|M A I L B A G||
Saturday, August 28, 1999
Sharma case poses legal questions
THE review judgement by the Supreme Court in the case of Satish Sharma setting aside the earlier judgement of the Supreme Court imposing a penalty of Rs 50 lakh on him raises important constitutional and legal questions.
Earlier Bench had recorded a finding that all those allotments made by Mr Sharma, were wholly arbitrary, nepotistic and were motivated by extraneous considerations. The Review Court also recorded its own findings in a more devastating form as follows:
.....the conduct of the petitioner in making allotment of petrol outlets was atrocious, specially those made in favour of the members, Oil Selection Board, or their sons, etc.. and reflects a wanton exercise of power by the petitioner. This court has already used judicial vituperative in respect of such allotments and we need not strain our vocabulary any further in that regard...
Notwithstanding these strong observations the court has surprisingly gone ahead to review the earlier judgement. This reminded me of my favourite detective novelist Agatha Christie, whose style always had the unsuspecting end. In one of her novels written in first person, narrator gets your attention fixed on one or other characters who you feel is the murderer and yet when you reach the end, you find that the narrator himself is the murderer.
In similar vein I had assumed that Sharma could not escape the wrath of the Review Court which had found his action actrocious, but again like the detective novel, I was mistaken because it turned out that Sharma was the poor victim and the guilty were the erstwhile judicial colleagues.
Even though the court accepted the principle that in action for tort, exemplary damages can be awarded when the conduct of government or its officers is found to be arbitrary, it accepted the review by laying down the principle which if allowed to prevail would damage the whole fabric on which a representative democracy is based, namely its finding that Sharma did not on becoming a minister assume the role of a trustee in the real sense nor does a trust come into existence in respect of government properties.
The principle of ministers responsibility, for any maladministration is well established.
According to Dicey, acts of ministers are subject to the rule of law. Thus a minister is liable to criminal or civil proceedings in a court of law.
The Supreme Court of Canada (1959) awarded damages against the Prime Minister of Quebec personally for cancellation of a restaurant owners liquor license, on the ground that the cancellation was an abuse of discretion.
Another worrisome finding is the proposition of law that as Common Cause, (an NGO of impeccable integrity) had not applied for a petrol pump, it could not have obtained damages for itself and therefore no tort of misfeasance had been committed by Sharma. These findings go against the well-established law of Public Interest Litigation evolved by the Supreme Court over the last 30 years.
Another reason for review mentioned is as to how damage could be paid to the State as it had not suffered any loss. But the principle has been settled in English courts that although the Crown may have suffered no loss, the Court orders the money to be handed over to the Crown, because the Crown is the only person to whom the case property can be paid. This difficulty, in any case, could have been easily overcome by directing Sharma to pay the amount instead to Kargil Martyrs Fund no one would have objected.
This is in response to Mr G.B. Singh Kahlons letter on Factors behind milk mafias (August 9) Mr Kahlon has proposed a number of measures, which appear to be grounded in a number of misconceptions and preconceptions.
He talks of overall shortage of milk and burgeoning gap between supply and demand as the main reason for adulteration. Milk production in India is rising continuously and at a rate faster than the population growth. Also, he has not been able to explain if that be the case, then why are there no mafias in western, southern and eastern India but only in a 200-km belt around Delhi? This is clearly due to the criminal, political, business nexus and non-implementation of the Prevention of Food Adulteration Laws due to the existence of this nexus. As far as availability of milk at affordable prices is concerned, a comparison with other food products will show that milk has fared much better!
Being a Retired Milk Commissioner of the Government, he finds it easiest to take a pot shot at the NDDB, which has done us proud by making India number one in milk production.
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