2G scam: SC asks govt to file affidavit on PM's silence

NEW DELHI: The Supreme Court on Thursday asked the Centre to file an affidavit on Prime Minister's silence on Janata Party president Subramaniam Swamy's petition seeking sanction to prosecute former telecom minister A Raja in the 2G spectrum scam case.

The Supreme Court asked the Centre to file the affidavit by Saturday and fixed the hearing on Tuesday.

The apex court also said that showing the files were not enough. It has to say owe the reasons for the delay so that any concealment of fact, the court can fix the accountability. The SC wants the affidavit to be filed on behalf of the Prime Minister by a responsible officer explaining the 11 long months inaction and silence.

The court had on Tuesday asked the government to explain within two days why the "sanctioning authority" - in this case, the Prime Minister - remained silent for 11 months over a request seeking sanction for the prosecution of A Raja in the 2G case.

In a reference to PM Manmohan Singh's oversight role, the SC referred to a petition submitted by Subramaniam Swamy to the PM, to say: "We are on the alleged inaction and silence of the sanctioning authority for 11 months on Swamy's petition seeking sanction to prosecute....This what is worrying us."

An SC bench comprising Justices G S Singhvi and A K Ganguly hearing the 2G spectrum case asked solicitor general Gopal Subramaniam to examine relevant files before giving his response on Thursday on why it took the government a month short of a year to tell Swamy that prosecution would be "premature" at this stage.

The SC's remarks came on the same day as the Comptroller and Auditor General's scathing report on the allocation of 2G licences in which CAG has not only indicted Raja but also indirectly referred to an oversight failure of the ex-minister's role by saying "there is an imperative need to fix responsibility and enforce accountability for lapses".

SC's query on why the PM did not decide either way - whether there was merit in Swamy's petition or not - is likely to harden the Opposition demand for a joint parliamentary committee to probe the alleged scam. This, in turn, may complicate the logjam in Parliament as the government is expected to resist a JPC.

The solicitor general defended the PMO by saying that as the CBI was probing the alleged scam, the "sanctioning authority" (PM) was perfectly within its rights to inform Swamy that it would await the outcome of the investigation before deliberating on whether the Raja should be prosecuted or not.

But the bench left little room for confusion. It put its question based on dates and facts - Swamy had filed a petition before the PM on November 29, 2008 seeking sanction to prosecute Raja; CBI had lodged an FIR on October 21, 2009 against "unknown persons"; and the response to Swamy's petition came on March 19, 2010, from the secretary in the department of personnel and training (DoPT) on behalf of the PMO saying the petition was "premature".

"What happened between November 29, 2008 and October 21, 2010?" the bench wanted to know, adding, "We take it that the sanctioning authority was right in awaiting the outcome of a pending inquiry to defer a decision on a private petition seeking sanction to prosecute a minister. But why was the authority silent for 11 months preceding the lodging of the FIR."

In view of these questions, the bench had felt it would be proper to issue notice to the government and ask for a response to Swamy's charge of "total inaction and silence" against the sanctioning authority.

With the solicitor general appearing for DoT, the bench asked him whether he was ready with a response.

Subramanaim said he was. Referring to DoPT secretary Shantanu Consul's letter to Swamy, the Bench expressed its nagging doubt: "whether the papers (Swamy's petition) were ever placed before the sanctioning authority?" The SG emphatically put this doubt to rest by saying the DoPT letter was an official communication and that the "sanctioning authority was in cognizance of the petition".

He said: "The sanctioning authority is not overlooking the petition. But, since it required application of mind to the outcome of the probe, the same was conveyed to Swamy by DoPT. It was aimed to convey that the petition is just deferred to await outcome of the detailed probe."

But the bench wasn't satisfied. It said: "It's not that Swamy's petition was vague. And his right to seek sanction to prosecute, which is a legal right, does not depend on the ipse dixit (a Latin phrase meaning 'he himself said it') of anybody. And the DopT letter terms the petition as 'premature'. Does this mean his right to to seek sanction has not ripened yet? And did the sanctioning authority know at the time of filing of the petition that there will be a CBI probe? We are on alleged inaction and silence. The outcome of the CBI inquiry is totally outside his control. This what is worrying us. Can some one's legal right be asked to wait?"

Attempts by Subramaniam to divert focus from the word "premature" by saying that it just meant to convey that a decision on the petition was being deferred failed to convince the bench. It said: "When the letter comes from the highest authority, the language is carefully used."