placed before this Court in writ petition (civil No. 886/93 titled Centre for public interest ligation vs. Union of India & Anrs. decided on March 31, 1995 but even if we assume for argument sake that these cases fall in some of those or similar guidelines the exercise of discretion was wholly arbitrary.

- … leaving the authorities to enjoy absolute discretion even within the guidelines would inevitably lead to gross violation of the constitutional norms when the persons for allotment are picked up arbitrarily and discriminatory (sic) (As an aside, may I ask, two questions? One, what about those who enjoy absolute discretion without even any guidelines? And, two, how about replacing ‘persons for allotment’ with ‘cases for judgment’?)

- This Court in Lucknow Development Authority versus M.K. Gupta (1994) 1 Supreme Court Cases 243, approved "Misfeasance in public offices" as a part of the Law of Tort. Public servants may be liable in damages for malicious, deliberate or injurious wrong-doing.

From the judgment of 04 November, 1996-

- "All these allotments are wholly arbitrary nepotistic and are motivated by extraneous consideration."

From the judgment of 03 August, 1999-

- The Civil Service as such has no Constitutional personality or responsibility separate from the duly constituted Govt. (Really? Aren’t they the ones who provide continuity to government?)

- "It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away."

These are what I call judicial flip flops. And they are very common in our courts, quite often with serious repercussions.

Currently there is an IIT alumni, Anil Gidwani, who is on a Fast unto Death at Azad Maidan, Mumbai since 26 Jan 2022. He had done his post graduation from the US of A and had a successful career there for many years before returning to serve in India in 1998. A senior citizen, he is seeking speedy disposal of his cases pending with the courts in Mumbai. There is an online petition at https://chng.it/vyGxzhdFfL seeking support for his cause, which effectively is the cause of justice, which affects us all.

I dedicate this critique to the righteous justice seeker Anil Gidwani and two martyrs for the cause of justice-Indur K Chhugani and Mohini Kamwani-who have died, one due to covid and the other, reportedly by suicide, without getting justice.

Here is a Face book post, dated 30/04/2013 of Indur Chuggani:

Both PILs adjourned to 22nd June - Why? - I do not know.

- Appears Judges like to see me in court periodically - to double check "Is Chhugani still alive" --- Once they find he's still alive - they adjourn the case.

- Waiting for me to die - So that they can close the petition for demolishing 4000 illegal police chowkies across Maharashtra.

- My petition dragging on since 2007 - It was listed today at High Court

Mohini Kamwani, widow of a freedom fighter, had been illegally arrested by the police, acting, as per her, at the behest of land mafia who were trying to grab her property. She and her son were kept in jail for 4 days. The gutsy senior citizen sought justice and got an order in her favour, granting compensation for wrong done to her and directing the authorities to take action against the police personnel. While the compensation was paid justice did not prevail because the wrong doers were not punished. She had even gone to the then Chief Justice of Mumbai High Court and threatened him with citizen’s arrest. The lady had even protested in front of the apex court in February 2016. She had been posting her updates on Face book regularly, till a couple of years back. She has reportedly committed suicide on 30 October 2021, at a ripe old age of 83 years, due to financial problems.

Here is one of her last Face book posts: